BY SARAH MOULDS

The Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 (Cth) (the Bill) provides for the continued detention of terrorist offenders in prison, after their sentences have been served, where the offender poses an unacceptable risk to the community.

Precisely because of its exceptional character, the High Risk Terrorist Offenders Bill has also attracted the attention of three different parliamentary committees, all with different mandates to scrutinise proposed laws.

Taken together, the findings and recommendations of these committees have had a significant impact on the content of the enacted law, and have pruned back – but not lopped off – a number of the Bill’s most rights-intrusive features. The formal parliamentary scrutiny of the Bill also provides a glimpse into what appears to be an emerging dialogue between various components of the parliamentary committee system, where individual committees explicitly reference and endorse each other’s findings to add weight and influence to commonly held views about the need to improve or change the content of the proposed law.

This post looks to see if this example might tell us something broader about how parliamentary committees work together at the Commonwealth level, and whether there might be grounds for cautious optimism that this interaction could enhance the quality of scrutiny that a particular Bill receives.

The High Risk Terrorist Offenders Bill

The High Risk Terrorist Offenders Bill was introduced into the Senate on 15 September 2016. The Explanatory Memorandum stated that it proposed a continuing detention order (CDO) regime that allows for the Commonwealth Attorney General to apply for an order for the continued detention of ‘terrorist offenders’ serving custodial sentences ‘who are assessed by a judge in civil proceedings to present an unacceptable risk to the community at the time their sentences finish.’ The Court must also be satisfied that ‘there are no other less restrictive means that would be effective in preventing the unacceptable risk. Under the Bill, a person subject to a CDO ‘must be treated in a way that is appropriate to their status as a person who is not serving a sentence of imprisonment’, in line with what the Government described as the Bill’s preventative rather than punitive character.

Scrutiny by Parliamentary Committees

The High Risk Terrorist Offenders Bill was scrutinised by three parliamentary committees: the Senate Standing Committee on Scrutiny of Bills (SSCSB), the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and the Parliamentary Joint Committee on Human Rights (PJCHR). Each of these committees have different functions and mandates. For example, both the SSCSB and the PJCHR can be described as scrutiny committees, tasked with reviewing all Bills (and in the case of the PJCHR legislative instruments) to determine their compliance or otherwise with a prescribed set of scrutiny criteria. For the PJCHR, this scrutiny criteria comprises the rights contained in the seven core human rights treaties to which Australia is a party. The SSCSB has what Andrew Byrnes has described as a ‘traditional common law scrutiny mandate’. Under Senate Standing Order 24, it reports on whether a proposed law ‘unduly trespasses on personal rights and liberties’ along with other principles such as whether the proposed law ‘makes rights, liberties or obligations unduly dependent upon non-reviewable decisions’. When conducting scrutiny of Bills, the SSCSB and the PJCHR do not regularly call for submissions or hold oral hearings when examining a Bill, but rather rely on formal correspondence with the proponent of the Bill, usually a Minister, to answer any questions or respond to any concerns.

In contrast, the PJCIS is a subject- specialist committee with a mandate prescribed in section 28 of the Intelligence Services Act 2001 (Cth). Unlike the SSCSB and the PJCHR, Bills must be referred to the PJCIS for inquiry and report. The PJCIS regularly calls for submissions as part of its examination of a proposed counter-terrorism law, and can hold public as well as private hearings and receive classified evidence from relevant government agencies.

The three committees also differ when it comes to membership. The SSCSB is a Senate Committee with equal numbers of Government and non-Government members, but has a non-Government Chair, with a casting vote. The PJCHR and PJCIS are both Joint Committees, with members from both the House and the Senate, and Government Chairs. Both of these committees also make use of technical expertise, the PJCHR in the form of an expert legal advisor, and the PJCIS through the use of secondees from relevant government agencies.

These distinct features of the three committees explain the different scrutiny approaches adopted when reviewing the Bill and set the scene for the later discussion that identifies evidence of these three committees working together to enhance the quality of the scrutiny of the Bill.

Parliamentary Committee on Human Rights

The PJCHR issued its report on the Bill on 11 October 2016 and was the first Committee to table its report on the Bill. The PJCHR’s report focused on the character of the detention being authorised by the proposed CDO regime as well as the conditions of detention for those subject to CDOs.

As a starting point, the PJCHR pointed out that forms of detention that do not arise from a criminal conviction are permissible under international law, provided they are enacted in pursuit of a legitimate objective and are shown to be ‘justified by compelling reasons arising from the gravity of the crimes committed and the likelihood of the detainee’s committing similar crimes in the future.’

The PJCHR accepted that the Bill pursued a legitimate objective of protecting the community from the risk of terrorist attacks, however questions arose as to whether the regime ‘contains sufficient safeguards to ensure that preventative detention is necessary and proportionate to this objective’.

When considering the adequate of the safeguards in the Bill, the PJCHR referred to findings made by the United Nations Human Rights Committee (UNHRC) with respect to similar schemes introduced in NSW and Queensland, relating to sex offenders and ‘high risk violent offenders’. The UNHRC found that the continued detention in both cases was arbitrary and in violation of article 9 of the International Covenant on Civil and Political Rights (ICCPR).

The PJCHR also noted that there were features of the proposed CDO regime that were different to those subject to criticism by the UNHRC. These were the fact that (a) the Bill provides that the person subject to a CDO not be held in the same area or unit of the prison as those prisons who are serving criminal sentences (although exceptions apply) and (b) the Bill requires that a court only make a CDO if satisfied that there is ‘no other less restrictive measure that would be effective in preventing the unacceptable risk’. However, the PJCHR queried how these safeguards would work in practice, particularly given the wide range of exceptions available with respect to (a) and the broad discretion that could potentially be given to the applicant and the court in determining (b).

The PJCHR sought further information from the Attorney as to the extent to which the proposed scheme addresses the specific concerns raised by the UNHRC, and also sought advice from the Attorney as to how the court’s consideration of less restrictive measures under the Bill is to operate in practice. Advice was also sought with respect to the ‘feasibility’ of changes to the Bill that would address concerns regarding the: application of the civil standard of proof to proceedings, how assessments of future ‘unacceptable risk’ would be undertaken; and availability of rehabilitation programs to offenders that may be subject to the continuing detention order regime.

The fact that the PJCHR pointed to possible options for addressing these changes, for example by referring to the criminal standard of proof under section 40 of the Dangerous Sexual Offenders Act 2006 (WA) can be seen as a slight departure from the more common PJCHR approach to leaving more generally phrased matters to the Parliament to consider.

The PJCHR emphasised that it would require this further information by 27 October 2016, so that it could conclude its assessment of the Bill while the Bill was still in Parliament.

The information requested by the PJCHR from the Attorney was not provided by the time the PJCHR issued its Eighth Report of 2016, tabled on 9 November 2016. At the time of writing, the Attorney’s response remains outstanding. In its 9 November 2016 report, the PJCHR concluded that in the absence of the further information it requested from the Attorney, ‘it is not possible to conclude that the proposed continuing detention regime is compatible with the right to liberty.’

Scrutiny of Bills

A day after the PJCHR tabled its report, the SSCSB issued its Alert Digest report on the Bill, followed by a final Report, tabled on 30 November 2016.

The SSCSB’s reports on the High Risk Terrorist Offenders Bill include strongly worded concerns about the Bill, couched in terms that depart from the usual cautious and somewhat deferential style of the SSCSB. Also evident in the Reports of the SSCSB is a frustration at the lack of substantive response by the proponent of the Bill to some of the SSCSB’s concerns.

In its Alert Digest report the SSCSB observed that although proceedings for obtaining a CDO ‘are characterised by the usual procedures and rules for civil proceedings’, the proposed scheme for the continuing detention of terrorist offenders ‘fundamentally inverts basic assumptions of the criminal justice system’ that offenders may only be punished on the basis of offences which have been proved beyond reasonable doubt. This Bill, it said, ‘proposes to detain persons, who have committed offence and have completed their sentences for those offences, on the basis that there is a high degree of probability they will commit similar offences in the future.’

The SSCSB did not accept the material presented in the Explanatory Memorandum that pointed to the use of CDO-type schemes in other Australian jurisdictions in an attempt to justify the need for similar provisions under Commonwealth law. Further, the SSCSB did not accept the justification in the Statement of Compatibility that CDOs are protective rather than punitive in character. The Committee observed that:

[W]here the trigger for the assessment of whether or not a person poses an unacceptable risk to the community is prior conviction for an offence, the protective purpose cannot be clearly separated from the functioning of the criminal justice system. If the continuing detention is triggered by past offending then it can plausibly be characterised as retrospectively imposing additional punishment for that offence. If the continuing detention is not conceptualised as imposing additional punishment, then the fact that it is triggered by past offending on the basis of predicted future offending necessarily compromises the principles identified above.

In its 12 October 2016 Alert Digest report the SSCSB asked the Attorney General to provide further justification for the approach to CDOs in the Bill. A response was received on 27 November 2016. This response was then extracted in the SSCSB’s further Report on the Bill tabled on 30 November 2016. Second reading debate on the Bill resumed the next day.

In his response to the SSCSB’s concerns, the Attorney General accepted that there was a ‘connection between the operation of the scheme and a conviction which was secured through the criminal justice process’ but did not agree that the proposed CDO regime, which turns on the issue of the risk the person poses to the community, constitutes an additional punishment’. The Attorney also pointed to the amendments the Government intended to introduce in response to the PJCIS’s recommendations (outlined below). The SSCSB was unsatisfied with the Attorney’s response and reiterated its earlier comments.

The SSCSB also raised concerns with the provisions of the Bill that provided for a wide range of exceptions to the general principle that a person subject to a CDO must be treated in a way ‘appropriate to their status as a person who is not serving a sentence of imprisonment.’ The exceptions included ‘reasonable requirements necessary to maintain the management, security, or good order of the prison’. The SSCSB took the view that these broad exceptions effectively allow a person subject to a CDO to be ‘treated and detained in the same manner and in the same area as persons serving prison sentences’ and thus appear to ‘undermine the stated non-punitive nature of the scheme’.

After considering the Attorney’s response to these concerns, the SSCSB remained of the view that the exceptions were too broad and appeared to impose a ‘subjective approach to where the person is to be accommodated, based on what prison authorities consider necessary for the good order of the prison.’

Parliamentary Joint Committee on Intelligence and Security

The PJCIS tabled its report on the Bill on 4 November 2016, just over seven weeks after the introduction of the Bill and in time for the report to be considered prior to the finalisation of the second reading debate. By this date, both the PJCHR and the SSCSB had issued their first reports on the Bill, but had yet to receive responses to their requests for information from the Attorney General.

At 125 pages, the PJCIS’s report was far more detailed than that of the other committees and reflected the public consultation process that formed part of the PJCIS’s inquiry. The PJCIS made 23 recommendations for changes to be made to the Bill and the Explanatory Memorandum, and subject to these changes recommended that the Bill be passed.

The key issues raised by submission makers to the PJCIS inquiry included those matters forming the focus of the PJCHR and SSCSB reports. In its report, the PJCIS refers extensively to the report of the PJCHR in its analysis.

In addition to these matters, the PJCIS report traverses a range of operational and procedural features of the Bill in far greater detail than either the SSCSB or the PJCHR. For example, the PJCIS report includes detailed discussion on the scope of the proposed CDO regime, including consideration of the coverage of preparatory offences. In response to these issues, the PJCIS recommended that the scope of the CDO regime be amended to remove the treason offences and those offences relating to the publication of recruitment advertisements.

The PJCIS report also looks closely at the process for making an application for a CDO, reflecting submission makers’ concerns relating to the timing of CDO applications, the standard of proof to be applied) and the matters to be considered by the Court when making a CDO. The PJCIS recommended a number of changes to these processes, including that the Bill be amended to clarify the rules of evidence to apply when making a CDO, and requiring the AG to undertake ‘reasonable inquiries’ to ascertain any facts that could support a finding that the CDO should not be made and provide this information to the offender. The PJCIS also recommended making changes to clarify that after receiving an application for an interim CDO the court must hold a hearing and be satisfied that there are reasonable grounds for considering that a CDO should be made.

The PJCIS report also considers the role of relevant experts and assessment tools within the proposed CDO regime, outlining concerns expressed with respect to the appointment of a relevant expert to assess the risk posed by the offender and the validity of risk assessment tools and how these tools would be developed. The PJCIS made a number of recommendations to clarify these features of the Bill, including clarifying that each party may bring forward their own exerts and to allow the court to appoint a relevant expert of its own.

Strong concerns were expressed by legal organisations about the offender’s access to information and legal representation, and about the potential use of ‘secret information’ to support a CDO application. The PJCIS made a number of recommendations designed to ensure that wherever possible the offender should be provided with the information upon which the CDO was based, and be given the opportunity to obtain legal representation, including giving the court the power to stay proceedings or order reasonable legal representation costs be met by the state.

Substantive consideration was also given to the oversight arrangements for the CDO regime, and a recommendation made that that a sunset clause of 10 years be applied to the CDO regime, and that the regime be subject to review by the PJCIS and the INSLM.

When making these recommendations for changes to the CDO regime, the PJCIS was conscious of the discussions that featured in the SSCSB and PJCHR reports relating to the legality of continuing detention orders in other Australian jurisdictions. Particular reference was made in the PJCIS report to Fardon v Attorney-General (Qld) where the High Court considered whether the preventative detention regime in place in Queensland for sexual offenders was compatible with the separation of powers doctrine central to Chapter III of the Constitution. In response to questions from the PJCIS, the Attorney General’s Department confirmed that it had sought advice from the Solicitor General and the Australian Government Solicitor on the constitutional validity of the Bill. The PJCIS recommended that the Government obtain further legal advice from the Solicitor General or equivalent on the final form of the Bill.

In its conclusion on the Bill, the PJCIS recognised that the provisions of the Bill are ‘extraordinary’, but also recognised that they are designed to respond to the ‘extraordinary security threat that our community currently faces”. However, the PJCIS went on to warn that when adopted such extraordinary measures, efforts must be made to ensure that they are ‘appropriately targeted and include adequate safeguards to ensure their proportionality’. This, the PJCIS concluded, was what it had sought to do by making its 23 recommendations for amendment to the Bill and its Explanatory Memorandum.

The Government accepted all of the PJCIS’s 23 recommendations and moved amendments to this effect on 28 November 2016. It also tabled a supplementary Explanatory Memorandum that directly attributed the amendments to the recommendations made by the PJCIS.

The work of the PJCIS also received praise from both Government and Opposition members of Parliament, although not all commentary was positive. Of the 13 second reading speeches made with respect to the Bill, all but two spoke positively and in some detail about the scrutiny undertaken by the PJCIS. Unsurprisingly this included some members of the PJCIS, but also non-members.

This clear and positive response to the PJCIS report can be contrasted with the complete absence of direct reference to the work of the SSCSB or the PJCHR in the Parliamentary debates on the High Risk Terrorist Offenders Bill. This, coupled with the frustrations expressed by both the SSCSB and the PJCHR with respect to lack of timely responses to their requests for information, could suggest a comparative lack of respect for the work of these scrutiny committees, at least when compared with the PJCIS. However, , key issues explored by the PJCHR and the SSCSB and appear to have permeated into the work of the PJCIS, suggesting that the impact of these committees may be more significant than the parliamentary debate or schedule of amendments reveals.

Evidence of Committees in Dialogue

Parliamentary scrutiny of the High Risk Offender’s Bill reveals some interesting insights into the differences in analytical approach and language and style adopted by the particular committees. It also provides some evidence that parliamentary committees can work together to enhance the quality of scrutiny that a particular Bill receives. For example, there appears to be an emerging congruence in both the key issues that form the focus of the three Committee’s reports and the analytical framework being applied by each of these committees when assessing the Bill. This can be seen in the way that each committee first looks to evaluate the necessity for the proposed regime and legitimacy of the end being sought to be achieved by the Bill, and then asks whether the provisions of the Bill constitute a proportionate means of achieving that end. This step undertaken in explicit terms by the PJCIS and the PJCHR, with reference to the relevant international human rights law concepts, but is also undertaken in a less explicit way by the SSCSB, with reference to established principles of criminal law.

As might be expected from the only non-Government majority member Committee, the SSCSB is the most strident in terms of its rejection of the explanations provided by the Government on these issues, but the PJCHR also concludes that without further information, it cannot describe the regime as rights compliant. The PJCIS is far more deferential to the explanations offered by the Government through the submission process, however it too recommends that changes be made to the content of the Bill and its Explanatory Memorandum.

All three committees also strongly urged the Government to either provide or seek further expert legal advice about key aspects of the proposed CDO regime, including the constitutionality of proposed changes to the scheme (in the case of the PJCIS) and the extent to which the proposed CDO regime differed from the continuing detention regimes in NSW and Queensland that were subject to international and domestic legal challenge.

This congruence in analytical approach is supported by frequent and direct reference by the PJCIS to the work of the SSCSB and the PJCHR in its reports, and by the strong reliance on the information contained in the SSCSB and the PJCHR reports by the influential submission makers to the PJCIS’s inquiry. In this case study, the PJCIS also explicitly supports the PJCHR calls for the provision of information in response to its early report.

The Government also appears to be recognising that parliamentary committees interact with each other, share information and at times, influence each other’s findings and views. This can be seen by the reference by the Attorney to the Government’s acceptance of the PJCIS recommendations in response to a number of the issues raised by the SSCSB in its Alert Digest report.

Barriers to Effective Committee Dialogue

If constructive dialogue is occurring among the three parliamentary committees tasked with scrutinising the High Risk Offenders Bill, it is taking place despite the short time frames in which committees are often asked to inquiry into or scrutinise proposed counter-terrorism laws and the difficulties associated with receiving a timely response from Government to requests for further information.

For example, in the case of the SSCSB, the Attorney General’s response to the committee’s Alert Digest report was received on 27 November 2016, leaving the SSCSB with only three days to table its final Report before the resumption of the second reading debate. Similarly, the PJCHR was unable to reach clear conclusions on key aspects of the Bill due to the absence of response to its request for further information. This left both the PJCIS and the Parliament without the benefit of the final views of either the SSCSB or the PJCHR. This, coupled with the timing of the tabling of the PJCIS report, meant that the neither the PJCHR nor the SSCSB were able to reflect upon the content of the PJCIS’s report in their final reports on the Bill.

Despite this, the early reports of both the PJCHR and the SSCSB were clearly useful to the submission makers engaging with the PJCIS and to the committee itself, even if they were not able to present a concluded view or publish the Attorney’s response to the Committee’s questions and requests for information. This suggest that whilst timing issues can reduce the potential for dialogue between different parliamentary committees, it may not be fatal, provided early reports can be issued quickly by the scrutiny committees.

What might this tell us about the system of parliamentary scrutiny at the Commonwealth level?

While great care must be taken before extrapolating generalities from one case study example, at the very least, this case study allows us to see three different committees working together and thus may reveal something about the broader committee system at the Commonwealth level. In particular, it may allow the following four preliminary findings to be drawn, that could be tested by more comprehensive studies of parliamentary committee system:

  1. Detailed, and multifaceted, formal parliamentary scrutiny does not, of itself, guard against the enactment of rights abrogating laws. However, significant rights enhancing improvements can be made as a result of the work of parliamentary committees, with the PJCIS appearing particularly well placed to have a strong and direct legislative impact.

  2. Multi-committee review significantly improves both the breadth and the quality of the information available to the Parliament about the Bill.

  3. The membership, functions, and processes committees that have strong legislative impact, in this case the PJCIS, can help identify opportunities to improve the legislative impact of other committees within the system. Similarly, the committees with clear and predictable analytical frameworks, such as the SSCSB and the PJCHR, have something to offer those committees searching for a framework to evaluate competing public interests.

  4. When seeking to evaluate Australia’s model of parliamentary scrutiny, whether as part of the parliamentary model of rights protection, a means to hold the Executive Government to account, or as part of a deliberative process, it is important to consider how different components of the system interact or engage with each other. If one particular committee is evaluated in isolation, it is possible that its true influence or impact could be underestimated.

Sarah Moulds is a PhD candidate at the University of Adelaide and a Senior Project Officer at the South Australian Law Reform Institute. 

Suggested citation:  Sarah Moulds  ‘Committees in Dialogue: Parliamentary Scrutiny of the High Risk Terrorist Offenders Bill‘ on AUSPUBLAW  ( January 2017) <https://auspublaw.org/2017/01/committees-in-dialogue/>