The Expert Panel’s first report focuses on reforms to police powers in relation to counter-terrorism and the presumption against bail and parole. It contains 16 recommendations covering :
- the use of force
- investigative and preventative detention
- presumptions against bail and parole
- special police powers during declared events
- the protection of criminal intelligence
You can download the full report here
The executive summary and recommendations are provided below
Executive summary
The Victorian Government appointed an Expert Panel, consisting of Ken Lay AO APM and the Hon. David Harper AM QC, which commenced its review on 26 June 2017. The Panel’s Terms of Reference require that it complete its work in two reports. Report 1 is focused on reforms to police powers to deal with terrorism. Report 2 has a broader remit, and considers reforms necessary to enhance the ability of relevant agencies and institutions to prevent, investigate, monitor and respond to terrorist attacks.
In this Report 1, the Panel makes a total of 16 recommendations relating to the following matters:
- Use of force (Chapter 2)
- Investigative and preventative detention (Chapter 3)
- Presumption against bail and related information sharing (Chapter 4)
- Presumption against parole and related information sharing (Chapter 5)
- Special police powers (Chapter 6)
- Protection of criminal intelligence (Chapter 7)
The substance of the Panel’s recommendations in relation to each of these matters is outlined below.
Chapter 2 discusses Victoria Police’s powers to use appropriate force in response to, or to prevent, a terrorist act. The Panel considers the adequacy of Victoria’s current ‘use of force’ provision, set out in section 462A of the Crimes Act 1958. This consideration is undertaken in light of recent changes to the equivalent NSW provisions in response to the Coronial Inquiry into the Lindt Café siege. The Panel recommends (Recommendation 1) changes to provide greater confidence to police and protective services officers who may be called upon to use force as part of a response to a terrorist threat.
Chapter 3 considers whether changes are required to Victoria Police’s powers to detain a person, without charge, in order to prevent a terrorist attack or to preserve evidence relating to an attack. In 2016, the Council of Australian Governments (COAG) gave in-principle agreement to strengthening pre-charge detention laws based on a NSW model. NSW subsequently enacted an investigative detention regime that permits police to question a detained person for investigative purposes.
The Panel recommends (Recommendation 2) changes to Victoria’s current preventative detention laws to: (a) permit police to question a suspect; (b) permit police to take a person into custody without first obtaining a Court order; (c) extend the maximum period for interim detention from 48 hours to four days; and (d) provide for an appropriate mechanism to protect sensitive criminal intelligence. The protection of criminal intelligence is considered separately as part of Chapter 7.
The Panel does not recommend adoption of the NSW ‘stand-alone’ investigative detention regime. It does, however, recommend that the current scheme of preventative detention be amended to provide for questioning of an investigative kind, and to include a detailed treatment of the circumstances in which police may question a detained person and the manner in which that questioning must be conducted. The Panel recommends that measures be put in place to identify individuals who may be particularly vulnerable under a modified scheme of preventative detention, including individuals who are disabled or who may suffer from mental illness. The Panel recommends that additional safeguards apply if such individuals are detained. The Panel reserves to Report 2 its consideration of: (a) whether the modified scheme for preventative detention should extend to persons aged 14 or 15; and (b) the additional safeguards required to protect the interests of persons aged under 18 who are detained.
Chapter 4 makes six recommendations to implement the Government’s commitment, as part of a 2017 COAG agreement, to introduce a presumption against granting parole to offenders who have demonstrated support for, or have links to, terrorist activity.
Recommendation 3 is that Victoria amend its laws to provide for a presumption against parole for ‘terrorism related offenders’, and that the definition of this term be sufficiently broad to ensure that the parole process captures the risk of terrorism as comprehensively as possible.
Recommendation 4 is that the Adult Parole Board or the Youth Parole Board (as applicable) should only be able to grant parole to a terrorism related offender if there are exceptional circumstances (in the case of a person convicted of a terrorist offence) or compelling reasons (for all other terrorism related offenders) for doing so.
Recommendation 5 requires the Adult Parole Board or the Youth Parole Board (as applicable) to cancel parole once it becomes aware of information that indicates that the offender is a terrorism related offender or that a known terrorism related offender presents an increased terrorist risk. Either board may choose not to cancel parole if there are exceptional circumstances (for persons convicted of a terrorist offence) or compelling reasons (for all other terrorism related offenders) for doing so.
Recommendation 6 is that parole decisions of the Youth Parole Board in relation to terrorism related offenders should be guided by additional considerations that address the special requirements of young persons within the youth justice system.
Recommendation 7 is that adult terrorism related offenders may only be released on parole by the Serious Violent or Sexual Offender Division of the Adult Parole Board (or equivalent), as part of its existing two-tiered decision-making process.
Recommendation 8 is that the Victorian Government and the Commonwealth Government enter into a Memorandum of Understanding to:
- confirm the roles and responsibilities of, and the information sharing arrangements between, members of the Victorian Joint Counter-Terrorism Team
- set out the responsibilities, including information sharing responsibilities, between the Joint Counter-Terrorism Teams in all jurisdictions.
The Panel recommends, further, that information sharing arrangements between police and intelligence agencies, and entities forming part of the youth justice system (including the Youth Parole Board), should be addressed as part of this Memorandum of Understanding or as a supplementary Memorandum of Understanding.
Chapter 5 makes four recommendations to implement the Government’s commitment, as part of a 2017 COAG agreement, to introduce a presumption against granting bail to offenders who have demonstrated support for, or have links to, terrorist activity.
Recommendation 9 is that Victoria amend its laws to provide for a presumption against bail for ‘terrorism related offenders’, and that the definition of this term be sufficiently broad to ensure that the bail process captures the risk of terrorism as comprehensively as possible.
Recommendation 10 is that a court should only be able to grant bail to an accused person to whom the presumption applies if it is satisfied that there are compelling reasons or, in the most serious matters, exceptional circumstances for doing so.
Recommendation 11 is that only a court may grant or refuse bail to an accused person to whom the presumption applies.
Recommendation 12 is that the Memorandum of Understanding recommended in Chapter 4 should also address information sharing requirements in relation to bail decisions to ensure that prosecutors have the evidence they need to establish that the presumption applies.
Chapter 6 examines the special police powers contained in the Terrorism (Community Protection) Act 2003 (Vic) (TCPA). These are significant and exceptional powers that are intended only to be used by police in response to a terrorist attack or in response to an imminent threat of such an attack. Recommendation 13 is to retain the requirement for the Premier to approve an interim authorisation (which enlivens the exercise of the special powers) but make certain amendments to address police concerns that existing requirements are overly rigid. The Panel recommends additional amendments to: (a) enhance Victoria Police’s ability to respond to a terrorist attack (or the threat of such an attack), including enabling protective services officers to assist police in this task; and (b) confer on police a power to take control of premises and ‘things’, such as premises or resources, for operational uses if it is necessary for them to do so for the purposes of responding to a terrorist attack (or the threat of such an attack).
Recommendation 14 is that Victoria Police continue to trial and streamline its processes to seek the Premier’s approval for an interim authorisation.
Recommendation 15 is for further amendments to the TCPA to ensure consistency with proposed changes to the threshold test for terrorist acts that are yet to occur under the current Victorian laws permitting preventative detention (contained in Part 2A of the TCPA).
Chapter 7 considers the matter of sensitive criminal intelligence and the appropriate means of protecting that information under the TCPA. The Panel recommends (Recommendation 16) a single process for protecting criminal intelligence apply to procedural applications made by police under the TCPA. The process recommended by the Panel includes a broader definition of what constitutes criminal intelligence, a closed court procedure and a role for special counsel. The Panel has sought to strike the right balance between the public interest in enabling law enforcement authorities to rely on, and protect, criminal intelligence and the public interest in ensuring that the respondent can meaningfully respond to the case put against them.
Recommendations
Recommendation 1
The Panel acknowledges that section 462A of the Crimes Act 1958 (Vic) provides adequate protection from criminal liability, and that it is well understood by Victoria Police personnel. Nonetheless, the Panel recognises the need to provide confidence to police officers and protective services officers (PSOs) in exercising force, in particular where pre-emptive lethal force may be required to respond to a terrorist act.
Therefore, the Panel recommends that the use of force power should be clarified in a way that:
- is consistent with section 462A
- puts beyond doubt that it applies to pre-emptive action, including lethal force, employed in response to a life-threatening act where it may be the last opportunity to effectively and safely intervene
- applies to police officers and PSOs
The Panel suggests that this could be achieved by:
- maintaining the current wording of section 462A in a new subsection 1
- creating a subsection 2 that clarifies this provision in relation to pre-emptive lethal force
The Panel suggests the following wording for subsection 2:
For the avoidance of doubt, a police officer or protective services officer may use force, including pre-emptive lethal force, against a person who the police officer or protective services officer believes on reasonable grounds is likely to commit an indictable offence that will cause serious injury to, or the death of, another person.
Recommendation 2
The Panel notes:
- the existing scheme for preventative detention contained in Part 2A of the Terrorism (Community Protection) Act 2003 (Vic) and the fact that these laws suffer from a range of well documented deficiencies
- the Government’s in-principle agreement at COAG to use the NSW investigative detention scheme as a model for strengthened pre-charge detention laws
- the Government’s commitment to change the current threshold requirement for a person to be detained in relation to a terrorist act that is yet to occur from the current requirement for the terrorist act to be one that is ‘imminent and expected to occur, in any event, at some time in the next 14 days’ to a requirement that the terrorist act must be one that ‘is capable of being carried out, and could occur, within the next 14 days’.
The Panel recommends that the following changes be made to the existing preventative detention laws in Part 2A of the Terrorism (Community Protection) Act 2003 (Vic) to address some of the concerns relating to that scheme and to give effect to the COAG commitment to strengthen pre-charge detention laws:
- A new power for police to question a detained person regarding the terrorist act in relation to which the person was detained and that this new power be accompanied by:
- the establishment of appropriate rules, processes and procedures etc. relating to the circumstances under which a detained person may be questioned and the manner in which that questioning may take place
- the establishment of additional measures to safeguard and protect the interests of minors and other potentially vulnerable persons such as those with a cognitive or physical impairment.[1]
- The extension of the existing maximum interim detention period from a period of 48 hours to a period of four days.
- A new power for an authorised police officer (being a police officer appointed by the Chief Commissioner of Police) to take a person into custody for a period of interim detention without the requirement to first obtain an order from the Supreme Court.
- An appropriate mechanism for the treatment of sensitive criminal intelligence (the subject of Recommendation 16).
Recommendation 3
That the Victorian Government amend the Corrections Act 1986 (Vic) to include a presumption against parole for offenders who may pose a terrorist threat. This presumption should apply to a broad range of offenders (‘terrorism related offenders’), 3 including those who:
- have been convicted of a terrorism offence
- are, or have been, subject to a terrorism-related order
- have expressed support for terrorist activity or organisations
‘Terrorism related offenders’ should also include those who are otherwise assessed by police or intelligence agencies to be a terrorist risk. This includes offenders who have or have had an association or affiliation, sufficient to establish a terrorism risk, with a person or group that is:
- advocating or has advocated support for terrorist acts or violent extremism
- directly or indirectly engaged in preparing, planning, assisting, fostering the doing of, or doing a terrorist act
- a terrorist organisation within the meaning of Division 102 of Part 5.3 of the Criminal Code Act 1995 (Cth)
Recommendation 4
The Adult Parole Board or the Youth Parole Board should only be able to grant parole to a terrorism related offender if satisfied that there are exceptional circumstances (in the case of a person convicted of a terrorist offence) or compelling reasons (for all other terrorism related offenders) for doing so.
Recommendation 5
Unless there are exceptional circumstances (in the case of a person convicted of a terrorist offence) or compelling reasons (for all other terrorism related offenders), the Adult Parole Board or the Youth Parole Board must cancel the parole of an offender if it becomes aware of:
- information that indicates that the offender is a terrorism related offender
- if the offender is already a terrorism related offender, information that the offender presents an increased terrorist risk
Recommendation 6
Decisions of the Youth Parole Board in relation to parole, including decisions to grant, deny or cancel parole in relation to young, terrorism related offenders, should continue to be guided by additional considerations that address the special requirements of young persons within the youth justice system.
Recommendation 7
Adult terrorism related offenders may only be released on parole by the Serious Violent or Sexual Offender Division of the Adult Parole Board (or equivalent), as part of its existing two-tier decision-making process.
Recommendation 8
The Victorian and Commonwealth Governments should establish a Memorandum of Understanding to:
- confirm the roles and responsibilities of and information sharing arrangements between members of the Victorian Joint Counter Terrorism Team, including security-cleared Corrections Victoria staff
- set out the responsibilities, including information sharing, between the Joint Counter Terrorism Teams of all Australian jurisdictions (to ensure the effective oversight of the interstate movements of terrorism related offenders)
Either this or a supplementary Memorandum of Understanding should also set out information sharing arrangements between police and intelligence agencies and youth justice system agencies, including the Youth Parole Board.
Recommendation 9
That the Victorian Government amend the Bail Act 1977 (Vic) to include a presumption against bail for accused persons who may pose a terrorist threat. The presumption should apply to accused persons who:
- have been convicted of a terrorism offence
- are or have been subject to a terrorism-related order
- have expressed support for terrorist activity or organisations
The presumption should also apply to accused who are otherwise assessed by police or intelligence agencies to be a terrorist risk. This includes offenders who have or have had an association or affiliation, sufficient to establish a terrorism risk, with any person or group that is:
- advocating or has advocated support for terrorist acts
- directly or indirectly engaged in preparing, planning, assisting, fostering the doing of, or doing a terrorist act
- a terrorist organisation within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code
Recommendation 10
A court should only be able to grant bail to an accused person to whom the presumption applies in the following circumstances:
- If the accused has been charged with a ‘Schedule 2’ offence under the Bail Act 1977, the court must be satisfied that exceptional circumstances exist that justify the grant of bail
- If the accused has been charged with an offence that is neither a Schedule 1 nor a Schedule 2 offence, the court must be satisfied that compelling reasons exists to justify the grant of bail. 4
Note: a presumption against bail and a requirement to demonstrate ‘exceptional circumstances’ already apply to a person accused of a Schedule 1 offence under the Bail Act 1977 (including a Victorian terrorism offence) or a Commonwealth terrorism offence.
Recommendation 11
Only a court may grant or refuse bail to an accused person to whom the presumption applies.
Recommendation 12
The Memorandum of Understanding between Victorian Joint Counter Terrorism Team (JCTT) members in relation to parole should also address information sharing requirements for bail decisions by setting out the roles and responsibilities, including information sharing arrangements:
- between members of the Victorian JCTT in relation to bail decisions
- between the JCTTs of all Australian jurisdictions in relation to interstate movements of persons relating to bail decisions
Recommendation 13
That the requirement that the Premier’s approval of an interim authorisation be retained, but that Part 3A of the Terrorism (Community Protection) Act 2003 (Vic) be amended to:
- provide for an interim authorisation to operate without the Premier’s approval if he or she is not available, and that the Premier must be notified as soon as practicable after the authorisation is made
- provide that the Premier can revoke the interim authorisation
- extend the duration of an interim authorisation from 24 hours to 48 hours (in sections 21D and 21E)
- provide that the Premier may delegate his or her power to provide written approval
- extend the application of special police powers to protective services officers (and that these new powers be accompanied by requisite training)
- introduce a power to enable a police officer to take control of premises or things for operational purposes, if necessary for the purposes of the interim authorisation or authorisation
Recommendation 14
That Victoria Police continue to trial and streamline their processes for seeking approval for an interim authorisation.
Recommendation 15
That the requirement in sections 21D(1)(a) and 21D(4)(b) (that the terrorist act occur in the next 14 days) be replaced with the Commonwealth’s formulation for consistency.
Recommendation 16
Create a single process for the protection of criminal intelligence, applicable to relevant applications under the Terrorism (Community Protection) Act 2003 (Vic) (not criminal prosecutions), containing the following elements:
- a definition for ‘criminal intelligence’ similar to the definition used in the Criminal Organisation Control Act 2012 (Vic) that includes ‘significant damage to property or infrastructure’ and ‘national security’
- the court determines whether or not to grant a criminal intelligence protection order
- the court, at its discretion, may make a criminal intelligence protection order on the papers
- the test for determining whether to grant a criminal intelligence protection order should require the court to consider both the public interest in the protection of criminal intelligence and the public interest in ensuring that those against whom court orders are sought, are provided with sufficient information to respond meaningfully to the case put against them
- the court should be able to exclude the respondent (and their legal representatives) from both the protection application and the substantive application
- once a criminal intelligence protection order is made, the court may in its discretion use the criminal intelligence to determine an application in a way that does not disclose the information to the respondent or the respondent’s legal representative
- the respondent must be told everything except the criminal intelligence, and must be given an opportunity to make submissions, adduce evidence and produce material on the ultimate question in issue
- there must be protections against witnesses being compelled (by cross-examination or otherwise) to disclose criminal intelligence
- the court may appoint a special counsel to represent the interests of the respondent in both a protection application and substantive application
- the court must retain its inherent jurisdiction to:
- stay the proceeding for abuse of process if the non-disclosure of the criminal intelligence would result in an unfair trial
- not rely upon the criminal intelligence
- decide what weight to give to the criminal intelligence
Notes
- The possible extension of the scheme to include 14 and 15 year olds and the necessary safeguards for minors detained under the scheme requires further detailed and considered deliberation. The Panel will consider these matters as part of Report 2.
- The Panel considers the treatment of sensitive criminal intelligence in Chapter 7 of Report 1.
- This term is taken from sub-section 159A(1) of the Terrorism Legislation Amendment(Police Powers and Parole) Act 2017 (NSW). The Panel proposes a modified version of the NSW definition of this term.
- The reference to Schedule 1 and 2 offences relates to these schedules as amended by the Bail Amendment (Stage One) Act 2017 (Vic), which is yet to come into force.
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