Executive Summary Expert Panel on Terrorism Report 1
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.