Executive Summary - Expert Panel on Terrorism Report 2

The Expert Panel’s Terms of Reference were developed in response to the siege and hostage incident in Brighton, Melbourne, on 5 June 2017. The Terms of Reference direct the Panel (consisting of Ken Lay AO APM and the Hon David Harper AM QC) to examine the effectiveness of Victoria’s counter-terrorism legislation, and recommend improvements to assist relevant agencies manage the risks posed by violent extremism. The Brighton incident highlighted the opportunity for more to be done to counter the threat of, and meet the challenges posed by, violent extremism.

The Brighton incident is also the subject of two other reviews, namely the Victorian Coroner’s Inquest into the death of Yacqub Khayre and the Justice Assurance and Review Office’s review of Corrections Victoria’s management of Khayre (Justice Assurance and Review Review). The Justice Assurance and Review Office is a business unit within the Victorian Department of Justice and Regulation.  

Each of these reviews has a forensic focus in relation to the circumstances leading up to, and at the time of the incident, whereas the work of the Expert Panel focuses on the opportunities at all stages of the system to strengthen the management of the threat of violent extremism in Victoria.

The Panel has taken the JARO Review into account in formulating its recommendations, but does not comment on the specifics of that review of the Brighton incident so as not to prejudice the coronial inquest, which is currently underway.

The Panel also acknowledges the importance of achieving a nationally consistent approach to countering the threats posed by violent extremism and terrorism — an objective affirmed by the Council of Australian Governments (COAG) at its special meeting on counter-terrorism on 5 October 2017.

Report 1 primarily focused on Victoria Police’s powers in relation to counter-terrorism and the presumption against bail and parole. More generally, Report 1 assessed the tools required to counter the risk posed by violent extremists, including persons who are planning or preparing to carry out a terrorist act, individuals who have committed a terrorist act, or other offenders who pose a risk of committing a terrorism offence while on parole or bail.

Building on Report 1’s findings and recommendations, Report 2 extends its focus to include the full spectrum of policies and programs to counter the risk of terrorism — that is, policies and programs aimed at preventing or intervening early in relation to emerging risks, or responding rapidly to risks after they have eventuated.

It is the Panel’s view that these are key aspects of ensuring the safety of the community from the threat of violent extremism.

In this context, the Panel notes that Report 2 adopts the accepted terminology and language of ‘countering violent extremism’ (CVE), and uses the terms ‘violent extremism’ and ‘terrorism’ generally interchangeably.

The CVE policy spectrum is illustrated in Figure 1, which provides an overview of the key measures recommended in Reports 1 and 2.

These measures apply across a broad range of risks, as depicted by the three main sections of Figure 1:

The green column on the left depicts prevention programs that have a community-wide focus. In this space, CVE programs are designed to build protective factors in communities to address the risk of violent extremism.

The orange column to its right signals a shift to interventions directed towards individuals showing early signs of radicalisation towards violent extremism. Generally, these are lower level, emergent risks that can often be managed by addressing the underlying drivers of concerning behaviour (such as unemployment, drug and alcohol issues, and social isolation).

The red section to the far right is reserved for the management of risks of immediate concern, including those considered in Report 1. The interventions highlighted in this section are geared towards individuals who have radicalised to violent extremism, having passed the points of prevention and early intervention strategies.

In this Report 2, the Panel makes 26 recommendations relating to the following matters:

  • countering violent extremism (Chapter 1);
  • disengagement programs (Chapter 2);
  • the legislative definition of a ‘terrorist act’ (Chapter 3);
  • support and engagement order (Chapter 4);
  • a proposed offence of possession of ‘terrorism related material’ (Chapter 5);
  • preventative detention orders for minors (Chapter 6); and
  • post-sentence supervision of high risk terrorist offenders (Chapter 7).

The substance of the Panel’s recommendations in relation to each of these matters is outlined below.

Chapter 1: provides an overview of a broad spectrum of CVE programs and policies, from community resilience and social cohesion programs to disengagement programs that focus on individuals who are at risk of radicalising towards violent extremism. CVE calls upon a rich diversity of expertise, including that of police, teachers and others involved in education, human services, multicultural affairs, mental health, researchers and academics, and local community organisations. The Panel’s recommendations reflect this diversity by focusing on opportunities to expand and supplement existing programs across these areas, and to improve coordination and information sharing between responsible organisations, both government and non-government.

Chapter 2 :examines the measures to achieve the disengagement of terrorist offenders and individuals who are radicalising or have radicalised to violent extremism. Based on a recent evaluation of the Victorian Government’s existing disengagement program, the Panel considers the current scope and delivery of interventions in Victoria.

The Panel makes recommendations for the development of new disengagement programs for young persons in the justice system, for adults and young persons on bail or remand, and for violent extremists across the ideological spectrum (including right- and left-wing extremists). Noting that disengagement programs are newly emerging, the Panel also recommends the establishment of an expert advisory committee to provide technical advice to the Victorian Government on the development and evaluation of disengagement programs.

Chapter 3: considers the nationally agreed legal definition of a ‘terrorist act’ and its three elements (motive, intention and action). This consideration reveals a gap in the legislation, and a corresponding gap in the protection it provides. By restricting the legislative definition of ‘a terrorist act’ to an act motivated by a political, religious or ideological cause, the legislation exposes the community to the danger of a terrorist act motivated by something other than politics, religion or ideology.

The Panel examines in depth the ability of the present suite of counter-terrorism enactments to respond effectively to the changing nature of the terrorist threat — a threat which ranges from highly organised and structured major criminal organisations to the lone, disaffected, but potentially deadly actor.

None of these may have any affiliation to known terrorist groups and their motivation may be neither political, religious or ideological; or it may be an unknown and perhaps unknowable mixture of personal grievances unconnected with politics, religion or ideology. This threat is personified most recently by Stephen Paddock, the Las Vegas gunman.

In the Panel’s view, there is an urgent need to ensure that law enforcement agencies have all the powers and tools necessary to respond effectively to acts done ‘with the intention of (i) coercing … [a] government … or intimidating the public’2 2 Terrorism (Community Protection) Act 2003 (Vic) s 4(1)(c). regardless of any motive (if any).

Under the present definition of a terrorist act, those powers and tools are not available if the suspected offender is motivated by something other than politics, religion or ideology. Such offenders are likely to become increasingly common. The Panel therefore proposes amendments to the current legislative definition of terrorism.

The changes are intended to overcome the present gap in police powers to prevent some terrorist acts (for example, where the motive of the lone actor is unclear). They are also intended to remove from prosecutorial authorities the requirement that, before a conviction for a terrorist act can be obtained, the prosecution must prove that the accused was motivated by politics, religion or ideology.

As national consistency is important, the Panel recommends that these amendments be considered by an appropriate inter-jurisdictional body.

Chapter 4 continues the Panel’s examination of disengagement programs for persons who are radicalising, or have radicalised, to violence. Such radicalisation may necessitate mandatory intervention. The Panel recommends creation of a ‘support and engagement order’ (SEO) that will enable a court to impose a ‘support and engagement plan’. It is intended that the plan may include mandatory participation in support and disengagement programs, counselling, family group conferencing and the imposition of conditions where appropriate.

Considered in the context of existing counter-terrorism interventions (namely preventative detention orders and control orders), the Panel considers that the SEO should be supportive and community engagement focused, with, as its central objectives:

  • the disengagement of persons who are radicalising towards, or have radicalised towards, violence;
  • addressing the underlying causes of radicalisation towards violence (for example, unemployment, drug and alcohol issues, and social isolation); and
  • reconnecting persons with their community and positive support networks (for instance, family and friends).

Chapter 5 considers the limitations of existing offences in dealing with the recent proliferation of terrorist publications and materials.

Recognising the risk posed by these materials, particularly the demonstrated correlation between possession and a heightened risk of a person preparing for or engaging in a terrorist act, the Panel recommends that the Victorian Government seek national agreement to create a new offence in the Criminal Code Act 1995 (Cth) of possession of ‘terrorism related material’ (defined to mean material that provides instructions for the doing of a terrorist act).

Relevantly, the Panel notes the decision of COAG on 5 October 2017 to further consider such an offence.

While acknowledging the need to ensure that offences targeting ancillary conduct are sufficiently linked to a terrorist act, and do not disproportionately burden freedom of thought or speech, the Panel considers that the recommended offence is necessary and appropriate to:

  • enable police to intervene early to disrupt terrorist activity before it escalates to action; and
  • criminalise the possession of material that attracts or encourages people to engage in terrorism and provides instructions on how to do so.

If national agreement is not possible, the Panel recommends that the Victorian Government consider amending the Terrorism (Community Protection) Act 2003 (Vic) to create an offence of possessing ‘terrorism related material’ in that Act.

Chapter 6 examines the application of a modified preventative detention scheme to minors. In Report 1, the Panel recommended changes to Victoria’s preventative detention scheme for terrorism suspects, including the addition of a power for police to question a detained suspect.

The Panel deferred to Report 2 its consideration of:

whether the recommended modified preventative detention scheme should apply to minors aged 14 or 15 (the scheme is currently limited to those aged 16 years or over); and

what safeguards should apply to minors detained under the recommended modified preventative detention scheme.

The Panel recommends the extension of the scheme to minors aged 14 or 15. Although it is a matter of great regret, the Panel is persuaded that in the current environment there is a serious risk of minors as young as 14 or 15 engaging in terrorist activity. The Panel strongly recommends and outlines a range of additional safeguards to apply to all minors (not only those who are aged 14 or 15) under the recommended modified preventative detention scheme.

In Chapter 7, the Panel considers how to address the risk posed by convicted terrorists who have served their term of imprisonment but pose a continuing threat to community safety. This consideration is undertaken having regard to current efforts to implement a national post-sentence detention scheme for high risk terrorist offenders and Victoria’s existing post-sentence supervision and detention scheme for serious sex offenders.

The Panel recommends that the Victorian Government seek national agreement to create a post-sentence supervision scheme as an integrated part of the national post-sentence detention scheme, or that the current control order regime at the Commonwealth level be reformed to enable those laws to provide a practical alternative measure to post-sentence detention. If national agreement is not forthcoming, the Panel recommends that the Victorian Government consider extending the Victorian post-sentence supervision and detention scheme for serious sex offenders to enable the post-sentence supervision of high risk terrorist offenders.

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