Submission: Counter-Terrorism and Other Legislation Amendment Bill 2023

NSW Council for Civil Liberties strongly opposes the Counter-Terrorism and Other Legislation Amendment Bill 2023 and we consider the Bill to be a serious threat to civil liberties and the rule of law in Australia. We are deeply concerned that the Bill seeks to extend the operation of two highly problematic regimes: the secrecy provisions and the control orders. Both of which have been widely criticised for undermining fundamental rights and principles of justice.

Having regard to the serious implications the Bill has to the rule of law and to the principle of democracy, we submit that the Bill is unjustified, disproportionate, and should be rejected in its entirety. We are not persuaded by the arguments put forward by the government to justify the continuation or extension of these regimes. These arguments fail to show that the Bill is necessary, proportionate or effective in addressing the threat of terrorism.

In our submission, we focus on two key aspects of the Bill: the secrecy provisions and control orders. We have narrowed our submission to these two issues only, as we believe they are the most urgent and contentious matters that represent the most significant concern to civil liberties.

The secrecy provisions criminalise the unauthorised disclosure of information by current or former Commonwealth officers under section 122.4 of the Criminal Code Act 1995 (Cth), regardless of the public interest or the harm caused by such disclosure. We strongly oppose the Bill’s proposal to extend the sunsetting date of section 122.4 by 12 months to December 2024. The Council also strongly opposes the continuation of the secrecy provisions in their current form and urges the complete repeal or, at the very least, the incorporation of substantive safeguards following the forthcoming findings of the Attorney-General’s Department’s Review of Secrecy Provisions, namely, to introduce an express harm requirement. We are concerned that the secrecy provisions are easily abused for political ends, prescribe a misguided objective, and fail to provide adequate protections that would ensure open and fair justice.

The control order provisions in Division 104 of the Criminal Code aim to prevent the commission of terrorist acts by imposing wide-ranging restrictions which result in the controlee living in circumstances akin to house arrest. The control order provisions do not contain essential safeguards developed by the criminal law aimed at protecting the right to be free of arbitrary detention and the unlawful deprivation of liberty. These provisions are unnecessary considering the wealth of alternative tools for preventing terrorist acts, including Extended Supervision Orders under Division 105A of the Criminal Code and Part 5.3 offences relating to preparatory acts. We recommend that these latter tools be the only mechanisms used to manage the risk of terrorist acts in the context of post-sentence and preparatory conduct.

We strongly opposes the Bill's proposal to extend the operation of Division 104 by a further three years until 7 December 2026.

Read our submission here.