Review of Australian Federal Police powers - Law Council of Australia Review of Australian Federal Police powers The submission to the Parliamentary Joint Committee on Intelligence and Security review of the following counter-terrorism powers of the Australian Federal Police was prepared by the Law Council of Australia. WA immigration detention centre officer charged with assault . A group of 35 men imprisoned have been on a five-day hunger strike as part of the protest. But we must protect the human rights of people who are accused or suspected of involvement in terrorist acts, not merely to demonstrate to others the strength of our values, but because we recognise those values as intrinsically important in a ‘free and confident society’. Under section 29(1)(bb)(i)(ii) and (ii) of the Intelligence Services Act 2001, it is a function of the PJCIS to review, by 7 January 2021, the operation, effectiveness and implications of:. [i]       Human Rights and Equal Opportunity Commission, submission to the Senate Legal and Constitutional Legislation Committee inquiry into the Anti-Terrorism Bill (No 2) 2005, 11 November 2005, at https://www.aph.gov.au/~/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2004_07/terrorism/submissions/sub158_pdf.ashx. Australia’s federal, State and Territory governments have multi-layered strategies to combat terrorism. There is no “police power” delegated to the federal government in the constitution, so that idea is a non-starter. The Australian Government has assessed that the primary terrorist threat in Australia currently comes from people motivated by Islamist extremist ideology. The Australian Federal Police and Australian Criminal Intelligence Commission will also be able to hack into people's computer networks and modify or delete harmful content such as child exploitation material. One of the most commonly prosecuted terrorism offences is a conspiracy to do an act in preparation for a terrorist act. Since 2014, police have had the ability to arrest a person without a warrant in relation to a terrorism offence if they ‘suspect on reasonable grounds’ that the person has committed an offence (including a preparatory offence). The Australian Federal Police (AFP) investigates national terrorist offences provides overseas liaison and protective services and performs a state policing function in the ACT. Division 105A of the Criminal Code (which provides for continuing detention orders). Read more . In terms of the first group, the most important of the human rights sought to be protected are the right to life (article 6(1) of the. These camps will be major danger areas for the spread of the virus. The Australian Federal Police says two men accused of trying to blow up a plane leaving Sydney could have been stopped sooner, if officers were given greater powers at airports. In this raid, Mr Eathan Cruse, a young Aboriginal man, was beaten by police after he had been handcuffed and while lying on the floor. Finally, as noted above, there are a range of important outstanding recommendations from the third INSLM and the PJCIS in relation to the establishment of an extended supervision order (ESO) regime. You can avoid problems if you are sensible and keep your cool. [xv]     Independent National Security Legislation Monitor, Annual Report 2014–15, pp 2–4. The experience of how control orders have been used in practice provides a stronger basis for determining the kinds of situation in which they are appropriate. See also Independent National Security Legislation Monitor, Annual Report 2018–19, pp 5–7. That is one reason why it is necessary that the human rights of those in the second group are also safeguarded. Shortly before this submission was due, the Australian Government introduced the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 into Parliament. In the context of the current security environment, the Commission considers that it would be open to the PJCIS to find that the stop, search and seize powers that are limited to Commonwealth places continue to be necessary and are consistent with Australia’s human rights obligations, subject to a reduction in the scope of the duration of a declaration of a prescribed security zone. On April 28, 2017 MEAA issued a statement regarding the revelation an Australian Federal Police officer has been able to access a journalist’s telecommunications data without being granted the necessary Journalists Information … In light of the range of other investigation and prevention measures available, and their effectiveness when compared with control orders, the use of control orders in other situations is not justified. On 18 June 2020, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) commenced an inquiry into AFP Powers. the evidence in support of an application could be properly tested in court proceedings when the order was first sought. 15. This includes the way that risk is assessed and the identification, training and qualification of relevant experts. When assessing the impact of powers given to law enforcement agencies to prevent terrorist acts, the rights of two groups of people are particularly relevant: first, people who are at risk of being victims of terrorist attacks; secondly, people who are accused of involvement in terrorist acts or who are otherwise affected by its prevention or investigation. Police Use of Force. The Australian Federal Police is the principal national law enforcement agency. It indicates that governments are exploiting the coronavirus crisis to establish police-state precedents for wider use. The Australian Federal Police (AFP) ... Members of the AFP outside the ACT and other federal territory do not exercise the powers, obligations and liabilities of a constable at common law. Commonwealth Criminal laws may be accessed at Federal Register of Legislation. On February 28, the WSWS published a statement by the International Committee of the Fourth International, entitled “For a globally coordinated emergency response to the coronavirus pandemic!” It insisted: “Urgent attention must be directed to the millions of people who are being housed in immigrant and refugee camps set up by the major capitalist powers in Europe and the United States. The Commission submits that the ESO regime in this form could replace the existing control order regime on the basis that it has a better focus on risk and is more consistent with human rights. Since the significant counter-terrorism raids conducted in Sydney and Brisbane in September 2014, 110 people have been charged as a result of 51 counter-terrorism related operations across the country. Both federal and state police officers in Australia carry pistols, pepper spray, and batons. The AFP was established by an Act of Parliament in 1979. Australian Federal Police Commissioner Andrew Colvin. [v]      Australian Human Rights Commission, Review of certain police powers, control orders and  preventative detention orders, supplementary submission to the PJCIS, 3 November 2017, at https://www.aph.gov.au/DocumentStore.ashx?id=766df2d3-b918-4b17-aadf-28ccca57bca5&subId=516302. These differences need to be kept in mind when evaluating the continued utility and appropriateness of some of the ‘preventative’ powers introduced in 2005, particularly control orders and preventative detention orders (PDOs). The first difference is the inclusion in the Criminal Code of a broader range of inchoate, or preparatory, offences relating to terrorist acts. In a separate attack in 2015, Mr Curtis Cheng, an employee of the New South Wales police force, was shot and killed. Rights groups in Australia alarmed at new coronavirus police powers. The Daily Telegraph reports the AFP will be able to use the … [xiii]   Thomas v Mowbray (2007) 233 CLR 307 (Gummow and Crennan JJ) at [61]. The submission contains a number of relevant case studies to illustrate those points, based on the experience to date. At http://www.humanrights.gov.au/human-rights-guide-australias-counter-terrorism-laws#fnB8. When this regime was first proposed, the Commission recognised that it could be a reasonable and necessary response to the potential risk posed by people convicted of terrorism related offences, after their release from imprisonment. More and more people are testing positive for COVID-19 in the facilities. Supplementary submission: Review of Australian Federal Police Powers. There are still many aspects of this regime that are not settled. In reality, the police banned the protest despite the organisers informing them in advance of the measures they would take to avoid any danger to health or any infringement of the social distancing rules. Police powers and your rights. In Europe, where the virus is continuing to spread rapidly with nearly 80,000 deaths across the continent, the facilities where refugees are imprisoned in Greece are turning into death camps. Section 6 of this submission examines the control order regime. An important aspect of oversight is proper authorisation for the use of powers. The Commission welcomes the opportunity to make a submission to this review. Appendix A to this submission contains a table summarising the 16 control orders made to date. 1 Short title This Act may be cited as the Australian Federal Police Act 1979.. 2 Commencement (1) Sections 1, 2, 4 and 6, Division 1 of Part IV and sections 28 and 70 shall come into operation on the day on which this Act receives the Royal Assent. Section 7 of this submission examines the PDO regime. Prisoners could be released early under extraordinary measures to handle any outbreak of COVID-19 in NSW prisons, while police have been given strong powers to enforce public safety laws. This includes submissions made to: the Legal and Constitutional Legislation Committee in relation to the 2005 Bill that introduced the stop, search and seize powers in relation to terrorism, control orders and preventative detention orders, the 2013 COAG Review of Counter-Terrorism Legislation, the 2016 PJCIS review of the Criminal Code Amendment (High Risk Terrorist Offenders) Bill that introduced continuing detention orders, the 2017 Statutory Deadline Reviews by the Independent National Security Legislation Monitor (INSLM). The Commission’s submission examines the purposes and threshold for obtaining a PDO, concluding that in every case where relevant authorities have suggested a PDO might be used, there are alternative, less restrictive options available that are just as effective. As at the time of writing this submission, judgment was reserved in this matter. International law also requires that the steps taken to prevent the commission of terrorist acts are themselves consistent with human rights. [ix]     United Nations General Assembly, Resolution 60/288 The United Nations Global Counter-Terrorism Strategy, UN Doc A/RES/60/288 (2006), p 9. There are two significant differences between the investigation and prosecution of terrorism offences on the one hand, and other criminal law offences on the other, which give the police the ability to intervene at an earlier point in time and prevent terrorist acts before they take place. Parliamentary Joint Committee on Intelligence and Security, [T]he promotion and protection of human rights for all and the rule of law is essential to all components of the [United Nations Global Counter-Terrorism] Strategy, recognizing that effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing.[ix]. The Commission notes that the Government intends to refer this Bill to the PJCIS for separate inquiry. All the federal, state and territory governments, Labor and Liberal-National alike, have adopted far-reaching state powers to enforce COVID-19 lockdown measures imposed by a bipartisan “national cabinet.”. Further, it is important that each of the powers being considered in the present review is assessed on its merits. Such a regime would be more consistent with human rights because: the scope of the regime would be better targeted to situations where there was more likely to be risk to the community, as a result, the degree to which the controls limit the human rights of the person subject to the control order would be more likely to be proportionate to the purpose for their imposition. The Australian Human Rights Commission (the Commission) makes this submission to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in relation to its ‘Review of AFP Powers’. Oversight of counter-terrorism powers, including by this Committee, helps to ensure that they operate appropriately. Jon Hunt-Sharman National President, Australian Federal Police Association . This is a statutory review required by s 29(1)(bb)(i) and (ii) and s 29(1)(cb) of the, Divisions 104 and 105 of the Criminal Code (which provide for control orders and preventative detention orders in relation to terrorism) and any other provision of the. These powers are being utilised already to silence discontent and will be used more broadly against the working class as the government gears up to force ... the Australian Federal Police … Utilising emergency powers invoked by the state Labor government in Victoria, ostensibly to curb the spread of COVID-19, police in Melbourne shut down a political demonstration last week, arresting one protester and fining 26 others. Nearly 1,200 doctors and other health professionals also signed an open letter calling for all asylum seekers to be released into the community during the pandemic. The Australian Federal Police ... Of note is that the minister is to play no role in the operational management of the issue and has no power or … On 25 September 2020, the Law Council of Australia appeared before the Parliamentary Joint Committee on Intelligence and Security's public hearing on the 'Review of Australian Federal Police Powers'. The limited situations in which this power could conceivably be used, combined with its extraordinary nature, suggests that serious consideration should be given to its repeal. Australia’s federal, State and Territory governments have multi-layered strategies to combat terrorism. [xiv]    Department of Home Affairs, Attorney-General’s Department and Australian Federal Police, Joint-agency submission – Review of the police stop, search and seizure powers, the control order regime and the preventative detention order regime (Review of AFP Powers), submission to the PJCIS, 4 September 2020, p 3, at https://www.aph.gov.au/DocumentStore.ashx?id=a7b77fd7-2a24-4d94-8177-59d38a55d085&subId=691389. Fall 08 Australian Federal Police Association Submission to the ACT Department of Justice and Community Safety Response to the Review of Criminal Investigative Powers Discussion Paper 1 of 124 Many also have access to conducted energy weapons (e.g. Home Parliamentary Business Committees Senate Committees Senate Standing Committees on Legal and Constitutional Affairs Current investigative processes and powers of the Australian Federal Police in relation to non-criminal matters, for inquiry Report A critical tool in those strategies is the investigation of those suspected of planning terrorist acts, followed by their arrest and prosecution where the investigation reveals evidence that an offence has been committed. [xviii] See the list of prosecutions for terrorism offences in Independent National Security Legislation Monitor, Annual Report 2018–19, Appendix I. Some 42,000 refugees are packed in crammed living quarters, which lack even soap and running water. You can avoid problems if you are sensible and keep your cool. Security guards, hired from the multinational company Serco, regularly come in and out of the hotel. “The situation here is absolute chaos,” he said. The organiser of the protest was earlier arrested at his house and charged with inciting the others to join the demonstration. It provides protective services to federal government property and personnel/dignitaries, including major airports, buildings, foreign embassies/diplomats and provides state-styled law enforcement services to external territories, the Australian Capital Territory and the Jervis Bay … The PJCIS is required to conduct its review of the first two matters by 7 January 2021 and the third matter by 7 December 2022. Australian intelligence officers now have the power to compulsorily question suspected foreign spies. In the case of searches of people and premises, police are required, except in very limited circumstances, to obtain a warrant on each occasion that they wish to exercise those powers. Tasers). Former Australian Federal Police Headquarters The Australian Federal Police (AFP) is the national and principal federal law enforcement agency of the Australian Government with the unique role of investigating crime and to protect the national security of the Commonwealth of Australia. Tim Mayfield Manager - Communications, Australian Federal Police Association . Robust and independent appraisal of this assessment methodology is necessary to assure the public, and ultimately the courts, that such assessments are sufficiently accurate and reliable, taking into account the gravity of the decision-making process to which they relate. [ii]      Australian Human Rights Commission, COAG Review of Counter-Terrorism Legislation, 28 September 2012, at https://www.ag.gov.au/sites/default/files/2020-05/Australian%20Human%20Rights%20Commission_0.pdf. [x]      Independent National Security Legislation Monitor, Review of Division 3A of Part IAA of the Crimes Act 1914: Stop, Search and Seize Powers, 7 September 2017, at [5.5]. [xvi]    Dylan Welch, ‘Islamic State: Militant group calls on supporters to kill Australians 'in any possible way’ ABC News, 22 September 2014, at https://www.abc.net.au/news/2014-09-22/islamic-state-calls-on-supporters-to-kill-australians/5761502. These powers have not been used since they were enacted in 2005. It should be limited to people who have been convicted of a terrorist offence and who would still present unacceptable risks to the community at the end of their sentence if they were free of all restraint upon release from imprisonment. The Australian Federal Police's hunt for journalists' working files highlights more of the wide-ranging powers granted by the controversial Assistance and Access Act. After a guard was confirmed to have contracted the coronavirus at the Kangaroo Point Hotel, a cramped and dirty makeshift prison in Brisbane, a petition was created to demand the shutdown of the facilities and release all the prisoners. The Commission has made several submissions about the counter-terrorism laws that are under consideration in this review. It is the first time the Australian Federal Police has formally seized — or restrained — the property of an alleged child sex offender who is not accused of profiting from a crime. The refugees are at a high risk of potentially fatal infection due to pre-existing medical conditions. At the hotel in Brisbane, refugees are conducting an ongoing protest, which has lasted for a fortnight, holding signs desperately asking for release. Australian Federal Police … There are also state police forces. [xvii] Australian Federal Police, Inquiry into AFP Powers (Division 3A Part IAA of the Crimes Act 1914 and Divisions 104 and 105 of the Criminal Code), submission to the PJCIS, August 2020, at. The April 10 protest was held in opposition to the continued inhuman imprisonment of refugees by the federal Liberal-National government, which is putting the detainees at extreme risk of contracting the coronavirus. This criminal treatment of refugees is part of Australia’s bipartisan “border protection” regime, which detains all refugees who try to flee to Australia by boat and bans them from ever settling in the country. [xvii]   Australian Federal Police, Inquiry into AFP Powers (Division 3A Part IAA of the Crimes Act 1914 and Divisions 104 and 105 of the Criminal Code), submission to the PJCIS, August 2020, at [6]. 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