The prosecution and sentencing of children for terrorism

The INSLM Act provides for the appointment of the INSLM. I independently review the operation, effectiveness and implications of national security and counter-terrorism laws, and consider whether Australia’s national security and counter-terrorism laws contain appropriate protections for individual rights and remain necessary and proportionate to Australia’s terrorism or national security threats. In conducting the review, I have access to all relevant material, regardless of national security classification, can compel answers to questions, and hold public and private hearings. My reports are provided to the Prime Minister or the Attorney-General and must be tabled promptly in Parliament.

Under s 7 of the INSLM Act, following a suggestion made by the CDPP, Ms Sarah McNaughton SC, and a request by me, the then Prime Minister, the Hon Malcolm Turnbull MP, referred to me for review the matter of ‘the prosecution and sentencing of children for terrorism offences’. His letter of referral said that consideration should be given as to ‘whether to implement arrangements to ensure a consistent approach to the prosecution of children for Commonwealth terrorism offences’.

This has required me to review in particular ss 19AG, 15AA and 20C of the Crimes Act, but also many other provisions of Commonwealth, State and Territory laws.

Other significant matters have arisen during the review which fall within my ‘own motion’ power to review, and which are necessary and convenient to review and report on concurrently with the Prime Ministerial reference.¹

In conducting this review, I have received many submissions, and held private hearings with relevant Commonwealth agencies, and public hearings with them and others. Within Australia, I have consulted ministers, judges, agencies, human rights bodies, legal experts and organisations, and juvenile justice and corrective services officers. In the United Kingdom (and to an extent in New Zealand), I have consulted with judges, prosecutors, experienced counsel, my current and recent counterparts,² and experts in disengagement and counter-radicalisation.

The terms of the reference require me to report to the Prime Minister by 1 December 2018. Under the INSLM Act, the Prime Minister must table the report within 15 sitting days of receiving it.

This review has been especially complicated. It has revealed a number of significant matters requiring reform. This chapter summarises the key findings of the review. Given the complexity of the issues considered, the summary needs to be read with the report as a whole to gain a full appreciation of those issues.

¹ See: INSLM Act ss 6(1) and (3).

² Former Independent Reviewers of Terrorism Legislation Lord Alex Carlile QC, Lord David Anderson QC and Max Hill QC.

Before considering whether the laws under review remain proportionate to any threat of terrorism or threat to national security, or both; and remain necessary, I must consider the relevant threat.

The current threat of a terrorist act occurring in Australia remains at the ‘probable’ level, and the evidence before me suggests that this position will remain unchanged for some time. The threat is mainly from violent islamists,³ notably the Islamic State of Iraq and the Levant (ISIL), but there is also some radical right wing activity. Foreign fighters and their children remain a cohort of particular significance both because of their direct potential to be perpetrators of terrorist acts but also because of their capacity to inspire others, including children, to act.

Since 2014, the risk of children committing terrorism offences has emerged as a significant issue, as reflected in the marked increases in intelligence interest and police investigations, as well as the number of charges and convictions concerning children. Significantly, over 10% of the total number of persons convicted of terrorism offences since 2014 were under 18 at the time of offending, and a further 25% were between 18 and 25 (meaning that over a third of the total group of federal terrorism offenders were under the age of 25). Significant sentences have also been imposed on children, most seriously, a term of 13 years and 6 months imprisonment for an offender just 14 years of age at the time of the offence. There are similar trends in the UK where children have received life sentences. It is clear that in both Australia and the UK the terrorist threat posed by children and young adults will continue.

While the overall numbers are small, and it is important not to overstate the threat, it is clear that:

1. the threat is real;
2. child terrorism offenders can have the same asymmetric impact as adults upon direct victims of terrorism, and society more generally; and
3. terrorism offences are the most serious federal offences for which children currently face prosecution.

³ Violent Islamist action is to be contrasted with the major world religion of Islam, which practices peace.

It is critical to appreciate the role of the six States and two self-governing Territories in the prosecution and punishment of children for federal terrorism offences. In particular, at present:

1. each State has a JCTT which comprises both Commonwealth and State police and intelligence personnel;
2. all prosecutions are conducted in State or Territory courts, usually children’s courts at the outset, all of which differ in some way in their powers and procedures, and then often in higher courts, whether Supreme, County or District Courts;
3. there being no federal prisons or places of federal detention⁴ for juvenile offenders, all federal prisoners, adult or children, are accommodated in State or Territory prisons or places of detention; and
4. the Commonwealth parole authority, namely the Commonwealth Attorney-General, has no legally enforceable right of access to federal prisoners.

There are, under the Constitution, potentially four sources of substantive or procedural law which can apply in federal prosecutions of adults and children, namely, laws of the Commonwealth, laws of the States, laws of the Territories and the common law. State (and Territory) laws do not apply of their own force in federal prosecutions, rather, there are a series of federal laws which, subject to any invalidating inconsistency with the Constitution or with other federal laws, ‘pick up’ as federal law certain State or Territory laws.⁵ Although my role does not include review of State and Territory laws per se, I may, indeed I must, consider those State or Territory laws insofar as they are or may be surrogate federal laws, and insofar as each impacts upon relevant laws of the Commonwealth. Thus, in this review, I have needed to consider relevant laws of the Commonwealth and of the States and Territories, a total of nine jurisdictions.

⁴ Commonwealth detention for immigration, quarantine or military purposes are separate categories which do not arise in this review.

⁵ Solomons v District Court of New South Wales (2002) 211 CLR 119, 134 [21] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ): ‘The State laws apply, as Kitto J put it in Pedersen v Young “as federal law”.’ As Gordon J said in Mok v Director of Public Prosecutions (NSW) (2016) 257 CLR 402, 431 [84]: ‘The Commonwealth Parliament, from time to time, passes legislation to “pick up” and apply State laws. … When State laws are applied by such provisions, the State laws made applicable are often called “surrogate federal laws”.’

In federal criminal law, where imprisonment is ordered, there is a ‘head’ or actual sentence imposed, and also a judicial determination of a ‘non-parole period’ being the earliest time at which parole may be granted and the offender released from custody. If parole is granted, the offender is then normally subject to a variety of restrictions on liberty until their head sentence expires.

Because of a perception that an early terrorism offender had received a lenient non-parole period, s 19AG of the Crimes Act was enacted. It requires every court imposing a term of imprisonment on an adult or child convicted of a terrorism offence to fix a non-parole period of at least three-quarters of the duration of the head sentence, hence the ‘75% rule’.

At the time s 19AG was enacted, parole was almost automatic. That is no longer the case. This change diminishes dramatically the necessity of the provision.

Under s 8 of the INSLM Act, I am expressly required to consider Australia’s compliance with its international obligations including its human rights obligations. This significantly informs my view as to whether relevant laws contain ‘appropriate safeguards for protecting the rights of individuals’: INSLM Act s 6(1)(b)(i).

It was s 19AG and its compliance with Australia’s international human rights obligations, particularly those under Arts 3(1), 37(b) and 40(1) of the CRC,⁶ that attracted the most attention in the formal submissions made to the review.

The Commonwealth submitted that s 19AG is compliant with Australia’s CRC obligations because of the degree of discretion retained by a court in sentencing a juvenile offender, which means that in practice the provision has been applied in a manner that is consistent with Australia’s international obligations.

On the other hand, a range of interested parties submitted that s 19AG is not consistent with Australia’s international obligations. In the AHRC’s view, this was primarily because it does not allow the best interests of a child to be made a primary consideration in all sentencing decisions, can lead to terms of imprisonment that are longer than strictly necessary, and can lead to results which are contrary to a sentencing judge’s assessment of the specific supervision and rehabilitation requirements of an individual child offender.

Having considered these submissions, particularly those of the AHRC, I am persuaded that s 19AG in its current form, as it applies to children, is in breach of Australia’s obligations under the CRC, especially the best interests obligation (Art 3(1)) and those providing that:

1. ‘The … imprisonment of a child … shall be used only as a measure of last resort and for the shortest appropriate period of time’ (Art 37(b)); and
2. Children shall be ‘treated in a manner consistent … which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society’ (Art 40(1)).

Section 19AG precludes any judicial discretion in setting a child’s non-parole period.⁷ It is no answer to this point that the court has a discretion on setting the head sentence, because federal sentencing law requires the court to set the head sentence without reference to the prospect of the consequential application of the 75% rule in s 19AG.

I do not suggest that this non-compliance with the CRC was deliberate at the time s 19AG was enacted, only that the breach of the CRC is evident now that children are being convicted of terrorism offences. As these laws can be expected to be applied more in the coming years, this non-compliance ought to be addressed, and urgently.

As such, I recommend that s 19AG be amended such that the provision no longer applies to offenders who were under 18 at the time of offending.⁸ I note that this result is similar to the current exclusion of children from mandatory sentences in people-smuggling offences and several Commonwealth bills.

⁶ These provisions of the CRC, and other potentially relevant international obligations, are set out below.

⁷ Similar to mandatory sentencing: see Judicial Conference of Australia submission.

⁸ Any such amendment ought to make clear that the sentencing options specified in s 20AB of the Crimes Act are then to be available for such offenders.

Section 15AA of the Crimes Act establishes a presumption against bail for persons charged with most terrorism offences. It provides that bail must not be granted to persons charged with those offences, unless the bail authority (usually a judge or magistrate) is satisfied that ‘exceptional circumstances’ exist. Again, the primary area of debate in the submissions made to the review concerning s 15AA was the provision’s consistency with Australia’s international obligations, particularly the obligation in Art 3(1) of the CRC to ensure that the best interests of the child are a primary consideration for the bail authority dealing with a bail application – although this article does not require that this factor be the sole or paramount consideration.

While the phrase ‘exceptional circumstances’ is not defined in the Crimes Act, its meaning has been explored in a number of decided cases. In summary, these indicate that while youth can and will be taken into account in determining whether ‘exceptional circumstances’ exist, youth alone will not ordinarily be dispositive of that question.

The Commonwealth contended that s 15AA is consistent with Australia’s international obligations, most relevantly the CRC. While a number of arguments were advanced by the Commonwealth in support of its position, the most persuasive was that the application of s 15AA, as revealed in the decided cases, was in compliance with the CRC because the discretion contained in s 15AA allowed bail authorities to apply the ‘exceptional circumstances’ test in a manner that is consistent with the requirements of the CRC, including that the best interests of the child be a primary consideration.

However, all non-government submitters who addressed the compliance of s 15AA with relevant international obligations argued that the provision was in breach. For the AHRC, the Law Council of Australia and others, this was because, while s 15AA permitted a bail authority to consider the youth of the offender in some cases, it did not require the authority to treat the best interests of the child as a primary consideration in each and every case.

As I noted at the public hearing, there is some room for differences of opinion as to the compliance of s 15AA with Australia’s international obligations.

It is clear that a matter being a primary or guiding consideration does not mean that it is the dominant or paramount or decisive consideration and that such matters can sit alongside the test of ‘exceptional circumstances’.

I conclude that although nothing on the face of the provision requires it, it is permissible for a bail authority to apply the express terms of s 15AA such that the interests of the child are also a primary consideration. In the cases decided to date, this has in fact occurred because in every case the youth of the child and the general undesirability of denying bail to a child are matters adverted to and taken into account. This is in one sense an unsurprising application of the canon of statutory construction that ‘a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law’.⁹

In practice, therefore, I conclude that the CRC obligation is met. Nonetheless, because of the practical and symbolic importance of the obligation, in my view the matter could and should be put beyond doubt by an amendment to s 15AA to expressly provide for consideration of the best interests of the child in every case as a primary consideration, but that the protection of the community where a terrorism offence has been charged should be the paramount consideration.

This is an approach similar to that found in the control orders scheme set out in Div 104 of the Criminal Code, which relevantly requires that the best interests of the child be a ‘primary consideration’, and the objectives of Div 104, including the protection of the community from a terrorist act be a ‘paramount consideration’.

However, s 8(b) of the INSLM Act requires me also to have regard to ‘arrangements agreed from time to time between the Commonwealth, the States and the Territories to ensure a national approach to countering terrorism.’ One such arrangement is the recent decision of the Council of Australian Governments (COAG) that all jurisdictions should implement a presumption that neither bail nor parole will be granted to people who have demonstrated support for, or have links to, terrorist activity. Thus it is appropriate that before implementing my recommendation, the Prime Minister refer my recommendation to COAG.

⁹ Minister for Immigration and Ethnic Affairs v Teoh (‘Teoh’s Case’) (1995) 183 CLR 273, [27] per Mason CJ and Deane J, citing Polites v Commonwealth (1945) 70 CLR 60, 68–69, 77, 80–81.

Since 1960, s 20C of the Crimes Act has provided that a ‘child or young person’ charged with or convicted of a Commonwealth offence may be tried, punished or otherwise dealt with as if the offence was an offence against a law of a State or Territory. The Attorney-General who introduced the bill which enacted s 20C, Sir Garfield Barwick QC, then said of the provision:¹⁰ 

This, of course, is permissive. It will allow a State court exercising federal jurisdiction and trying young offenders against Commonwealth law, to deal with them in the same manner as the court would deal with young people who had committed an offence against the laws of that State. This might yield different results in different States.

While it is uncontroversial that federalism may permit ‘different results in different States’, it is a question of policy judgment about how far those differences may appropriately extend. As this report explains, as a consequence of this approach, some serious inconsistencies have arisen in the laws concerning the prosecution and sentencing of children for terrorism offences, depending on where in Australia the child is tried. Those inconsistencies, once discerned, require explanation, analysis, and in some cases, reform.

There are sometimes large difficulties involved in resolving such inconsistencies. However, the Prime Minister’s reference requires me to consider whether to implement arrangements to ensure a consistent approach to the prosecution of children for Commonwealth terrorism offences. This report aims fully to answer that question.

My approach to the s 20C aspect of the review was to undertake a comprehensive comparative survey of the juvenile justice laws of each State and Territory, and then how, under s 20C, they might apply to the prosecution and sentencing of children for Commonwealth terrorism offences. In particular, I sought to understand the following features of the State and Territory juvenile justice laws: 

1. the definition of ‘child or young person’; 
2. the jurisdiction of the various children’s courts including any procedures to uplift a matter from a children’s court to a court of general criminal jurisdiction; 
3. the application of juvenile sentencing principles; and 
4. sentencing powers of the children’s courts and courts of general criminal jurisdiction in each State and Territory when sentencing children.

Definition of ‘child or young person’

The review considered whether it would be desirable for ‘child or young person’ to be given a prescriptive definition in s 20C of the Crimes Act. That term presently takes its meaning from the relevant State or Territory law in a given matter. 

I have concluded that it is not desirable to provide a single definition of ‘child or young person’ in s 20C. The most obvious inconsistency in practice – the previous exclusion of 17 year olds from the juvenile justice system in Queensland – has now been remedied so that 18 is the uniform age below which an accused is a child in the eyes of the law. There are no other pressing issues on this topic.

The role of children’s courts

Children’s courts are at the front line of juvenile justice and do important work in often difficult conditions. Nothing in this report should be understood as indicating a lack of respect for those courts or their judges. 

However, at least for the following reasons, I have concluded that it is ordinarily undesirable for terrorism matters to be dealt with in the children’s courts: 

1. Terrorism cases are among the most serious dealt with in Australian courts and tend to involve considerable complexity in the applicable substantive and procedural laws involved, and in case management. The nature and scope of the issues presented by these cases are different from those that usually confront children’s courts.
2. The right to trial by jury conferred under s 80 of the Constitution is a fundamental constitutional and human right. However: 
   1. Of all of the children’s courts, only the Queensland Children’s Court may hold a jury trial. In other jurisdictions, matters which remain in the children’s court are dealt with summarily. It is troubling that trial by jury may be unavailable in the case of a contested terrorism case involving a child. 
   2. In Western Australia, all children’s criminal trials must proceed within the Children’s Court (where there can be no jury trial) unless the child agrees to the transfer of their case. So, where a child refuses a transfer, there can never be a jury trial. 
3. The current system of dealing with terrorism matters in children’s courts risks unduly inconsistent sentencing outcomes across jurisdictions. It is important that the approach to the sentencing of children for terrorism offences be largely the same throughout the Commonwealth. 
4. Inconsistencies between jurisdictions as to the circumstances in which a matter may be uplifted into a general court may lead to very significant discrepancies in sentencing outcomes. For example, had the juvenile terrorist offender known as MHK (see further details in Appendix A) succeeded in opposing the uplift of proceedings from the Children’s Court of Victoria, that court could have imposed a sentence of no more than three years’ detention—well short of the 11-year term of imprisonment ultimately imposed by the Victorian Court of Appeal.¹¹

I recommend that there be a minimum threshold set by federal law such that: 

1. Serious terrorism charges – those carrying a maximum sentence of imprisonment of 15 years or more – should always be tried on indictment (in which case s 80 of the Constitution guarantees a jury trial) and not in children’s courts. 
2. There be no change to the current provisions which permit the CDPP and the accused to agree to proceed summarily with reduced penalties where the maximum penalty would normally be (up to) ten years.¹² 
3. In all other cases, the matter should be transferred to a court which can hear the matter with a jury unless the accused can persuade the court that there are special circumstances which justify the matter being heard by the children’s court. 
4. Implementation of these recommendations should not detract from the ability of State and Territory laws to lower the threshold at which point a matter must be heard on indictment. 

Implementation of this recommendation would no doubt require the Commonwealth to work closely with the States and Territories, most likely through COAG – which has held a number of special meetings concerning counter-terrorism – to address technical issues which may arise in the implementation of the uplift arrangements. 

One issue that is already apparent is that no court in Western Australia has jurisdiction to hear a federal terrorism prosecution of a child on indictment and thus with a jury if the child does not agree. Evidently it is necessary to rectify that deficiency, either by expanding the jurisdiction of those courts by State and/or Commonwealth legislation; or for the Commonwealth to confer jurisdiction on the Federal Court of Australia concurrent with the courts of the States and Territories. There are in any event good reasons to contemplate conferring jurisdiction on the Federal Court to deal with terrorism matters more broadly, hence my next recommendation.

The Federal Court and indictable terrorism matters

I recommend that in all terrorism matters tried on indictment, the Federal Court of Australia should have jurisdiction concurrent with the courts of the States and Territories. Fundamentally, this is because of: 

1. the disparity in the approaches taken in the eight State and Territory jurisdictions; 
2. the complexity of federal legal and procedural issues which typically arise in terrorism cases; 
3. the truly national nature of terrorism offences; 
4. the force of the views expressed by a distinguished commentator and the Law Council of Australia; and 
5. the fact that the Federal Court already has jurisdiction to make Control Orders under Div 104 of the Criminal Code.¹³ 

This is an important recommendation but it should not be regarded as a radical one, nor one designed to undermine the status or role of the Supreme Courts of the States and Territories. 

Rather, just as the civil jurisdiction of the Federal Court began in 1977 limited to special but limited classes of federal jurisdiction, and expanded to a court which now, and for over 20 years, has had general federal jurisdiction,¹⁴ so, once the court’s indictable jurisdiction in cartel matters was established, and the substantive and procedural laws necessary for the exercise of that jurisdiction put in place, expansion over time of its indictable criminal jurisdiction was almost inevitable. The matters referred to in the preceding paragraph make conferral of terrorism jurisdiction on the Federal Court particularly timely. The fact that the proposal is for concurrent jurisdiction with the courts of the States and Territories will ensure those courts continue to be available and suitable venues for terrorism trials. 

If this recommendation is accepted, I also recommend that consideration be given to also conferring jurisdiction on the Federal Court, concurrent with the Supreme Courts of the States and Territories, to grant Continuing Detention Orders under Div 105A of the Criminal Code and any provisions to make Extended Supervision Orders as discussed in my 2017 report Review of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders.¹⁵

Juvenile sentencing principles

A further aspect of State and Territory juvenile justice laws considered in my review was the extent to which provisions in State and Territory laws for the application of special juvenile sentencing principles might lead to undesirable inconsistencies in the sentencing of children for Commonwealth terrorism offences. Despite the uncertainties involved in determining whether juvenile sentencing principles applicable under State and Territory law apply in any given case, I do not think there is a pressing need for the Commonwealth Parliament to legislate on this issue. 

First, it is my view that, insofar as any set of juvenile sentencing principles might purport to be a code, they cannot be picked up as surrogate federal laws, especially where those principles might purport to prioritise rehabilitation ahead of other sentencing considerations in a way inappropriate in a terrorism matter. Second, it is not clear to me that the applicability of juvenile sentencing principles in one State or Territory in circumstances where equivalent principles would not apply in other jurisdictions, would cause material inconsistencies in sentencing outcomes. As such, and noting my recommendation that juvenile terrorism cases generally be dealt with in the superior courts, I conclude that it is preferable to leave to the courts the question of the appropriate application of juvenile sentencing principles in terrorism cases.

Sentencing powers

Consistency throughout Australia of sentencing for federal offences is an important goal generally, but particularly in this field.

First, as was said by the plurality of the High Court in R v Pham:¹⁶ 

… a federal offence is, in effect, an offence against the whole Australian community and so the offence is the same for every offender throughout the Commonwealth. Hence, in the absence of a clear statutory indication of a different purpose or other justification, the approach to the sentencing of offenders convicted of such a crime needs to be largely the same throughout the Commonwealth. Further, as Gleeson CJ stated in Wong, the administration of criminal justice functions as a system which is intended to be fair, and systematic fairness necessitates reasonable consistency.

Second, terrorism offences, which involve intimidation of the public (or a section of the public), are paradigm cases of ‘offences against the whole Australian community’. The community would have a legitimate sense of grievance if it thought that essentially the same conduct which constituted a federal terrorism offence could invite a very different criminal process or sentencing outcome only on the basis of where in Australia the proceeding is conducted – what in other jurisdictions is called ‘a postcode lottery’. I agree with the proposition, put to me by the Commonwealth, that national consistency has, and will continue to be, desirable to achieving the collective goal of keeping Australians safe from terrorism in a complex and evolving threat environment.

Third, there is at least some risk that terrorists would seek to exploit any major discrepancies in, for instance, sentencing outcomes in different jurisdictions. 

Fourth, a co-offender with a juvenile, or a person convicted of the same offence based on similar conduct, who received markedly different treatment or a significantly more serious sentence might have a legitimate sense of grievance, and perhaps, a good ground for appeal. It is of course a real possibility that a single terrorism plot might result in the prosecution of multiple defendants, including children, in different jurisdictions. 

There are two particular issues relating to sentencing powers requiring reform. First, Queensland’s juvenile justice legislation, which applies to child offenders no matter which court in Queensland they are dealt with, purports to limit the maximum sentences which can be applied to all child offenders, including federal child offenders. 

I recommend that the Crimes Act be amended to expressly exclude any State or Territory law which purports to set a maximum sentence for juvenile federal offenders which is lower than that prescribed in the Commonwealth provision creating the offence, or which otherwise deprives the court of the full range of sanctions legislated by the Commonwealth Parliament. It may be that s 109 of the Constitution already renders this aspect of Queensland law inoperative, but it is salutary to make the position express. 

Second, s 19AG presently operates in such a manner as to restrict the full range of sentencing options which would otherwise be available to be imposed on a juvenile terrorism offender, and does so in a way which might cause unnecessary inconsistencies between jurisdictions. My view of the policy underlying s 20C is that a judge sentencing a child should have the benefit of the broadest possible range of sentencing options under both federal and State/Territory law, with the federal provisions having primacy. This policy appears to have been inadvertently obscured, if not hindered, by the interaction of s 19AG with other relevant Crimes Act provisions. A consequence of adopting my recommendation on s 19AG is that the full range of remedies provided for under s 20AB of the Crimes Act would then become available.

¹⁰ Commonwealth, Parliamentary Debates, House of Representatives, 17 November 1960, 3017 (Sir Garfield Barwick).

¹¹ The Victorian Parliament has now ensured this situation will not arise again. 

¹² Where the CDPP and the accused agree on a summary trial as contemplated by ss 4H and 4J of the Crimes Act, the matter may be determined by the children’s court of the relevant jurisdiction

¹³ See the definition of ‘issuing court’ in s 100.1 of the Criminal Code. 

¹⁴ See Justice John Griffiths and James Stellios, ‘The Federal Court and constitutional law’ in Pauline Ridge and James Stellios (eds) The Federal Court’s Contribution to Australian Law: Past, Present and Future (Federation Press, 2018). Justice Griffiths and Professor Stellios follow the steps in the 1960s and early 1970s which led to the creation of the court. See also Chief Justice Allsop, ‘The Role and Future of the Federal Court within the Australian Judicial System - 40th anniversary of the Federal Court of Australia conference’ (Speech delivered at 40th anniversary of the Federal Court of Australia conference, Sydney, 9 September 2017). < http://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20170908 >.

¹⁵ See also the report of the previous INSLM Roger Gyles: INSLM, Control Orders Safeguards: Part 2 (April 2016) ‘Recommendation 28: Criminal Code – Control orders – Definition of ‘issuing court’. 

¹⁶ (2015) 256 CLR 550, [24]

Prison access by judges

Sections 120 and 122 of the Constitution relevantly provide:

120 Custody of offenders against laws of the Commonwealth 
Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision. 
… 
122 Government of territories 
The Parliament may make laws for the government of any territory ... 

There are no federal prisons or juvenile detention facilities, nor proposals to establish any. All federal offenders, including of course juvenile federal offenders, are thus detained or imprisoned in custodial institutions established and operated by the States and Territories. 

Sentencing judges often receive submissions as to the conditions in custody for terrorism offenders, both adults and children. A number of, but not all, jurisdictions provide a statutory right for all judges in that jurisdiction to visit adult prisons and/or juvenile detention facilities.¹⁷ Some judges regularly avail themselves of that power; others, particularly those regularly exercising criminal jurisdiction, would like to do so but there are no separate funds for such visits. 

In my opinion, it is desirable that all judges have the right to visit places where federal offenders may be incarcerated – that is, all places of detention or imprisonment – and that judges regularly hearing criminal matters be put in a position to make, say, annual visits. There are a number of models available here. I favour the model in s 34 of the Corrections Act 1986 (Vic) which provides:

34 Visits by judges or magistrates 

1. A judge of the Supreme Court or the County Court or a magistrate may visit any prison at any time.
2. A person who visits a prison under this section may report on the visit to the Minister. 
3. A person’s report under this section to the Minister may include recommendations as to the action to be taken concerning any matters mentioned in the report.

In the course of consultations on this aspect of my review, the Chief Justice of the Supreme Court of Victoria stated:¹⁸

The experience in Victoria has been that judicial visits to prisons and other places of detention are important both in principle and in practice. Section 34 of the Corrections Act 1986 is considered to be a very helpful provision, even though there is often no need to formally invoke it.

Noting that juvenile federal offenders may be detained in detention facilities rather than prisons, I would extend my recommendation to prisons and other places of detention. 

I therefore recommend that COAG review current judicial visitation rights and consider providing such a right of access to all judges in the relevant jurisdiction. Alternatively, the Commonwealth should consider legislating for such a right in relation to all federal prisoners.

Parole

There is no longer automatic federal parole for terrorism offenders.¹⁹ As such, the present effect of s 19AG is that it sets a date as the earliest date when parole might be granted. Under Part 1B of the Crimes Act, the Commonwealth Attorney-General is responsible for the parole of federal offenders, and the Commonwealth Parole Office within the Attorney-General’s Department assists the Attorney in this role. Presently, the Attorney-General personally makes parole decisions concerning terrorism offenders, but relies upon reports from state or territory correctional authorities.²⁰ In principle that is unsatisfactory, even though the evidence before me is that the Commonwealth Parole Office presently receives sufficient information and assistance from State and Territory authorities to make federal parole decisions.²¹ 

I recommend that the Attorney-General (personally or by his or her delegate) have a statutory right of access to all federal prisoners. This recommendation is not only relevant to parole decisions: it goes generally to the Commonwealth’s oversight of juvenile terrorism offenders detained or imprisoned in the States and Territories. 

Given the nature of terrorism offending, the Commonwealth is, of course, already involved to some extent in the management and rehabilitation of such offenders. At the public hearing, then Commonwealth Counter-Terrorism Coordinator Tony Sheehan explained:²² 

State and territory corrections and juvenile justice agencies are responsible for the management and rehabilitation of offenders currently in custody and on parole. However, Home Affairs supports these agencies by ensuring a comprehensive national approach to addressing violent extremism in the correctional system.

This extends to work directed at the rehabilitation of offenders and the diversion of would-be offenders (work variously described as CVE, counter-radicalisation, deradicalisation or disengagement). Expert witness Dr Kate Barrelle gave evidence at the public hearing about the range of ‘excellent’ CVE programs now underway in Australia, some of them Commonwealth-funded.²³ This includes programs directed at the rehabilitation of young offenders, although as was acknowledged by Sam Grunhard, as Assistant Secretary at the Department of Home Affairs, this is ‘a relatively new field’.²⁴ 

It is my intention that this recommendation would support closer Commonwealth involvement in this field into the future.

Judicial education and exchanges

In ALRC 103, the ALRC’s views were stated as follows, in terms I adopt: 

18.15 The increasing divergence between federal criminal law and state and territory criminal law—in particular, federal sentencing law—does give rise to the need for specialist expertise in relation to the federal regime. Such expertise may be acquired in a number of ways: for example, judicial education is an important strategy for ensuring that all judicial officers who work with federal criminal law have a detailed understanding of it. 

The Chief Justice of the Supreme Court of Victoria has added:

Terrorism trials generally involve a high level of legal and evidentiary complexity and require significant pre-trial management. Cross-jurisdictional learning is an important tool. 
[emphasis added] 

In particular, I note that the courts of England and Wales: 

1. have extensive experience of terrorism trials, which are conducted by reference to procedural and substantive laws, which are frequently similar to those applied in Australia; and 
2. have identified a small group of senior judges who try such matters, including for children. They tell me they are most amenable to some Australian judges attending their annual judicial training concerning the conduct of such trials. 

There are similarities, although differences in scale, in the terrorism threats faced by Australia and the United Kingdom. There is much for each jurisdiction to learn from the other. For example, the practice note concerning the Terrorism Cases List and its management may be adopted by interested Australian courts. 

Any training in relation to children should include presentations from specialist judges drawn from the various children’s courts. There have recently been significant advances in understanding the working and development of the adolescent brain and its effects on the young person’s capacity to reason and make decisions. The same mental immaturity (measured by neuroscientists) which makes young people susceptible to influence and thus radicalisation potentially makes them more fit for rehabilitation. Accordingly it is critical for judges hearing such matters to have access to the latest research and judicial approaches in this area.

I recommend that the Parliament provide a new appropriation of monies to the appropriate Australian judicial education bodies for the next three years so as to allow two English and two Australian judges expert in the conduct of terrorism trials to travel each year to the other jurisdiction to observe the conduct of terrorism trials and to provide or receive judicial continuing legal education with a view to encouraging improvements and appropriate innovations in the conduct of such trials. Further, training in Australia should include presentations from experts, judicial and otherwise, in juvenile behaviour and how this affects trial and punishment.

Publication of material

A key function of the INSLM is in monitoring whether relevant laws remain ‘proportionate to any threat of terrorism or threat to national security, or both’.²⁵ In both Australia and the United Kingdom it is not infrequently said that the terrorism threat is overstated. It is important for public confidence that as much as possible is authoritatively revealed, provided the public interest is not thereby damaged. The question is how this is best done. 

Few oversight bodies operating in the national security context can demand answers from government departments and agencies. Under the INSLM Act, I can, but otherwise only the IGIS has equivalent powers. Although the PJCIS can and does request briefings from leaders of the intelligence community, it cannot require the production of classified material.²⁶ While it must be acknowledged that ASIO has been far more open in recent years about its counter-terrorism work, this year ASIO, at least temporarily, ceased production of its classified Annual Report which went to the Leader of the Opposition and key Ministers and Officials, as well as my office and the IGIS.²⁷ It is true that from time to time Ministers and senior officials make public statements which reveal these matters, but there is no obligation to do so. 

I conclude that the public and its elected representatives have a strong interest in being told by government with regularity and accuracy how often counter-terrorism powers are used, and consequential arrests, convictions and other limitations upon liberty, including orders made under Divs 104 (Control Orders), 105 (Preventative Detention Orders) and 105A (Continuing Detention Orders) of the Criminal Code. 

The same can be said about the permissibility of revealing at least some aspects of the work of police and intelligence agencies without harming the public interest. After the Lindt Café terrorism attack, the 2015 ‘Martin Place Siege Joint CommonwealthNew South Wales review’ revealed that there were ‘several thousand people of security concern’ and spoke of the ‘400 highest priority terrorist investigations’. There seems no reason why at least some similar information cannot be regularly revealed in relation to counter-terrorism investigations.²⁸

Lest it be thought that this is a radical recommendation, I note that the United Kingdom Home Office provides such information every three months. A number of persons I spoke to in the United Kingdom considered those publications had demonstrably raised public support for the work of the police and intelligence services, once the statistics underlying the level of the threat had been revealed. 

I therefore recommend that there be a new legal obligation, at least annually, for the appropriate Commonwealth agency to publish statistics concerning the counterterrorism threat using the UK Home Office as a guide, but how best to disclose information is a matter that may appropriately be left for future consideration or the discretion of the relevant agency.²⁹ That said, in principle, where children are included in those statistics that should be indicated and separate statistics provided. In particular, those statistics should reveal:

1. the number of terrorism arrests; 
2. the number of convictions for terrorist offences including the offences and sentences; 
3. the length of terrorism trials; 
4. the number of prisoners currently incarcerated for terrorism offences; 
5. the number and length of orders made under Divs 104, 105 and 105A of the Criminal Code; and 
6. an approximate average of the number of persons under investigation by the AFP and ASIO for counter-terrorism activity in the year in question. 

I anticipate that all of this information may be made public. If classified information is included, the additional classified material should be provided, under appropriate conditions of confidentiality, to the Leader of the Opposition, the PJCIS, the Ombudsman, the IGIS and the INSLM.

Reporting to Parliament

Finally, I recommend that within 12 months the Commonwealth government, through the appropriate Minister, advise the Parliament of its response to these recommendations, and, where relevant, any implementation of those recommendations.

I do not wish to be misunderstood in making this recommendation: it is of course a matter (initially) for the Government of the day and (ultimately) the Parliament to decide whether to accept my recommendations in any report I present. That is consistent with the object of the INSLM Act which is stated as follows: 

Object 

The object of this Act is to appoint an Independent National Security Legislation Monitor who will assist Ministers in ensuring that Australia’s counterterrorism and national security legislation: 

1. is effective in deterring and preventing terrorism and terrorismrelated activity which threatens Australia’s security; and 
2. is effective in responding to terrorism and terrorism-related activity; and 
3. is consistent with Australia’s international obligations, including: 
   
   1. human rights obligations; and 
   2. counterterrorism obligations; and 
   3. international security obligations; and 
4. contains appropriate safeguards for protecting the rights of individuals. 

When I was first appointed, the then Prime Minister said:³⁰ 

The Independent National Security Legislation Monitor is an important and valued component of Australia’s national security architecture, responsible for ensuring that national security and counter-terrorism legislation is applied in accordance with the rule of law and in a manner consistent with our human rights obligations. In particular, as it becomes more important than ever for the Government to continue modernising and strengthening our laws to address the growing and evolving terrorist and espionage threat at home and abroad, the relevance of the independent reviewer becomes similarly important. This will help ensure that our individual freedoms that underpin the Australian way of life are balanced against the need to fight terrorism and other threats with every tool at our disposal.

An important part of the process begun by conducting a review and reporting, is the timely response of the government of the day. At present, I am pleased to say that all of my recommendations and those of my predecessor, the Hon Roger Gyles AO QC, have been the subject of published decisions by government to accept them in whole or part (as is usually the case) or, rarely, to reject them. 

There have, however, been occasions in the past where other law reform reports have not been responded to. A good example in the context of this review is the ALRC’s 2006 report Same Crime, Same Time: Sentencing of Federal Offenders (ALRC 103).³¹ No government in the past 12 years has published a response to the recommendations in this report which relate to children. Rather, the only response, according to the ALRC website, has been the enactment of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth) and the creation of a federal sentencing database: matters which were a small sub-set of the report’s recommendations. 

It might be said in the case of the ALRC that it, like a Royal Commission, depends upon references or letters patent in order to perform functions, and, once it has reported its role in that regard has finished, it is functus officio. In contrast, in relation to the topic of this review, the INSLM Act permits me to continue to monitor the operation of the laws I have considered, at any time, of my own motion. 

A reference from the Prime Minister (or the Attorney-General) would not have been given unless the subject matter of the report was important. Children have special rights reflecting their special vulnerabilities. For all of these reasons, I make this recommendation.

¹⁷ See, eg, Crimes (Administration of Sentences) Act 1999 (NSW) s 229; Children (Detention Centres) Act 1987 (NSW) s 8; Corrections Act 1986 (Vic) s 34; Corrective Services Act 2006 (Qld) s 164; Prisons Act 1981 (WA) s 57; Young Offenders Act 1994 (WA) s 169; Youth Justice Administration Act 2016 (SA) s 10; Corrections Act 1997 (Tas) s 11; Correctional Services Act (NT) s 95; Corrections Management Act 2007 (ACT) s 56; Children and Young People Act 2008 (ACT) s 153.

¹⁸ Chief Justice of the Supreme Court of Victoria, Letter to the INSLM (19 October 2018) 1. 

¹⁹ Automatic parole for sentences of imprisonment for Commonwealth offences of up to 10 years was removed in 2012 by amendments to the Crimes Act (see Crimes Legislation Amendment (Powers and Offences) Act 2012 (Cth) sch 7). 

²⁰ Submission of Commonwealth Parole Office (17 July 2018) 3-4, 

²¹ Transcript of INSLM public hearing (2 August 2018, Canberra) 27. 

²² Transcript of INSLM public hearing (2 August 2018, Canberra) 17.

²³ Transcript of INSLM public hearing (2 August 2018, Canberra) 50. 

²⁴ Transcript of INSLM public hearing (2 August 2018, Canberra) 28.

²⁵ NSLM Act s 6. 

²⁶ See Part 1.1 of Schedule 1 to the Intelligence Services Act 2001 (Cth). 

²⁷ Although s 21 of the Australian Security Intelligence Organisation Act 1979 (Cth) continues to provide: 
The Director-General shall consult regularly with the Leader of the Opposition in the House of Representatives for the purpose of keeping him or her informed on matters relating to security

²⁸ I appreciate this is unlikely to be possible in the case of counter-espionage investigations. 

²⁹ UK Government, Operation of police powers under the Terrorism Act 2000 and subsequent legislation: Arrests, outcomes, and stop and search, Great Britain, financial year ending March 2018, Statistical Bulletin 09/18. < https://www.gov.uk/government/statistics/operation-of-police-powers-under-the-terrorism-act-2000-financial-year-ending-march-2018 >

³⁰ Hon Malcolm Turnbull MP, ‘Appointment of an acting Independent National Security Legislation Monitor’ (Media Release, 24 February 2017).

³¹ ALRC, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) Recommendation 27-1.

Section 19AG of the Crimes Act

RECOMMENDATION #1

Section 19AG of the Crimes Act requires adults and children alike who are convicted of a terrorism charge to serve 75% of their head sentence before being eligible for parole, and it precludes the sentencing options specified in s 20AB of the Crimes Act being available for such offenders. 

I recommend that s 19AG be amended so that s 19AG no longer applies to offenders who were under 18 at the time of offending. This will also enable the s 20AB options to be available for those offenders.

Section 15AA of the Crimes Act

RECOMMENDATION #2

Section 15AA of the Crimes Act provides that bail cannot be granted unless there are exceptional circumstances. While this does not necessarily contravene the CRC, I consider it desirable that, following appropriate consultation with COAG which is presently considering this and related issues, s 15AA should be amended to provide that in determining whether to grant bail the best interests of the child shall be a guiding consideration but that the protection of the community shall be the paramount consideration.

Accordingly, I recommend that: 

1. Section 15AA of the Crimes Act be amended so that, in the case of children, and within the exceptional circumstances test, it expressly provides for additional consideration of the best interests of the child in every case as a primary consideration, and protection of the community as a paramount consideration. 
2. The Prime Minister refer this aspect of my report to COAG for its consideration as part of COAG’s reform of the law concerning bail and parole.

Section 20C of the Crimes Act

RECOMMENDATION #3

Children who are tried for offences against Commonwealth law, including terrorism offences, face one of eight court systems with sometimes large differences in jurisdiction and procedures. Often, such cases under the current regime would be dealt with in children’s courts. 

I recommend that there be a minimum threshold set by federal law such that: 

1. Serious terrorism charges – those carrying a maximum sentence of imprisonment of 15 years or more – should always be tried on indictment (in which case s 80 of the Constitution guarantees a jury trial) and not in children’s courts. 
2. There be no change to the current provisions which permit the CDPP and the accused to agree to proceed summarily with reduced penalties where the maximum penalty would normally be (up to) ten years.³² 
3. In all other cases, the matter should be transferred to a court which can hear the matter with a jury unless the accused can persuade the court that there are special circumstances which justify the matter being heard by the children’s court. 
4. Implementation of these recommendations should not detract from the ability of State and Territory laws to lower the threshold at which point a matter must be heard on indictment.

RECOMMENDATION #4

There are a number of reasons why it is advantageous for the Federal Court to now be given concurrent jurisdiction over terrorism matters. 

I recommend that the Federal Court of Australia be given concurrent jurisdiction with the courts of the States and Territories to hear all terrorism matters, including for children. 

If this recommendation is accepted, I also recommend that consideration be given to conferring jurisdiction on the Federal Court, concurrent with the Supreme Courts of the States and Territories, to grant Continuing Detention Orders under Div 105A of the Criminal Code and any provisions to make Extended Supervision Orders as discussed in my 2017 report Review of Divisions 104 and 105 of the Criminal Code (including the interoperability of Divisions 104 and 105A): Control Orders and Preventative Detention Orders.

RECOMMENDATION #5

In Queensland a law which purports to apply in all courts may limit federal sentencing of child terrorism offenders. 

I recommend that the Crimes Act be amended to expressly exclude any State or Territory law which purports to set a maximum sentence for juvenile federal offenders which is lower than that prescribed in the Commonwealth provision creating the offence, or which otherwise deprives the court of the full range of sanctions legislated by the Commonwealth Parliament.

RECOMMENDATION #6

A consequence of the current application of s 19AG is that certain sentencing options which would ordinarily be available under s 20AB are precluded. It is desirable that courts sentencing children for terrorism offences have the full range of sentencing options at their disposal. 

If Recommendation #1 is adopted, I recommend that it be made clear that in exempting children from the application of s 19AG, it is Parliament’s intent that a judge sentencing a child for a terrorism offence be free to impose, as appropriate in the circumstances, any of the sentencing options which would ordinarily be available under ss 20AB and 20C of the Crimes Act.

Other matters

RECOMMENDATION #7

It is important as a matter of principle that judges sentencing anyone to imprisonment or detention, including for terrorism offences, have a right of access to such places. 

I recommend that COAG review current judicial visitation rights to provide a right of access to all judges in the relevant jurisdiction in the form contained in the Victorian legislation.

RECOMMENDATION #8

There being no federal prisons, all federal prisoners are accommodated in State or Territory prisons or places of detention. The Attorney-General is the Commonwealth parole authority and may need to have access to or contact with such prisoners in order to decide parole issues, but currently relies upon the goodwill of State and Territory authorities to do so. 

I recommend that the Attorney-General (personally or by his or her delegate) have a statutory right of access to all federal prisoners.

RECOMMENDATION #9

Terrorism trials throw up difficult, sometimes unique, challenges for the presiding judge, and federal sentencing is extremely complex. Enhancing judicial training, including on the unique issues arising in the trial of children, is highly desirable. The Judges of England and Wales who regularly try terrorism matters welcome the participation of Australian judges in their annual training, as in turn do Australian judges. The details of such training are matters for the independent judiciary. 

I recommend that the Parliament provide a new appropriation of monies to the appropriate Australian judicial education bodies for the next three years so as to allow two English and two Australian judges expert in the conduct of terrorism trials to travel each year to the other jurisdiction to observe the conduct of terrorism trials and to provide or receive judicial continuing legal education with a view to encouraging improvements and appropriate innovations in the conduct of such trials. Further, training in Australia should include presentations from experts, judicial and otherwise, in juvenile behaviour and how this affects trial and punishment.

RECOMMENDATION #10

It is important for public confidence that as much information about the terrorism threat as possible is authoritatively revealed, provided the public interest is not damaged by that disclosure. 

I recommend that there be a legal obligation, at least annually, for the appropriate Commonwealth agency to publish statistics concerning the counter terrorism threat. Where children are included in those statistics that should be indicated and separate statistics provided. In particular those statistics should reveal: 

1. the number of terrorism arrests; 
2. the number of convictions for terrorist offences including the offences and sentences; 
3. the length of terrorism trials; 
4. the number of prisoners currently incarcerated for terrorism offences; 
5. the number and length of orders made under Divs 104, 105 and 105A of the Criminal Code; and 
6. an approximate annual average of the number of persons under investigation by the AFP and ASIO for counter-terrorism activity in the year in question. 

I anticipate that all of this information may be made public. If classified information is included, the additional classified material should be provided, under appropriate conditions of confidentiality, to the Leader of the Opposition, the PJCIS, the Ombudsman, the IGIS and the INSLM.

RECOMMENDATION #11

An important part of the review process conducted by the INSLM, and the INSLM’s ongoing role, is the response of the Government of the day to INSLM recommendations. 

I recommend that within 12 months the Commonwealth Government, through the appropriate Minister, advise the Parliament of its response to these recommendations, and, where relevant, any implementation of those recommendations.

³² Where the CDPP and the accused agree on a summary trial as contemplated by ss 4H and 4J of the Crimes Act the matter may be determined by the children’s court of the relevant juristiction.