Review of the prosecution and sentencing of children for Commonwealth terrorist offences
The Law Council is pleased to participate in the Independent National Security Legislation Monitor’s (INSLM) review of the prosecution and sentencing of children for Commonwealth terrorist offences (the Review), including:
- the prosecution of children under section 20C of the Crimes Act 1914 (Cth) (Crimes Act);
- the presumption against bail for those charged with particular offences relating to terrorism, including children, under section 15AA of the Crimes Act; and
- the sentencing of children under section 19AG of the Crimes Act.
The Law Council welcomes the Review as consistent with its recommendation to the Parliamentary Joint Committee on Intelligence and Security Inquiry into the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017.
This submission seeks to provide the Law Council’s views in relation to a number of questions that the INSLM has raised with the Department of Home Affairs, the AttorneyGeneral’s Department, the Australian Federal Police and the Australian Security Intelligence Organisation (the Australian Government agencies) to assist the INSLM’s review.
It also supplements these views where required on other matters relevant to the Review. The Law Council is grateful for the opportunity to consider the Australian Government agencies’ submissions and the INSLM’s Background Papers in preparation of this submission.
The key recommendations of this submission include:
- the outstanding Australian Law Reform Commission (ALRC) recommendations should be implemented, particularly the development of best practice guidelines for juvenile justice which include federal minimum standards that reflect the purposes, principles and factors stated in the juvenile justice legislation of the states or territories, together with the principles that the well-being of the young person shall be a guiding consideration, and detention should be used as a measure of last resort, and only for the shortest appropriate period;
- the Victorian Government’s Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers recommendations that rehabilitation and reintegration programs should be developed and funded across the States and Territories and offered as alternatives to imprisonment, to an accused person on remand or bail, and/or during the period they serve their sentence in custody;
- there should be no provision for a grant of bail to be stayed if the prosecution notifies an intention to appeal, particularly in the case of children;
- section 15AA should be amended to provide that the requirement for exceptional circumstances imposed by the section does not apply to a child charged with any of the offences to which the section 15AA applies; section 15AA should also provide that, when bail is being considered for a child charged with a Commonwealth offence, the best interests of the child shall be a primary consideration;
- the INSLM find that section 19AG of the Crimes Act should be repealed on the basis that it:
(a) is an attenuated form of mandatory sentencing which interferes with the ability of the judiciary to determine a just penalty which fits the individual circumstances of the offender and the crime; and
(b) may be inconsistent with Australia’s international human rights obligations;
- if section 19AG is to be retained, children should be exempted from its operation; and
- any review undertaken by the INSLM regarding when a Children’s Court should have jurisdiction over federal terrorism matters should inform the development of best-practice guidelines for federal children terrorist offenders.