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Supplementary submission: Review of Australian Federal Police Powers

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'. 

In response to questions from the Shadow Attorney-General, the Hon Mark Dreyfus QC MP, the Law Council offered to provide a supplementary submission commenting on suggestions made in the submission of the Australian Federal Police (AFP) (submission 2) for amendments to the control order (CO) regime in Division 104 of the Criminal Code Act 1995 (Cth) (Criminal Code).

The AFP submission indicated that the AFP’s ‘increased use of these orders has identified a number of challenges to law enforcement in applying for, monitoring and enforcing the orders’.1 The AFP suggested amendments pertaining to case management powers for CO applications, rules concerning ex parte CO applications, the conditions able to be imposed in COs, the maximum duration of COs, the variation of CO conditions, removal of certain requirements for the service of documents, and the removal of certain requirements of proof in confirmation proceedings.2

Most of the recommended amendments would significantly reduce important safeguards presently forming part of the CO regime. The AFP submission does not provide concrete evidence of problems arising in control order applications, and contains only limited explanation, at a theoretical level, of the perceived problems. The Law Council considers that there is not a compelling case for implementing the majority of the AFP’s recommended amendments.

There are, however, two recommended amendments to which the Law Council does not object. They are the rules governing the hearing of applications on an ex parte or inter partes basis; and a proposal to enable temporary suspensions of CO conditions, but subject to necessary statutory safeguards. 

Read the full submission below.
 


1 AFP, Submission to the Parliamentary Joint Committee on Intelligence and Security review of AFP powers, (August 2020), 5 at [16].

2 Ibid, 5-8 at [20]-[32].
 

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