Christian Porter (Pearce, Liberal Party, Parliamentary Secretary to the Prime Minister) Share this | Hansard source

I rise to speak on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, which enacts amendments to the Criminal Code Act 1995 and the Intelligence Services Act. With respect to the latter act, the bill makes explicit the statutory duty of ASIS to assist the ADF in overseas military operations and it also addresses some limitations in emergency ministerial authorisations which apply variously to ASIS, ASD and AGO.

The contribution I wish to make today will deliver some observations regarding the amendments in this bill to the Commonwealth Criminal Code. Essentially, the bill amends the control order provisions of the Commonwealth Criminal Code to allow them to be obtained in a new set of circumstances. I want to make three observations in the time available. First of all, I want to note what this bill effects in terms of changes to the present control order regime. Secondly, I want to provide some consideration of what the control order system in the Commonwealth Criminal Code is—that is, provide a brief examination of the mechanics of what the control order system does. Thirdly, I want to provide a brief assessment on who in this parliament and in a civic society are opposed to these changes and why. To anticipate the conclusion of this third observation, in a time when bipartisanship is rare—this does have bipartisanship support—the opposition that is presently provided in and outside of this parliament to these changes, and indeed to the control order system per se, I would describe as representing a fringe element of Australian society. I also want to make some comments about why it is that the reasons they offer for opposing these changes to the control order system are wrongheaded, completely ill informed and represent a laziness that should not be delivered to the level that it has been in this parliament.

Firstly, with respect to the changes to the control order system, control orders can be sought in a number of circumstances and, to receive one, certain things have to be shown to a certain standard. What this bill does in essence is slightly but importantly broaden the bases upon which you can seek and eventually receive a control order, should you be able to prove to the requisite standard certain things. The extension is with respect to two possible scenarios. Firstly, the AFP member can seek the Attorney-General's consent, or indeed a court can issue a control order, in circumstances where it can be shown that the order would substantially assist in preventing the provision of support or the facilitation of a terrorist act. The second broadening is that the AFP can seek, and a court can issue, a control order if it can be shown to the relevant standard that the control order would assist in preventing the provision of support or facilitation of a terrorist act or engagement in a hostile activity. So there are two extensions—showing that it can assist in preventing the provision of support or facilitation, or showing that it can prevent engagement in a hostile activity in a foreign country. The reason that has become necessary is clear to bipartisan members of the coalition and the Labor Party, and it is simply that those two things are now occurring with greater frequency than they did in the past. So there has become a need to add to the list of things that form the basis of a control order those two phenomena that we are now encountering.

Those are relatively modest changes to the extent that they expand the control order regime, but they are very important for the fact that they represent the ability of the government to adapt and improvise and overcome new phenomena in the execution of terrorism and terrorist acts. That brings me to my second point, which is a description of what control orders do. Perhaps there is no better simple description of what they do than in the 2008 publication by the Australian Human Rights Commission A Human Rights Guide To Australia's Counter-Terrorism Laws. It says:

A control order can allow a variety or obligations, prohibitions and restrictions to be imposed on a person for the purpose of protecting the public from a terrorist act. For example, a control order can require a person to stay in a certain place at certain times, prevent a person from going to certain places or talking to certain people, or compel the person to wear a tracking device. These restrictions can impact on fundamental rights and freedoms, including the rights to liberty, privacy, freedom of association, freedom of expression and freedom of movement.

That is a relatively simple, crisp and fair description provided by the Human Rights Commission. Control orders place obligations or restrictions on a person—most often attaching to that person's freedom of movement and, obviously, their liberty—based on something that has been shown to a civil standard of proof. That something is set out in the act, and what we are debating here today is whether that something should be extended to those two things I mentioned—that is, showing that the order would substantially assist in preventing the provision of support or facilitation of a terrorist act or engagement in a hostile activity.

It is worth noting that being able to go before a court as a law enforcement officer on behalf of a law enforcement organisation and convince a court to some civil standard that something has happened or that something is likely to happen and thereby you need an order to prevent that thing from happening is an often used mechanism across all jurisdictions in Australia and all Common Law jurisdictions. There is nothing radical, novel or new about that type of provision. I would also make the point that there are a whole range of things that fall into this category, this type of mechanism. Bail is one of those things. Restraining orders in domestic violence circumstances are another example. It also includes prohibited behaviour orders, which exist in the Western Australian jurisdiction; anti-social behaviour orders, which exist in the UK; control orders in a range of legislation aimed at outlaw motorcycle groups throughout Australia; and dangerous sex offender legislation that exists in a range of jurisdictions throughout Australia. These all engage this fundamental mechanism that is also engaged in in the control order provisions of the Commonwealth Criminal Code, which is to require a law enforcement authority to show to a civil standard that something may happen. If they can do that, certain consequences will flow—orders issued by the court which, if breached, have penalties attached.

The standards for all of those things I have mentioned—bail, VROs, PBOs, ASBOs, bikie legislation and dangerous sex offender legislation—often vary but they are all civil standards. So, in the most serious of circumstances—for instance, the continuing detention of a dangerous sex offender—you will likely find that the civil standard will be a high probability, or more likely than not. In the case of control orders, it is a balance of probabilities—so, if you like, crudely, a 50 per cent prospect of the thing argued to be likely to happen actually happening. But there are also lower standards that are often used in things like bail and so forth, which are reasonable belief or reasonable suspicion. All of the standards that apply to these types of civil orders fall significantly beneath the criminal standard, which is the highest standard known to the law: beyond reasonable doubt.

Thereby, in summary, they are civil orders; they are decided by a court on a civil standard and, in the case of control orders, balance of probabilities. They have been held by a succession of High Court decisions to be protective, not punitive orders in terms of their legal definition. That is to say that they protect the public and indeed in many instances protect the interests of the subject, often protecting them from themselves and their own proclivities. Finally, they have been found on a number of occasions to breach no principle of our Constitution. They do not confound the role of the executive with that of the judiciary; they do not breach the Kable principle, as has been shown in cases like Thomas and Mowbray; nor do they breach any constitutional principle applying in Australia to the procedural fundamentals of a fair trial. They are used very often; they are constitutional in every given respect. What they do is provide a system which assesses a person's future risk of doing a certain thing which society views as incredibly dangerous, unwarranted or unwelcome and then make certain restrictions on a person's liberty based on that assessment of risk—the prospective assessment of risk.

The point that I would then go on to make, which is the second point of this contribution, is that those people in this parliament and outside it who are opposed to these changes to control orders are also opposed consistently to the control order regime itself and in many instances explicitly show their opposition to all of those other types of civil based orders that I have described or indeed, by logical inference, have to be opposed to those types of things.

I will give one example from Senator Leyonhjelm in the other place. He said:

… something, in and of itself, obnoxious because it confounds the basic principle that people should not be deprived of their liberty without a finding of guilt..

This is in reference to this very bill. He goes on to say:

Finally, control orders are civil orders—the grounds for one need only be made out on the balance of probabilities—yet to breach one attracts a penalty of five years' imprisonment. The idea of sending someone to jail for five years for something he says, on a balance of probabilities, should not be entertained in a liberal democracy.

I must say that is wrong, inconsistent, confused and a gross misapprehension of the actual situation that exists in criminal and civil law.

With regard to arguing that this confounds some basic principle that people should not be deprived of their liberty without a finding of guilt: if what is being proposed is that such a principle should exist, that is one thing. If what is being proposed is that such a principle does exist, it is completely and utterly wrong. The real fact is that, in a whole range of circumstances, people in Australia are jailed for breaching civil orders which are given on balances of proof well beneath the criminal standard. The mistake that is being made here is to confuse the jailing with the breach of the order, with the standard that is required for the delivery of the order itself. And, again, what it misunderstands is the fact that these types of orders exist everywhere in Australia in a whole range of circumstances.

The reality is—I will provide this example—that, if you oppose a control order on the types of bases that Senator Leyonhjelm does, you must also by necessary inference oppose a violence restraining order as a matter of system and principle. A violence restraining order is applied for, often by local police on the basis that they say there is a balance of probabilities risk that certain behaviour will occur in future based on patterns of behaviour in the past, and the person is given a civil order which restricts their liberty—they should not go to certain residences or addresses, notably that of the partner, at certain times. If breached, that carries a criminal penalty, but the order itself is civil. If you find that obnoxious then you cannot equally support that in the context of domestic violence.

Again, there is a whole range of opposition to this which is absolutely and completely inconsistent. We had Senator Wright say:

Control orders can be applied to people who have not been charged with a criminal offence and even to people suspected of harbouring a criminal intent.

First of all, that is not entirely correct. What has to be shown is that there is a balance of probabilities likelihood that something in the future will happen—in this case there could be material support for terrorism or engaging in support for hostile activities abroad. Further, the person has in fact provided support for or otherwise facilitated a terrorist act or hostile activity in a foreign country. It is said by Senator Wright:

As drafted, the bill allows control orders to be sought if reasonably suspected to be necessary to prevent the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country and preventing the provision of support for, or the facilitation of, a terrorist act. This is a very slippery slope.

It is not. These things exist right across Australia in every jurisdiction that we have. The reality remains that in a whole range of circumstances we allow for civil orders which if breached carry penalties of imprisonment. Perhaps the best example of this is in dangerous sex offender legislation. As I have said, there have been many cases—Fardon in Queensland is a case. At the level of the United Nations Human Rights Committee there was an assessment that Mr Fardon should not have been detained or indeed placed on prohibitive orders after he was detained in prison because of the risk. The High Court of Australia said that he could and that the parliament was well within its rights to issue legislation which said that the person could be detained. So, if you do not support it here, it is inconsistent to support it elsewhere. It should be supported in all of the places in Australia where it exists.

I go back to that initial document that I read from, which is the Human Rights Guide to Counter-Terrorism Laws, the major difficulty with the Australian Human Rights Commission's view on these matters, if I might gently say so, is that that report commences with a bold statement that human rights may be infringed by counter-terrorism laws but neglects also at any point to note that human rights might also be protected by counter-terrorism laws. They note that the right to a fair trial, the right to freedom from arbitrary detention and arrest and the right not to be subject to torture might be abridged—and I will take some measure of difficulty with that based on High Court decisions. But, in any event, other ICCPR rights, which are seen as non-derogative, such as the right to life and the right to freedom of expression, will be protected by these orders, and that is why they should be supported.

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