Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

Labor supports this bill. The bill responds to a recommendation that was made by the Independent National Security Legislation Monitor—in 2017!—to establish a federal extended supervision order regime. It is but one of the many valuable recommendations that have been made by independent monitors since the establishment of that office by the Rudd government in 2010 and is yet another reminder of the value of that office. The monitor helps to maintain the Australian people's confidence in our security and intelligence agencies by ensuring that our security laws are effective and fit for purpose and contain appropriate safeguards for protecting the rights of individuals. The monitor position is modelled on a similar institution in the United Kingdom, which has now operated successfully for two decades. It is important to remember that the current government tried to abolish the independent monitor in 2014. It is a very good thing that, thanks to strong opposition by Labor, the government failed. Even better, the government appears to now appreciate the value of this important institution.

The Liberals' initial strident opposition to and eventual embrace of the Independent National Security Legislation Monitor has followed a familiar pattern. When the Hawke government introduced legislation in 1986 to establish the first parliamentary committee to oversee Australia's intelligence services, the Liberal Party opposed the proposal in the strongest possible terms. The then Deputy Leader of the Liberal Party even declared, disgracefully, that the then Labor government's modest proposal for parliamentary oversight 'gives one very grave doubt about whether they are loyal to this country'. Today, the Liberals support the work of the intelligence and security committee.

When the Hawke government introduced legislation, also in 1986, to establish the Inspector-General of Intelligence and Security, the Liberals expressed what the then shadow Attorney-General, John Spender, described as 'real reservations' about the proposal. The Liberal Party was particularly horrified at the thought of the inspector-general having the power to investigate acts or practices of intelligence agencies that are or may be inconsistent with human rights. The Liberal Party described that particular power as 'rationally inexplicable' and moved amendments to remove this power from the inspector-general. Thankfully, those amendments failed, and today, 35 years later, most Liberal MPs appear to support the role of the Inspector-General of Intelligence and Security. Long may that support continue.

Turning to the bill itself: if it becomes law, it will be possible for authorities to seek an extended supervision order as an alternative to a continuing detention order. Under a supervision order, an offender would be released into the community at the end of his or her sentence but would be required to comply with prohibitions, restrictions or obligations that were, in the court's view, reasonably necessary, and appropriate and adapted, to protect the community. The standard of proof that would apply to extended supervision orders would be the balance of probabilities—that is, the court would have to be satisfied, on the balance of probabilities, that the individual posed an unacceptable risk of committing a serious terrorism offence. This is a lower standard of proof than the standard that applies to continuing detention orders. The government argues that this reflects the less restrictive nature of an extended supervision order as an alternative to a continuing detention order.

The bill is also intended to address what the government describes as 'the current lack of interoperability between CDOs and control orders in the Criminal Code due to the different courts from which these orders may be sought.' Currently only federal courts can make control orders and only state or territory supreme courts can make continued detention orders. That means that a supreme court cannot make a control order or any other type of post-sentencing order if, in the view of the court, less restrictive measures would be effective in preventing the unacceptable risk. If this bill becomes law, a state or territory supreme court would be able to make an extended supervision order as an alternative to a continuing detention order. This is a practical and useful reform, which is of course why the Independent National Security Legislation Monitor proposed it.

The Parliamentary Joint Committee on Intelligence and Security, in its report, made a range of unanimous and bipartisan recommendations to improve the bill, including the inclusion of additional factors that an issuing authority must consider prior to issuing an extended supervision order, including whether a person is already the subject of another post-sentence supervision order under state or territory legislation; providing that a court may make an order requiring the Commonwealth to bear all or part of the reasonable costs and expenses of the offender's legal representation for an extended supervision order proceeding; requiring an issuing authority to assess the necessity and proportionality of the combined effect of all of the proposed conditions of an extended supervision order, not just the necessity and proportionality of each individual condition in isolation; ensuring that conditions imposed under an extended supervision order cannot amount to effective detention, by providing that a supervision order cannot require an individual to remain at a specified premises for more than 12 hours in any 24-hour period; ensuring that authorities cannot impose new conditions under an interim supervision order unless the subject of the order consents; and ensuring that authorities can exercise discretion when it comes to minor or unintentional breaches of a supervision order—that is, discretion not to prosecute a breach. The committee also recommended that the government commission an independent review of the range of risk assessment tools that are available to evaluate whether a person poses a risk of committing terrorist acts and that there be a statutory review of the new powers within 12 months after the Independent National Security Legislation Monitor, the INSLM, completes his review, noting that the INSLM is due to commence his review 'as soon as practicable after 7 December 2021.'

The government has largely accepted each of these recommendations, although it has argued that legislative amendments are unnecessary to achieve two of the committee's recommendations, with some justification. The government has, however, rejected part of recommendation 7, which is that proposed clause 105A of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 be amended to require that interim supervision orders, first, may not be subject to application to include new conditions prior to confirming an extended supervision order and, secondly, may be amended with the consent of both parties. The government has rejected the first part of this recommendation on the basis that it would like to retain the ability to have new conditions imposed under an interim supervision order provided that those new conditions are agreed to by the independent issuing authority. This was a considered, bipartisan and unanimous recommendation of the committee, and, in the event that Labor are successful at the next election, it is a recommendation that we would revisit in government.

Not all of the concerns that were raised by submitters to the committee's inquiry will be addressed by the government's amendments and nor were all of those concerns addressed by the committee's recommendations. For example, the Law Council of Australia was not persuaded that amendments to the bill put forward by the Attorney-General's Department and the Department of Home Affairs in August that would allow a control order or an extended supervision order to apply to a person in immigration detention were necessary. In common with a number of submitters, Labor members of the committee also expressed concern that where the bill departs from recommendations made by the Independent National Security Legislation Monitor those departures had not been adequately justified by the government.

If this bill becomes law, the Independent National Security Legislation Monitor will be required to undertake a review of the measures contained in the bill as soon as practicable after 7 December 2021. Just as importantly, the intelligence and security committee will be able to commence its own inquiry within 12 months of the independent monitor's report being completed. Those reviews will provide the monitor, the parliament and civil society groups with the opportunity to evaluate the practical application of the measures contained in this bill and to consider whether further improvements are necessary or desirable. I commend the bill to the House.

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