Kylea Tink (North Sydney, Independent) Share this | Hansard source

I rise today to speak for the people of North Sydney on the Counter-Terrorism Legislation Amendment (AFP Powers and Other Matters) Bill 2022. The introduction of this bill provides an important opportunity for the 47th Parliament to review, reflect and comment on this crucial area of law, which sits at the nexus between safety and freedom, and between security and respect for human rights. It is undeniable that both are fundamental to the society that we all wish to live in and want to create for our children. But it is also undeniable that this is a delicate balance to strike in a rapidly changing and complicated world. The late Margaret Stone AO was a former justice of the Federal Court of Australia, and Inspector-General of Intelligence and Security from August 2015 until her retirement in August 2020. As she said:

The tension between secret intelligence and civil rights and liberties is not reconcilable; inevitably, secrecy threatens rights, and rights weaken secrecy.

In these circumstances, I note the purpose of the government's proposed amendment bill to extend for 12 months the sunsetting dates for stop, search and seizure powers; control orders; and preventative detention orders. This extension is for the express purpose of giving the government time to consult on, and then implement, its response to the Parliamentary Joint Committee on Intelligence and Security's bipartisan recommendations following its report presented to parliament in October 2021. This is a significant undertaking. The committee has made numerous recommendations. Key stakeholders including the Law Council of Australia and the Australian Human Rights Commission have previously raised real concerns about extending these exceptional powers. Using control orders as a case in point, these orders, once executed, can last for 12 months and prevent a person from associating, or communicating, with specified individuals or accessing technology, including the internet. They can require a person to participate in specified counselling or education, to remain at specified premises between specified times on specified days for up to 12 hours a day and to wear a tracking device—all if a court decides that the allegation is more likely than not, which is a much lower standard of proof than that required to start a criminal prosecution.

Preventative detention orders allow police to detain people secretly for up to two weeks if, for example, there are reasonable grounds to suspect that the person will engage in a terrorist act, if that person possesses a thing connected with the preparation for a terrorist act or if that person has done an act in preparation for a terrorist act—basically, if the person is even suspected of being able to do something like that. Yet the detainee is not required to be informed of the reasons for their detention, is not entitled to contact any person except a family member or similar to let them know that they are safe but not able to be contacted for the time being, and is subject to having all communications with their lawyer monitored. This is the stuff of Hollywood fiction. Look no further than the Steven Spielberg movie Minority Report to see it play out on big screens.

To give just one example of how concerning I know this is for my constituency, one of my constituents was so concerned by the rushed passage, over the strenuous objections of the Law Council of Australia, of the telecommunications amendment bill—known colloquially as the 'Mandatory metadata retention bill'—that, in addition to calling her local member, she wrote individually to every senator of New South Wales to express her alarm and consternation. That bill introduced one of the most comprehensive and intrusive data collection schemes in the Western world. So where do we currently stand and how does that compare to the legislative framework of similar or equivalent nations? In the 22 years since 9/11, Australia has enacted more than 130 piece of national security legislation; no other nation can match the volume of Australia's counterterrorism laws,. But it's not just the volume of the legislation that is noteworthy. The time spent considering the laws in draft before they are enacted is becoming shorter and shorter. The original antiterrorism laws in 2002 took many months to be considered before enactment. Now the speed with which laws are passed has led to one of the world's leading experts in counterterrorism laws, Professor Kent Roach of the University of Toronto, to describe Australia's approach as 'hyperlegislation'. The speed was fastest under the Howard government when, on average, a new counterterrorism law was passed every 6.7 weeks. The law preventing live streaming of terrorist acts introduced after the Christchurch massacre took just a week or so.

This haste should concern us all, for, as our third Independent National Security Legislator Monitor, Dr James Renwick CSC, SC noted, 'Speed in passing laws can sometimes be necessary, but it brings the risk of error and overreach.' In Australia, we are particularly vulnerable to overreach because, unlike other jurisdictions, we do not have a bill of rights. This means the government has been able to enact counterterrorism laws that would not be possible anywhere else in the world. For example, the mandatory retention of Australians' telecommunications metadata for two years would not be possible in the EU. The European Court of Human Rights has held that a blanket retention for that period of that time infringes a basic right to privacy. Similarly, in a review of counterterrorism laws in 2013, the Council of Australian Governments reported that preventative detention orders were more likely to be seen in discredited totalitarian regimes. An additional concern is how far the balance has moved, in Margaret Stone's words, 'from rights to secrecy'. Our hyperlegislation enables and entrenches high levels of secrecy. It is a crime to mention basic details about the use of many counterterrorism powers or even the mere fact that they were used.

These offences pose a serious risk to journalists and whistleblowers. Few would forget the dramatic days of raids by the Australian Federal Police on journalists at the ABC and News Corp in 2019, which prompted outrage and drew international attention to Australia's draconian secrecy laws. In relation to whistleblowers, the recent prosecutions of Bernard Collaery and Witness K, shrouded in secrecy and even conducted in closed court, provide examples of these tensions at work. As the decision of the ACT Court of Appeal in the Collaery case makes clear, the open hearing of criminal trials is important because it deters political prosecutions and allows the public to scrutinise the actions of both the prosecutors and the accused.

Although no-one would dispute the need for counterterrorism laws, we must also maintain the trust and avoid the persecution of minority communities and avoid transgressing rights to the point that grievances lead to radicalisation. The risk of getting the balance wrong and excessively eroding our human rights in the pursuit of protection from terrorism could, ironically and tragically, make us less safe. As the former UN Secretary-General Kofi Annan said in 2005:

… compromising human rights cannot serve the struggle against terrorism. On the contrary, it facilitates achievement of the terrorist's objective …

These are complex and vital issues for our society, well deserving of the extension of time sought by the government to review, consult and reform. Counterterrorism legislation measures should be justified as necessary, proportionate and consistent with rule-of-law principles. This is an important time to remind all of us—sitting as members in Australia's 47th Parliament—of Dr Renwick's salutary warning about these laws:

While often controversial in principle and almost always contestable as to their terms, they seem to have become permanent.

Over time, what were once seen as extraordinary laws have become acceptable as normal. This bill provides an opportunity to revisit the permanence of our hyperlegislation.

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