Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Assistant Minister for Defence) Share this | Hansard source

WAITE (—) (): The unfortunate and evil events that we've seen in the Middle East of recent times highlight the importance of Australia's counterterrorism, police, and security and intelligence agencies having the appropriate mechanisms and legal backing to ensure that Australians are kept safe into the future. The great thing about our nation is that we've made a success of multiculturalism. That success has been based upon respect for people of diverse backgrounds, diverse religions and minorities, but it's a very, very fragile part of our democracy and it doesn't take much to ensure that that success is undermined. That's why it's important that the parliament is continually updating our security and intelligence legislation to ensure that Australians are kept safe from impending threats into the future and that, into the future, we continue to be a very successful multicultural nation based on respect for diversity.

This bill, the Counter-Terrorism and Other Legislation Amendment Bill 2023, is about ensuring that we regularly update our counterterrorism laws in this country. It will ensure that our law enforcement agencies are equipped with the tools that they need to respond to terrorism and violent extremism, keeping Australian safe into the future. The bill provides for the continuation and enhancement of key counterterrorism powers. The bill also, importantly, enhances safeguards. It ensures that we get the balance right between protecting Australians and protecting civil liberties. That's not an easy thing to do, but we believe that, because we have a committee like the Parliamentary Joint Committee on Security and intelligence that is able to thoroughly look over proposals such as this and recommend changes to the parliament, we are able to get the balance right in Australia. The powers that are promoted by this are always subject to the rule of law and procedural fairness, and that's what comes through in the report of the PJCIS.

The majority of the measures in this bill implement recommendations made by the parliamentary joint committee in its 2021 AFP powers review. That review looked into police powers in relation to terrorism, the control order regime, preventive detentions and the continuing detention order regime. The first group of amendments under this bill relates to amendments to the Crimes Act. The bill extends the operation of the stop, search and seizure powers for a further three years, to 7 December 2026. That will ensure that the police remain equipped to prevent and respond to terrorist acts and, also, that the provisions are reviewed again within an appropriate period to ensure that they continue to be fit for purpose and meet the objective of countering current threats.

The bill also introduces new requirements for the minister, before declaring a prescribed security zone, to consider a number of specific matters, including the reasonableness and proportionality of that course of action and whether other less invasive powers are available to prevent or respond to a terrorist act. Given the impacts of such a declaration on the rights and freedoms of individuals in a prescribed security zone, this requirement ensures that the power is only exercised as absolutely necessary. The bill also imposes requirements on the Australian Federal Police commissioner and the minister to retrospectively notify specified oversight bodies within 72 hours of the declaration of a prescribed security zone and the reasons for making that declaration. That will assist oversight bodies in the performance of their important functions of investigating and reviewing the making of these declarations and the exercise of police powers in those prescribed security zones.

The bill also requires a police officer who has exercised stop and search powers for a terrorism related item to inform the person who has been stopped and searched of their right to make a complaint to an oversight body. Again, that's another protection that's been built in with this reform.

The amendments to the Criminal Code extend the operation of the control order and preventive detention order regimes for a further three years to 7 December 2026 so law enforcement agencies can rely on a control order as a critical disruption measure and a measure of last resort to protect the community from a potential terrorist act. Preventive detention orders are an important measure, albeit an extraordinary one, that enables police to disrupt terrorist activities. This bill will limit the power to issue control orders to the Federal Court of Australia and limit the class of persons within the Federal Court of Australia who may be appointed as an issuing authority for preventive detention orders to a superior court judge only. We're making sure that there are as many safeguards as possible to ensure the very judicious use of these orders in very exceptional circumstances. This acknowledges the seriousness and the extraordinary nature of these orders and the significant volume of evidence that must be considered in making these decisions.

The bill also introduces a requirement that the issuing court must consider the combined effect of all the conditions in the control order in addition in to the appropriateness of the individual conditions. That will ensure that the totality of the conditions is appropriate in response to the control order's risk. The bill will allow for the court to impose any condition it considers appropriate as part of that control order in the same way that the court can currently as part of an extended supervision order. This will provide the court with the greatest discretion to tailor control order conditions to mitigate specific risks posed to an individual and their circumstances.

The bill will also allow the AFP or the controlee to apply to a court to vary a control order or an interim control order by consent, including adding new conditions to that order. That will allow greater flexibility in ensuring the control order's conditions remain appropriate to the controlee's circumstances, which may change during the life of the order. The bill would require the court to consider the best interests of the controlee in determining whether the variation is appropriate where the controlee is a minor. This bill will also expand the public reporting requirements in relation to the operation of postsentence audit regimes to improve transparency.

The bill also extends the sunsetting date on section 1124 of the Criminal Code by 12 months to 29 December 2024. This will maintain criminal liability for approximately 296 nondisclosure duties applying to current and former Commonwealth officers until the review of Commonwealth secrecy offences is finalised and considered by the government, including any proposed reforms.

The bill also makes minor consequential amendments to the Australian Security Intelligence Organisation Act to ensure control order conditions are described consistently across the Commonwealth statute book. The bill amends the Administrative Decisions (Judicial Review) Act to provide that the decision of an AFP member to consent to the variation of an interim or confirmed control order will not be subject to judicial review as is currently the case in relation to variations of interim control orders under the provisions of the Criminal Code that the bill would repeal and replace.

The final element of this bill comes about as a result of a further recommendation of the PJCIS through that inquiry. That relates to the establishment of a post-entry warrant framework. Currently, the Australian Federal Police have the power to enter a premises without a warrant in exceptional circumstances, and those urgent and exceptional circumstances relate to evidence that a suspect is imminently going to destroy evidence that is relevant in a matter that may be subject to AFP proceedings and arrest and, of course, where there is an imminent risk to the life or safety of a human being.

These amendments establish an administrative scheme which would require a police officer who undertakes a search without a warrant to apply for a post-entry warrant as soon as practicable after exercising or purporting to exercise the powers under section 3UEA of the Crimes Act. This implements the 2021 bipartisan recommendation from the Parliamentary Joint Committee on Intelligence and Security which called for this ex post facto warrant regime to be established for the extraordinary use of those powers that allow the AFP to enter a premises without a warrant in certain circumstances. So these amendments provide an additional critical safeguard for the use of those emergency powers in extraordinary circumstances. Due to the complexity of developing the scheme, those measures weren't able to be included in the original bill when it came before the House, and therefore they are now included in this bill.

In conclusion, the safety and welfare of the Australian people is paramount for the Albanese government. These measures ensure that we have struck the right balance between protecting the Australian people and trying to counter terrorism and acts of violence against Australians in all circumstances while at the same time balancing the civil rights and civil responsibilities of Australians. Thankfully, we have great committees in this place, like the PJCIS, that can advise government, after consultation with the Australian people, about getting that balance right. That's what this bill is all about.

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