Zoe Daniel (Goldstein, Independent) Share this | Hansard source

Lawmakers need to think very carefully before restricting the human rights and freedom of movement of our citizens, and I don't think building in restrictions on a 'just in case' basis, with no specific reasoning or circumstance in mind, stacks up. As security agencies have recently announced, we may be in an environment of heightened terrorist threat, but the Director-General of ASIO himself, Mike Burgess, says the most likely perpetrator is someone acting alone and with no planning. Just yesterday, on Insiders on the ABC, he said: 'Remember the most likely terrorist attack in this country right now is an individual that will go to violence with little or no warning and actually little or no planning. It could just be a reaction to language they've heard from someone, including a politician.' This legislation, the Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024, will not prevent that kind of attack. I am far from naive or blind to the geopolitical risks affecting the world and the associated risks to Australia. However, governments should not get attached to this kind of restrictive law.

In June 2014, Islamic State, a truly ghastly and gruesome militant terrorist group, took advantage of the Middle East's geopolitical instability and launched a coordinated surprise offensive into Syria and Iraq. Raqqa and Mosul quickly fell. Islamic State captured about a third of Syria and 40 per cent of Iraq. On cue, US led coalition air strikes began. Three years later, Islamic State had lost 95 per cent of the territory it had gained, and the risk it posed to Australia likely diminished correspondingly.

As one assesses the merits of a bill or law, the historical context in which it was drafted must be taken into account. When the Abbott government introduced the declared areas provisions in the wake of this surprise offensive, Australia was facing an urgent security threat of ideologically motivated returning foreign fighters. But history has moved on. Islamic State is no longer the target of this legislation. The declared areas provisions have become an anachronism in a changed geopolitical landscape. Their basis of legitimacy is reduced and is no longer proportionate to the threat we face today—no identified enemy and no particular urgent threat. If there is a specific threat to justify this legislation, the government should articulate it.

In the decade following the enactment of declared areas powers into law, only four Australians have been charged and two area declarations made—al-Raqqa Province in Syria in 2014 and Mosul district in Iraq in 2018—both in relation to the now defeated Islamic State. The low number of prohibited areas declared using these powers reflect their judicious use, but their underlying potential to be abused or applied excessively remains. I note and accept the government's claim that the declared areas powers led to a reduction in Australians travelling overseas to fight for militant groups and a reduction in those returning. This law may have been effective and legitimate for that specific circumstance, but today not a single area declaration has been enforced for almost five years. The government argues, though, that retaining these powers is essential for ensuring rapid response time in the case of a hypothetical future conflict. Yet, if there is such a circumstance, legislation could be rapidly enacted. Indeed, in the term of this parliament, we have seen legislation tabled and passed within hours on occasion. In principle, therefore, I question whether a hypothetical is sufficient to justify laws that enable a minister to curtail the rights and freedoms of Australians at the stroke of a pen.

Based on the human rights framework of the International Covenant on Civil and Political Rights, in April this year, the Joint Parliamentary Committee on Human Rights reported that the provisions were 'likely to be incompatible with multiple human rights'. While national security can be used as a basis for curtailing civic freedoms, it is questionable whether an unspecified hypothetical future scenario is sufficient to meet this standard. The committee concluded that the declared areas provisions are potentially inconsistent with six human rights: right to equality and non-discrimination, right to a fair trial, freedom of movement, liberty, life and security of person.

The ICCPR guidance considers limitation on human rights to be justifiable where a 'legitimate objective' is substantiated. What legitimate objective is the basis on which the government proposes we vote on extending these powers today? The government owes the Australian people more rigorous substantiation than it has provided—an answer to why retaining the power for a minister to abruptly restrict our freedoms continues to be necessary. The potential for conflict is not a good enough one. Principle is important in politics, and, in principle, this standard has not been met.

Due to the sunset provisions of the 44th Parliament voted to enshrine in this law, the 45th, 46th and now the 47th have each been presented with the question of whether to extend the declared areas sunset clause another three years down the track. The member for Wannon and the member for Fisher have both articulated the need for a sunset clause. So I ask: What is our long-term strategy with this law? Do each of the major parties intend to simply continue to roll over that sunset clause into perpetuity? If the Minister for Foreign Affairs insists these powers are proportionate to our current threat environment, despite the noted views of the human rights committee and the Australian Human Rights Commission, then they should be tabled and established into permanency. The powers should be rightly subjected to parliamentary and public scrutiny to determine whether they are indeed legitimate and proportionate. Our current apparently bipartisan strategy of kicking the can down the road and waiting until it's a different government's problem amounts to poor legislative practice. In a parliamentary sitting week, in which we're also debating legislation that would strengthen the Australian Human Rights Commission, it occurs to me that we should probably start taking their advice seriously too.

With the above in mind, I also recognise the volatile and unpredictable security situation evolving in the Middle East. As the events following 7 October have shown, overseas conflict has the very real potential to aggravate tensions in Australian society. I have immense respect for the competence of our intelligent professionals and the advice they provide to government, particularly in cases where they judge it necessary to raise our national terrorism threat level, but, if there's a specific threat requiring legislative action, I would be more than prepared to consider it and give it the attention it deserves. In the 48th Parliament, the government must demonstrate greater integrity over this law that we are debating today, which, no doubt, will pass this and the other chamber. The Australian people must be given greater substantiation than we've been presented with. If the government has something to offer on that front, I would be more than willing to hear it.

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