Anne Aly (Cowan, Australian Labor Party) Share this | Link to this | Hansard source

[by video link] The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 allows the courts to make an extended supervision order for high-risk terrorist offenders that applies for up to three years upon their release from prison. As those who have spoken before me on this bill would have noted, there is already a provision for post-sentencing powers that currently exist in the form of the continuing detention order. Since that bill was introduced, such an order has been issued only once. This is a less restrictive measure, but it applies where the court considers there is a high degree of probability that an offender will commit a terrorist offence. Under this order, unlike the continuing detention order, an offender would be released into the community at the end of their custodial sentence and be subject to a range of restrictive measures.

I welcome this bill because all too often we have seen terrorist attacks being carried out by individuals who have already served a sentence for a terrorist offence or a terrorism related offence or who are known to security agencies. In November 2020, there was a terrorist attack in Vienna. That attack was carried out by an individual who had been previously sentenced to 22 months for trying to leave Vienna to join ISIS. He was known to police and he was known to security agencies across at least two countries. He was paroled after serving only eight months of his sentence, upon agreement that he would take part in a deradicalisation program. Despite being assessed as a high-risk terrorist offender and despite being assessed as still holding ideologies and still holding willingness and intent to commit a terrorist act, he was released from prison.

Among the PJCIS recommendations on this bill is a recommendation to include an independent review of risk assessment tools that evaluate the risk of reoffending or continued offending for terrorist actors. I especially welcome this recommendation, and I'm pleased to see that the government has accepted this recommendation and will commission the Department of Home Affairs to carry out an independent review. Further examination and analysis of the assessment tools we use in assessing the risk of a terrorist act is absolutely essential. The Austrian terror actor was also subject to the same risk assessment protocols that we use here in Australia. He scored highly on the risk measure of expressed willingness to commit a terrorist act, but he was released because he willingly participated or agreed to participate in a deradicalisation program. This case highlights the need for a comprehensive review of how risk is assessed and the extent to which risk is assessed here in Australia as well as across other countries that use assessment tools for high-risk terrorist offenders.

The bill before us today, I believe, is essential addition to the toolbox of agencies and ensuring community safety from terrorism, especially where there is no guarantee or absolute confidence that an individual has fully deradicalised and has the supports in place to remain deradicalised. The fact is that radicalisation and deradicalisation are not linear or discrete processes that can be assured through participation in a specific program or assessed with 100 per cent accuracy through the implementation of some kind of checklist or assessment tool. Radicalisation is not just a matter of individual psychology, and many of the terrorist psychologies and profiles that have been put forward in the past have been debunked purely and simply because they rely too much on the assessment of individuals' psychology.

Equally, my previous criticisms of both assessment tools and deradicalisation programs are based on their focus on individual psychology, with no appreciation or no appreciable assessment of the social context or other push-and-pull factors in both radicalisation and deradicalisation. You can look at risk as an equation—an equation that has on one axis intent or willingness to carry out an attack and on another axis opportunity to carry out an attack. What this bill does in the absence of any perfect methodology or close-to-perfect methodology for assessing intent is remove opportunity.

We also have here in Australia a dearth of the expertise that's needed to adequately assess and confidently evaluate the ongoing risk that a perpetrator poses to commit or further commit a terrorist attack. A report by the International Centre for Counter-Terrorism at The Hague, published in 2019, looked at the different assessment methods for high-risk terrorist offenders and concluded that there was a lack of evaluation of those tools, including the tool that is used here in Australia to assess high risk offenders. The other factor is that the tool can actually be completed without ever having to interview the individual in question. Other tools that are available such as the ERG22+, which use the same methodology as the tool used here in Australia, can be completed by more than one assessor and can do so to eliminate subjectivity and ensure the robustness of the methodology.

I welcome this legislation for a number of other reasons, not the least those that I have mentioned with regard to our capacity and the fact that we simply cannot with 100 per cent confidence assess whether or not a high-risk terrorist offender will continue to offend or will undertake to prepare or carry out another terrorist attack upon release from prison. I do welcome that the government has accepted most of the recommendations that the Parliamentary Joint Committee on Intelligence and Security put forward for this bill. I'm sure that the shadow Attorney-General has spoken at length about those recommendations and about the work that the Parliamentary Joint Committee on Intelligence and Security did on this bill and, in particular, on the recommendation about the condition imposed on those who become subject to the post sentencing powers included in this bill.

I'm particularly looking forward, as I mentioned earlier, to the review that will be commissioned around our risk-assessment tools, and I welcome that the government has accepted most of those recommendations put forward. But I should also mention the government's departure from the recommendations that were put forward in September 2017 by the former Independent National Security Legislation Monitor, Dr James Renwick, when he recommended the introduction of this extended supervision order regime. His recommendations were particularly around the standard of proof, recommending that it should be a high degree of probability and not on the balance of probabilities as provided for in the bill. I think it's important to make the point that the government has departed from the recommendation made by the PJCIS that we adopt in full the recommendations made by Dr Renwick in his review, including around the high degree of probability as the standard of proof for an extended supervision order.

In closing, I commend this bill to the House. I also take the opportunity to commend the PJCIS chair and deputy chair—now former deputy chair—on the work that was put into this bill, as well as the other members of the PJCIS and the PJCIS secretariat.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020. Keeping communities safe is one of the highest orders of government. One of our most important priorities as members of this place is to make sure that we keep our communities safe and free from harm. There are many threats which face our country. These are threats like the pandemic, which all of us have felt one way or another over the past two years. We face threats of climate change and the devastating impacts for our country. There are threats of poverty and violence. And, of course, there is the threat of terrorism. Terrorism poses a clear and substantial danger to the safety of our country and the wellbeing of our communities. Imposing smart, effective, proportionate policies to deal with the risk of terrorism and high-risk offenders should have been a priority of the Morrison government. It's disappointing that it has taken this long for the government to finally address this issue.

The bill before the House seeks to implement a recommendation made by the Independent National Security Legislation Monitor in 2017 to establish a federal extended supervision order regime. Under a supervision order an offender would be released from custody into the community at the end of their sentence but would be required to comply with prohibitions, restrictions and obligations that are, in the court's view, reasonably necessary and appropriate and adapted to protecting the community. The standard of proof that would apply to extended supervision orders would be on the balance of probabilities, as determined by the court, that that individual poses an unacceptable risk of committing serious terrorism offences. These extended supervision orders would allow for appropriate authorities to monitor those offenders deemed to be a high risk to the community.

At present, state and territory Supreme Courts are able to make only continuing detention orders, and Federal Courts are unable to issue such a detention order, instead being allowed to make only control orders. This has resulted in a situation in which the states are able to bring in only continuing detention orders if they deem that individuals still may pose a risk to the community after their sentence, as opposed to being able to implement control orders, which would be equally effective and less persuasive. Allowing the state courts to make extended supervision orders would provide an effective means of protecting our communities from offenders deemed to be a high risk, without the need for ongoing detention of offenders after their sentences have concluded. At present, it's only the federal courts that are able to make ongoing order controls for high-risk offenders. As such, the primary benefit of this bill is its capacity to address the current lack of interoperability between continuing detention orders and control orders such as the ongoing supervision that this bill proposes due to the different jurisdictions from which these orders must be sought. As such, this bill provides a greater array of tools with which the courts may be able to ensure the safety of our community with regard to high-risk terrorist offenders and ensures the proportionality of post sentence orders.

For issues that are complex, such as terrorism, it's essential that our state and federal courts have the greatest capacity possible to respond appropriately to those who may present a threat to this nation. We know that the threat of terrorism is real, and this bill has the capacity to significantly assist relevant jurisdictions in confronting and minimising the threat of terrorism to our country. But it is disappointing that after eight years in government the government is only now addressing such a substantial and concerning gap in the capacity of the courts to manage the risks associated with high-risk offenders. The procrastination of the Abbott, Turnbull and Morrison governments on issues such as this, which are of considerable concern to many Australians, is further evidence of the government's lack of urgency in addressing issues that are crucial to the safety of Australia. Australian safety, whether from COVID, future pandemics or indeed terrorism, should be treated as an issue of the highest priority to the federal government. Instead, as we've seen with so many issues that are important to the safety of this nation, the Morrison government has procrastinated on its responsibility to work in the best interests of Australians. It's always too little and always too late.

This bill is fundamentally about ensuring that we have proportionate legislation with which to protect our communities. We face many threats as a country, and as members of parliament it's our duty to legislate to fill those gaps within existing public policy that put Australians at risk. As I said, it's disappointing that it's taken eight long years for this government to address such a substantial issue. It's never been more clear that an Albanese Labor government is in the best interests of Australians—a government that puts the interests of Australians first and acts quickly on the issues that pose a risk to the safety of our communities. Throughout time we have seen terrorism both onshore and offshore that's impacted the lives of Australians. It's so important that we make sure that those who commit these heinous crimes are held responsible and that those who do their time and do their punishment are monitored to ensure that we look after the values that Australia holds so dearly.

But we need to know why. The government should explain why it's taken four years to get to this situation, after reports from its own supported committees have said there is a need for this and that we need to do it soon. The intelligence and security committee made those 11 unanimous and bipartisan recommendations. We know that most of those recommendations have been included in the bill and that the government broadly agrees with some of them. But we need to make sure they're all put in place. This is a paramount thing that we should be doing in this place—ensuring that our citizens are safe and our communities are stronger.

The bipartisan work of the intelligence and security committee is so important. It shows that this place can work properly. But there's always that extra step of making sure the executive branch of the government in this country follows through on those things. The importance of the committee's work can never be underestimated. That's why Labor is going to support this bill, and we support the government amendments to implement the unanimous and bipartisan recommendations of the PJCIS. What we are saying is that if the government fails to move the amendments to implement one or more of the unanimous and bipartisan positions of the PJCIS then an Albanese Labor government will commit to implementing those recommendations if we win the next election, because we're on the side of Australians. We want to look after their safety and we want to see this nation prosper, and that will happen only with a government that works in the national interest, not in its own interest. Thank you.

Pat Conaghan (Cowper, National Party) Share this | Link to this | Hansard source

I have said this before in this place but I believe it bears repeating: as Australians we need to appreciate that the peaceful freedoms we currently enjoy are not given; they are hard fought and hard won and have been actively and, for the most part, successfully protected in recent years via our current counterterrorism measures. However, just as in the ways our freedom can be threatened has evolved so, too, we have to evolve in the way we protect those freedoms. And I respect and applaud this government's continued dedication to this fair and reasonable evolution. It's worth noting that, over the past two years—and a previous speaker mentioned this—going through COVID, I think we've generally forgotten the dangers that present themselves in the terrorism sphere. They haven't gone away. They're still there and they're still plotting. Very sadly, we saw that in the UK, and my thoughts and prayers go out to Sir David's Amess's family. It's tragic. Quite often we might sit back and think that that's something that happens somewhere else. But it's not; it happens here in our own backyard.

This bill, the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, provides for the adaptation of the key counterterrorism powers; namely, the creation of extended supervision orders, or ESOs, and complementary amendments to the Telecommunications Legislation Amendment (International Production Order) Bill 2020 that will continue to ensure the safety and security of all Australians.

It is an uncomfortable fact that Australia's national terrorism threat level is 'probable'—which just reinforces what I've said about 'it is in our own backyard'—and it has remained as probable since 2014, despite the fantastic work that our security agencies have done. This means that, over the past seven years, there has been credible intelligence assessed by Australia's security agencies indicating that individuals and groups have not only the intent but also the capability to conduct a terrorist act in Australia. Over those seven years, 110 individuals have been charged as a result of 51 counterterrorism related investigations and there have been seven domestic attacks and 18 major counterterrorism disruption operations in response to potential attack planning within Australia—18. That's 18 times that our agencies have prevented death or injury on our streets—in our backyard.

But it's equally uncomfortable that there are 13 convicted terrorist offenders due to be released back into the Australian community following the expiry of their custodial sentence between now and 2025—13 people who have committed offences, been convicted of those offences and put in jail to be released back into our communities. These released offenders can be highly radicalised, motivated and capable of engaging in further offending or, perhaps more worrying, inspiring and engaging others to do so.

If we couple these uncomfortable truths with the role of technology in propagating violent extremist ideologies and the COVID-19 by-product of physical isolation increasing the access and reliance on technology for communication, it's not difficult to conclude that our current counterterrorism measures must be adapted in accordance with the risk that is currently posed to our nation. Unfortunately, we've seen that the rampant spread of misinformation during lockdowns and increasing unrest as a result of the government's measures imposed to fight the pandemic have provided extremists with fertile territory to exploit public fear and radicalise other vulnerable individuals. That is the cesspit of what we call social media and the dark web.

In essence, this bill is seeking to expand the available legislative implements that the Supreme Court and the AFP currently have at their disposal. There are currently two defined options for managing terrorist offenders. The first is continuing detention orders. A court may impose that a person remain detained where they pose an unacceptable risk to the community and where that risk cannot be addressed through less restrictive means. The second option is a controlled order, which places conditions on a person in the community.

It's worth noting that on a state or territory basis that's not an unusual thing. In a former life I acted for people sentenced to terms of imprisonment and the parole system allowed for restrictions or impositions on those people. That is effectively what we're doing here. It's not something new or something radical. It takes into account the offender's state of mind and the assessment of how the objective view of that offender rates. It should be noted that these orders are not tailored for the post-sentence context, as they allow for only a very limited and defined set of conditions and are issued by different courts to continuing detention orders.

The first key additions to the current options that this bill seeks to introduce are extended supervision orders, ESOs, and interim supervision orders, ISOs, to complement the current continuing detention orders. ESOs have been specifically devised to ensure that high-risk terrorist offenders can be appropriately managed in the community at the end of their custodial sentence. In essence, ESOs are more flexible and tailored in nature than a blanket CDO, ensuring that each of the conditions imposed on the offender is reasonable, necessary, appropriate and adaptive to address the risk to the community of the offender committing a serious terrorism offence. The Supreme Court may then issue an ESO for a period of three years. That can be reviewed if necessary at that time.

The bill sets out the general conditions that could form part of an ESO and these relate to restrictions of matters, such as the movement or travel of the offender; travel documents; licences; communications, particularly the use of telecommunications or precluding them from using telecommunications; education; and rehabilitation. One would think these things are appropriate and reasonable to impose on somebody who has been convicted of a serious criminal terrorism offence. In addition to those matters I just read out, ESOs have the ability to impose a number of prohibitions in relation to alcohol, drugs and weapons—which is very reasonable—and, most importantly, obtaining foreign or Australian travel documents.

If we put into context the amendments that this bill will bring about, for the 13 convicted offenders due to be released up till 2025 they are not, in my view, harsh or heavy-handed restrictions, particularly when we look at what's at stake—the safety of our nation and the safety of our citizens. Sadly, we saw attacks in New Zealand and the UK. It's good to see that there has been a bipartisan approach on the committee, despite some of the comments from the last speaker. Earlier today Dr Aly made a very good contribution to the bill.

In the context of the offenders' initial crimes, these measures are proportionate and necessary. The fact that, through an ESO, these restrictions and prohibitions can be tailored in direct response to the level of risk should be comfort to those who have some suspicions about the imposition on the civil rights of offenders who have served their time.

The bill also amends the international production orders regime, which was introduced in 2020, allowing for improved cross-border access to communications data for law enforcement agencies, and we have seen that work so effectively in recent months. These amendments will ensure that agencies are able to obtain international production orders for the purpose of monitoring compliance with the extended supervision orders.

In conclusion, I believe—and I will always say this—our country is worth protecting. I would ask any detractors of this important bill to ask themselves if they truly share that belief. The national terrorism threat level is 'probable', and it has been there for seven years. I applaud this government's determination and commitment to ensuring the ongoing safety of all Australians.

Vince Connelly (Stirling, Liberal Party) Share this | Link to this | Hansard source

The very first role of government is to protect the safety and security of its citizens. As hard as it is to believe, it is a fact that there are those who are opposed to our way of life, our freedom and our values. Amongst that cohort are those who have the intent and the capability to do us harm. It is against those threats which this deal, the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, is directly aimed. This bill will ensure that our agencies have the powers that they need to respond to the evolving threat of terrorism, and this reflects, in turn, our government's absolute and steadfast commitment to the ongoing safety and security of all Australians. In the current security environment, having a range of tools to combat the evolving nature of terrorism is absolutely vital. Indeed, experience overseas has demonstrated that the continuing threat posed by extremists, including those who have already served sentences for terrorism offences, is very real. The 2019 London Bridge attack and the 2020 Streatham attack in the UK were carried out by convicted offenders, highlighting the continued need for effective prevention and risk-management measures to protect our communities.

This bill enhances the safety and security of all Australians by creating extended supervision orders, or ESOs, and these will ensure that high-risk terrorist offenders can be appropriately managed in the community at the end of their custodial sentence. The Supreme Court will be able to impose an ESO for up to three years at a time if the court is satisfied, on the balance of probabilities and on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence. The court will be able to impose any condition on an offender that it considers proportionate to the risk that the offender poses. This bill also provides agencies with the necessary tools to monitor compliance with these orders and to protect sensitive national security information and ESO proceedings.

The Parliamentary Joint Committee on Intelligence and Security has considered the bill and made 11 recommendations, 10 of which will be accepted in whole, in part or in principle by the government. The bill will establish an extended supervision order scheme for high-risk terrorist offenders who continue to pose an unacceptable risk to the community at the expiration of their custodial sentences. Having people subject to ongoing constraints and even restrictions following the completion of their judicial sentence is not something that is done lightly. It is obviously a principle of fairness that we need to be very considerate and very cautious in our use of such provisions. But, as other speakers before me have pointed out, our first role is to protect the safety and security of Australian citizens. Where those risks are real and imminent, we must continue to act. This will ensure that such offenders are subject to close supervision in proportion to the level of risk that they pose to community safety. That hinges on the flexibility that will be enabled by this bill, which I touched on earlier.

Terrorist offenders are typically highly radicalised and often do not change their extremist views whilst in prison despite deradicalisation efforts. Such offenders continue to pose a high risk to the community following their release. Currently, there are two options for managing such offenders. The first is a continuing detention order under which a court may order that the person remain detained when they pose an unacceptable risk to the community and where that risk cannot be addressed through less restrictive measures. The second option is called a 'control order', and this allows conditions to be placed on a person whilst they are in the community. These orders, however, are not tailored for the post-sentence context as they allow only for a defined set of conditions and are issued by different courts to continuing detention orders. This then creates an issue of interoperability whereby the court considering an application for a continuing detention order is not able to impose conditions on the offender where it is not satisfied that a threshold for the continuing detention order is met. As identified by the Independent National Security Legislation Monitor, there is a need for a tailored option for managing the risk posed by offenders who are released into the community where a continuing detention order is not made.

By way of further overview of this bill, under an ESO the court may impose any conditions that it is satisfied are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. In creating ESOs the bill will broaden the range of measures available to address the risk of terrorism to the Australian community. The government has put in place robust legal frameworks to provide agencies with appropriate powers, including control orders, preventative detention orders and emergency stop, search and seizure powers. The Parliamentary Joint Committee on Intelligence and Security has recently reported following its consideration of these powers and recommended that they be continued. This bill will add further to that framework with a measure that addresses the specific risks posed by convicted terrorist offenders. As we've seen from the recent terror attack in New Zealand and similar attacks in the United Kingdom, convicted terrorist offenders can pose a very real risk to our communities. Protecting the community from such risk remains our government's highest priority.

There are of necessity some amendments that will be required to other related legislation, which I'll now touch on. The bill amends other legislation to support the effective implementation of the extended supervision order scheme. To ensure the compliance of an offender with the extended supervision order, the bill amends the Crimes Act 1914 to extend the existing regime of monitoring warrants for control orders to also include extended supervision orders and interim supervision orders. These amendments will allow law enforcement to monitor the compliance of an offender either with their consent or with a search warrant for their premises or person. Amendments to Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979 will allow law enforcement to obtain warrants for electronic surveillance to monitor compliance with supervision orders and inform the minister's decision as to whether to apply for post-sentence orders. The bill also amends the international production order regime, which was introduced through the Telecommunications Legislation Amendment (International Production Orders) Bill 2020, to allow for improved cross-border access to communications data for law enforcement agencies. These amendments will ensure that agencies are able to obtain international production orders for the purpose of monitoring compliance with extended supervision orders. The bill amends the National Security Information (Criminal and Civil Proceedings) Act 2004 to extend existing provisions which apply to control order proceedings, to allow the court to consider sensitive information in extended supervision order proceedings without that information being disclosed to the offender or their legal representative. This is important, because it will ensure that the process of applying for an extended supervision order does not inadvertently and harmfully reveal sensitive sources, which is of the utmost importance in custodial environments. To ensure that the offender receives a fair hearing, the bill extends the special advocate regime which is currently in place for control order proceedings. The bill expressly prohibits the court from considering court-only evidence in determining whether to make a continuing detention order, as is currently the case.

Since this bill was introduced, in September 2020, the government has considered potential issues which may arise in the practical application of control orders and continuing detention orders. The government amendments to the bill would address those issues by, firstly, clarifying how control orders and extended supervision orders operate when a person is subject to immigration detention and other forms of custody, and, secondly, providing that control orders and extended supervision orders are the only measures that may be considered by a state or territory Supreme Court when deciding whether there is a measure less restrictive than a CDO that would be effective in preventing the offender's unacceptable risk of committing a serious part 5.3 offence. These amendments are necessary to ensure that these orders are as effective as possible in addressing the risk posed by terrorist offenders.

The government amendments have been considered by the Parliamentary Joint Committee on Intelligence and Security. The government amendments also respond to recommendations made by the committee following its detailed consideration of the bill. The committee made a total of 11 recommendations, and the government has accepted 10 of those in part, in full or in principle. The bill, including the government amendments, has been approved by a majority of states and territories, in accordance with the Inter-Governmental Agreement on Counter-Terrorism Laws.

In conclusion: this bill ensures that our agencies have the powers they need to respond to the evolving threat of terrorism, whilst also reflecting the Morrison government's absolute and ongoing commitment to the preservation of the safety and security of all Australians.

Michael Sukkar (Deakin, Liberal Party, Assistant Treasurer) Share this | Link to this | Hansard source

I thank all members for their contributions to the debate on this very important bill, the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020. Protecting the community from terrorist threats is and will continue to be one of this government's highest priorities. With a number of convicted terrorist offenders due to complete their custodial sentences of imprisonment in the next five years, the need for effective risk management measures to keep our community safe is obviously greater than ever. This bill will therefore be an important addition to the government's response to protect the community and, of course, to protect Australians from the threat of terrorism. The extended supervision orders will complement and add to the existing tools available to manage high-risk terrorist offenders at the end of their custodial sentence.

This bill will also ensure that law enforcement agencies have access to appropriate warrants to monitor an offender's compliance with these orders while they are in the community. It will also ensure that sensitive national security information is protected when it is necessary to rely on that information when applying for an extended supervision order.

I would particularly like to thank all of my colleagues on the Parliamentary Joint Committee on Intelligence and Security, as well as senators, for their detailed consideration of this bill. I also want to thank colleagues across the parliament for recognising the need for these important changes. Again, the bill reflects the government's ongoing commitment to protecting Australians from the threat of terrorists and ensuring that our law enforcement and security agencies have all the powers they need to respond to the evolving threat of terrorism.

Question agreed to.

Bill read a second time.