Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to 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.

James Stevens (Sturt, Liberal Party) Share this | Link to this | Hansard source

I rise to support the second reading of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 and I thank those who have contributed so far. The shadow Attorney-General gave a selective history of the Labor Party's interaction with the national security services in this country, talking about the events of 1986 but forgetting the events of 1973 when the Whitlam government's Attorney-General Lionel Murphy undertook his famous oversight of ASIO by arriving unannounced and potentially inebriated at their headquarters in Melbourne. I add that to the record when we're talk about Labor and their respect—or, potentially, lack thereof—for the security services in this country.

This is a very important amendment, and it has been recommended by the Independent National Security Legislation Monitor, to create a new category of dealing with high-risk terrorist offenders after they've completed the sentence for the crime that they've been convicted of in court. There is a comparable regime to the one that we're expanding here, which is, unfortunately, that we which we need to have in place for the most vile and disgusting people that walk the earth—that is, those who commit the sexual abuse of children. In the state and territory jurisdictions, even when someone has been convicted of a crime and has done their time for things such as sexual abuse, and particularly child sexual abuse, there is a very high expectation in many of those cases that that person is likely to offend again, and, if we simply release them into the community because they've finished their custodial sentence, we are not prepared to live in a society where someone might offend again because we didn't have a structure or a regime in place to protect against future abuse of children.

This, much like that regime, gives us another power—another tool in the toolkit—to deal with people who have been convicted of terrorism offences. They've served their time, but a court may nonetheless determine that they still pose a risk of committing a future terrorist act. Indeed, the previous speaker mentioned that a similar regime to this has operated quite successfully in the United Kingdom for two decades. We are learning some good lessons from what they've put in place there and we're seeking to do that here. We are creating an additional ability to deal with these people.

At the moment we can have a continuing detention order, where it is possible to keep people in a custodial environment if the burdens within that application to a state or territory Supreme Court can be met—that is, to say that a person should not be released back to the community. It may be they have completed a custodial sentence but they are such a risk and meet the burden required that they should continue to be kept incarcerated. A continuing detention order is something that is already in place. It is obviously significant to have to keep someone detained despite the fact that they've served their time for the crime that they have been convicted of. Some of the most ancient fundamentals of our system speak against that principle. That's why there needs to be a very high threshold and a very significant need to keep someone incarcerated beyond the service of the sentence that's been given to them through the appropriate processes of our criminal justice system.

Currently, after release, you can apply for a control order over someone who is a high-risk convicted terrorist offender who has finished their custodial sentence. It is interesting—and this is part of why we are undertaking this amendment—that it is through the supreme courts of the state and territories that you apply for the continuing detention order but that you have to go to the Federal Court to get a control order. That's the crux of what we're achieving by introducing these extended supervision orders in this legislation. It's to address that gap. Say someone in my home state of South Australia had been convicted of a terrorism offence. They might have been given a 10 or 15 year sentence. When they come to the end of that period, having served their sentence, they are eligible to be released. At the moment, the AFP can apply to the Supreme Court of South Australia for a continuing detention order and meet the burdens required to have that granted, or not, but it can only make a decision on that application and either grant it or not. Separate to that, you can go to the Federal Court and seek some form of control order to be put in place on that person. There's no interactivity when you're making an application for a continued detention order for anything other than that to be considered, and then, equally, the fallback position is the control order.

We're essentially putting something in between those two systems by creating this concept of an extended supervision order. That means that the Supreme Court, which will have jurisdiction over these extended supervision orders, will have the ability to determine applications. It might be that the application is for a continuing detention order but that the Supreme Court feels that, whilst the standard for that has not been met, the standard for an extended supervision order has been met. An extended supervision order is much more far-reaching than a control order. As some of the other amendments that are part of the bill set out, an extended supervision order will provide the ability to undertake surveillance and certain other measures to keep an eye on people who are potentially radicalised and who, where it has been demonstrated in the Supreme Court, pose a high risk of reoffending.

To briefly digress, I think it is poignant that we are debating this in the aftermath of the horrendous action in the United Kingdom on the weekend, which may well be proven in the courts to have been a terrorist attack, against a fellow member of parliament, Sir David Amess. It reinforces to us that terrorism is unfortunately still with us and that the risks are very significant and ongoing. As lawmakers, we must always be looking for opportunities to do all we can to protect innocent Australians from the horrors of terrorism. We've had terrorist acts in this country and we've seen awful terrorist attacks across the planet. Unfortunately we have this risk in this country. We have successfully prosecuted people in this country under the terrorist offences legislation in the Criminal Code. That's why we need to do this, unfortunately. There are people who are going to be entering this category of completing their custodial sentence for having been convicted of a terrorist offence, and those people may well still be radicalised and pose a significant threat of undertaking a future terrorist attack. Whether it's in this country or not is immaterial. We need a judicial system that is flexible enough to deal with that risk. No-one will thank anyone in this parliament if we don't make these necessary reforms, which have been recommended by the Independent National Security Legislation Monitor, and then someone who could have been captured by this measure subsequently offends and, in the worst case, we see loss of life when Australian citizens become victims of a future terrorist attack that could have been prevented.

There is one other element—and it may well come up in other contributions—that I think is important to address. I know that some stakeholders have concerns about evidence for these applications being used in a confidential way and not given to the subject of a proposed extended supervision order or their legal counsel. It's really important that we think about why it would be necessary to keep that evidence confidential, with access given purely to the court officers who are making the determination and not to the convicted offender who is the subject of the application order. You can imagine that the Australian Federal Police are capable of collecting a whole range of information, the confidentiality of which is vital to their ongoing activities when it comes to counterterrorism. And you can imagine that the Australian Federal Police would be conflicted as to the value of using the evidence they have obtained in a way that is revealed to a convicted terrorist—that is, if the person were told that the AFP had obtained this information. It might be recorded telephone conversations, it might be emails or it might be information from some of the other technological platforms that people are using to interact, communicate and collaborate for the purpose of criminal activity. If the AFP obtains information relevant to an application for an extended supervision order, it is equally the case that if that information has to be provided to the person who is the subject of the application then it effectively gives that person the ability to warn their associates and other people that the AFP is in possession of the information. That could compromise a whole range of other things that the AFP is seeking to do with information, including ongoing criminal investigations and surveillance.

The last thing we want is to put the AFP in a position where potentially they have to decide to withhold something relevant to granting an extended supervision order because they don't want to jeopardise other operations they're in the middle of or put informants at risk. You can imagine that, when it comes to seeking these extended supervision orders, a lucrative source of information the AFP might use is informants who have been serving custodial sentences alongside the person who is the subject of the application order—and so on and so forth.

I think it's very important to rebut that point from some civil liberties and legal groups—and I'm not suggesting I've heard any contributions in this chamber to that effect. I understand why these groups always make sure they stand up for those rights, but in my contribution I want to make it clear that I reject that concern. I think it's vitally important that all the relevant information is known to those making the decision about whether or not to issue an extended supervision order. It's equally important that the AFP isn't compelled to reveal that information to others. Doing so might jeopardise other operations of the Federal Police and/or mean the AFP withhold that information for the very same reason—that is, they don't want to jeopardise other operations—and we see the wrong decision made on an extended supervision order because all the information to make the determination wasn't provided.

With that, I'd like to commend the Attorney-General and all those who have been involved in putting this bill together, and I thank the Independent National Security Legislation Monitor. I think this is a really good example of the kinds of important and necessary reform propositions that are brought forward to government from that mechanism. I think it is going to put the Federal Police in a position to do an even better job than the already sensational and excellent job they do in fighting terrorism, protecting our community and keeping us safe. This is the sort of additional mechanism they need. We should give it to them, and we can do that by supporting this bill. I commend the bill to the House.

Andrew Wallace (Fisher, Liberal Party) Share this | Link to this | Hansard source

On 29 November 2019 two University of Cambridge academics opened a conference in London to celebrate the anniversary of the program they had created in partnership. They called it Learning Together. For five years the program had helped released prisoners to get an education and escape a life of crime. Just after lunch, following an uneventful morning, a man entered Fishmongers' Hall, where delegates were gathered, shouting threats that he would blow up the building in the name of his religion. Drawing two knives from his sleeves, he began to indiscriminately stab innocent people. In a scene reminiscent of a Hollywood movie but, tragically, all too real, delegates at the conference grabbed decorative historical weapons from the walls in a desperate attempt to defend themselves. Soon, driven out into the street, the man began attacking passers-by on London Bridge. It took the courageous actions of a plain-clothes police officer and a Ministry of Justice public servant, as well as the swift response of the City of London Police, to end the senseless violence. In just five minutes two young people in the prime of their lives had been killed and another three seriously wounded.

Perhaps the most striking thing about this incident is that the perpetrator of this barbarous act of terrorism was not an unknown assailant but an invited and accredited delegate at the conference. He was not a newly radicalised young man or an individual suffering from a bout of serious mental health. Usman Khan was a known and convicted terrorist. The Metropolitan Police's Counter Terrorism Command and the Security Service had files on him. Nine years earlier Mr Khan had been part of a very serious but, thankfully, unsuccessful al-Qaeda plot to bomb the London Stock Exchange, less than a mile from London Bridge. In 2018 he'd been released from prison and on the morning of the attack had been given additional permission to travel to the city to take part in the day's events as a former participant of the program. He took that opportunity to fulfil the violent intention he had formed a decade earlier. Unfortunately this has not been the only case of convicted terrorists going on to commit further acts of terror after their release. Just last year another convicted offender, Sudesh Mamoor Faraz Amman, left a man and woman in a life-threatening condition after stabbing them on Streatham High Road in East London only weeks after his release from prison.

Here in Australia, this is an issue that we will increasingly need to face up to. We are far from immune. In September we saw the sentencing of three men for planning to undertake a terrorist attack in Melbourne. I remember this very distinctly, because I was in Melbourne, only a few hundred metres away from where the event was planned to take place, and I was there on that day. Each of these men has been convicted with a sentence of 10 years in prison. We need to think about what will happen when they and many others who have already been convicted of these kinds of crimes come up for parole.

Terrorism is a unique offence. It is not committed for personal gain or from animosity against a particular victim. Rather, its target is an entire civilisation, and as such its motive does not end with the commission of the crime. Our justice system is, rightly, built on the premise that offenders can be rehabilitated and that once they have completed their allocated punishment they return to membership of our society. However, when the ongoing aim of an offender may be the wholesale destruction of that society, unique measures are required to prevent the kinds of horrifying results that we've seen in London over the past two years

In Australia, a state or territory supreme court currently has only one option when approached to help prevent those who remain a threat to our way of life from leaving prison and committing a further act of terror. That is the continuing detention order. In short, at the court's discretion, the convicted terrorist is kept in prison until they are no longer considered a risk to society. In a free country, this is a very grave measure. It must be used only in cases where an individual poses a very serious and ongoing risk. Rightly, it requires a high burden of proof to be imposed. However, at present, if a state or territory supreme court identifies that a convicted terrorist poses a less definite risk, their only alternative is to release that individual into our community with only the usual requirements of a person on parole. It is a high degree of trust on the part of our community to place on individuals who have already acted on their ideological desire to harm us.

The events in London in recent years show us that, in many cases, it is not a risk that we can afford to take. Currently, in these cases, only the Federal Court or Federal Circuit Court can offer a solution. A different applicant must make a separate application to one of these courts under a different standard of proof for the same offender to be subject to a control order. These control orders can stop a person from visiting certain locations, communicating with fellow terrorists or owning and using certain equipment. They can ensure that a person wears a tracking device or obeys a curfew. Such control orders can be an effective deterrent. However, as the Independent National Security Legislation Monitor found, it is not in the interests of applicants, the courts or the offender to run parallel systems in this way. It creates duplication in effort for law enforcement, significantly increases the costs involved and requires those who are the subject of these orders to go through multiple separate court proceedings. What is needed is an equivalent set of restrictions which can be imposed on the past offender in the community by state and territory supreme courts as an alternative to a continuing detention order where appropriate, and this is what the bill delivers.

The bill establishes an extended supervision order, or ESO, scheme for high-risk terrorist offenders. It will allow state and territory supreme courts to impose any prohibitions, restrictions or obligations on high-risk terrorist offenders upon their release which the court is satisfied on the balance of probabilities are necessary to protect the public. It will mean that these courts have available an alternative to ongoing detention and with a lower burden of proof to reflect the less restrictive measures being imposed. These orders will be tailored to the particular risks posed by each offender, and the court will be able to gather expert assessments from psychologists and other practitioners to understand those risks more fully. The ESO will prevent the doubling-up that is required under the current system and ensure that terrorism offenders can be given a just opportunity to reintegrate into society while the public have protection from the most likely risks of possible further attacks. Under this bill, the ESOs will last up to three years. However, they can be extended if the offender continues to pose a risk to the community and can be modified if circumstances change. Equally, the court will be required to review these orders annually or whenever the Minister for Home Affairs applies for such a review. This will ensure ESOs remain appropriate and necessary for both the offender and the community.

With the global natural disaster of COVID-19 unfolding around us, it is fair to say that many Australians have ceased to think about the threat posed by international terrorism. However, the tragic events of the past few months in Afghanistan as well as the dreadful murder of UK member of parliament Sir David Amess in recent days are stark wake-up calls. Though the international community must do our very best to ensure that Afghanistan is never again used as a training base for international terrorists, we must also be alive to the fact that those who would seek to do us harm in the promotion of their radical ideologies can come from anywhere. We must be constantly vigilant. Since September 2014, 139 people have been charged as a result of 67 counterterrorism related operations around Australia. Some of these people will re-enter our society and make a positive contribution and some won't. The unfortunate reality is that that threat may remain for a long time to come, and it will be difficult to tell the difference between the two. We need to ensure that we have a system that caters for every level of threat flexibly and efficiently. That is what this bill will do, and I commend it to the House.

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

Order! The debate is interrupted in accordance with standing order 43. The debate may resume at a later hour.