Scott Ludlam (WA, Australian Greens) Share this | Hansard source

by leave—I move Greens amendments (1) to (6) on sheet 6181 to the National Security Legislation Amendment Bill 2010 together:

(1)    Schedule 1, item 15, page 6 (line 1), after “will”, insert “directly and”.

(2)    Schedule 1, item 15, page 6 (line 3), after “conduct”, insert “directly and materially”.

(3)    Schedule 1, item 15, page 6 (line 30), after “will”, insert “directly and”.

(4)    Schedule 1, item 15, page 6 (line 33), after “conduct”, insert “directly and materially”.

(5)    Schedule 1, item 15, page 7 (line 12), at the end of the heading to subsection 80.1AA(6), add “and conscientious objection”.

(6)    Schedule 1, item 15, page 7 (line 14), after “purposes of,”, insert “conscientious objection or”.

I will speak briefly on the intention of these amendments and then I will seek guidance from the government, or perhaps the opposition, about whether they would like to reconsider their views once they have had some time to absorb what it is that the Greens are proposing. We do support as a whole the amendments proposed by this bill that relate to the offence of assisting enemies at war with the Commonwealth, as it is stated, and assisting countries and so on engaged in armed hostilities with the Commonwealth in proposed section 80.1AA(1)(d) of the Criminal Code. The offences will be narrowed by this bill by the inclusion of the word ‘materially’ prior to ‘assist’ to ensure, as is stated in the explanatory memorandum that the government provided, that only assistance that is real or concrete will be criminalised, which we think is at least a move in the right direction.

We believe, however, that the provision remains too broad because, as stated by the Parliamentary Joint Committee on Intelligence and Security:

… given the seriousness and penalties attached to the offence it is crucial that the law achieves the highest degree of certainty.

This is a theme that I will return to a couple of times this afternoon. Because these offences relate to behaviours that are so serious and contain such risk to life and limb, they attract enormous penalties indeed, so it is very important that we narrow the terms of application to only apply to the kinds of behaviour we intend them to apply to. In this case, I think it is best that we make sure we are speaking very specifically. Certainty is required to ensure that the offence of treason does not impact on the right to freedom of expression, which is contained in article 19 of the International Covenant on Civil and Political Rights. Again I return to one of the themes I will revisit probably during every single one of these proposed batches of amendments, which is that we are not seeking to be soft on terror or on the people who are promoting political violence in our community. We are instead trying to make sure that the law is aimed where it is intended to go and that we do not inadvertently catch political free speech by mistake.

Certainty and a very high threshold are required for this offence, as a maximum penalty is life imprisonment and this could be applied anywhere. So we also support the amendment in section 80.1AA(1)(f), which requires that a person only be found guilty of the offence if they have an allegiance to Australia, which is common sense. But we do question the continuing necessity of this provision, considering that no-one has ever been charged with treason under this legislation. If the government is able to contradict that, I would be fascinated to hear it. This legislation has actually never been used. These sections have never been deployed. No-one has been charged with treason since the 1940s. So, in taking a pragmatic approach and knowing that the offence will most likely remain on the statute books, it could certainly be improved by the following two amendments.

The inclusion of material assistance is, as I said before, a positive amendment, but we do not think it goes far enough and it may still criminalise innocent behaviour, such as that of conscientious objectors and peace activists. I would like to draw the minister’s attention to an incident that occurred in the months leading up to the Iraq war, which was found to be illegal by a large number of international lawyers—and international legal opinion is solidly on the side that in fact we participated in an invasion that was illegal under international law. That notwithstanding, I presume senators can remember a number of Greenpeace activists who swam out to a warship as it was leaving Sydney Harbour and attempted to delay it. I wonder whether the minister would like to give us an idea as to whether she thinks this would be construed as providing material support to an enemy, because on a black-and-white reading of the legislation it would.

If you prevent a warship from leaving harbour on its way to a war, then perhaps you have provided material support to an enemy. I do not believe it is the government’s intention to criminalise this kind of behaviour. I do not think this government, or the previous government, sought to level charges of terrorism against those people in the water. Obviously no violent intent was expressed by those campaigners. They were simply expressing the opinion that was held by the majority of Australians at that time and taking their activities to Sydney Harbour. But on a black-and-white reading of the law, you would have to say that it could be construed as material support to an enemy. So my first question to you, Minister McLucas—and to Senator Parry, if he is offering opinions on behalf of the opposition—is: is it intended to be drafted in this way? Could we not tighten the definitions to make it absolutely clear that we are not seeking to criminalise this type of activity or have it fall into the net of a ‘terror offence’ for which the maximum imprisonment is life?

In its current form it is not clear to the public what type of conduct will be criminalised by this provision; therefore, we believe, as has been proposed by the Castan Centre for Human Rights Law, that only material assistance which is ‘direct’—that is the word we are seeking to insert here—should in fact be criminalised. This will ensure that those who provide weapons, funds and intelligence—and who are therefore directly assisting enemies of the Commonwealth or those at war with the Commonwealth—will in fact be culpable and will be caught under this provision, which I believe is what the government drafters intended. Therefore, we propose that the word ‘direct’ be inserted, and you will see that proposed amendments (1) through (4) go some way towards doing that.

Finally, material assistance whilst forming part of the fault element in this section does not form part of the physical element of the offence in section 80.1AA(e). This is interesting considering the ALRC report Fighting words: a review of sedition laws in Australiawhich I am sure senators in this debate would be very familiar with—recommended that material assistance form part of the physical element of the offence but not part of the fault element of the offence. We believe material assistance should be a requirement for both elements, particularly considering the potential penalty of life imprisonment. We therefore propose ‘directly and materially’ be inserted prior to section 80.1AA(e).

I will leave my comments there and hopefully the minister will enlighten us as to whether she believes that narrowing the definitions in this way, particularly by inserting the word ‘direct’ or ‘directly’ as far as material assistance is concerned, is acceptable to the parliament. I commend amendments (1) through (6) to the Senate.