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

by leave—I move Australian Greens amendments (7) to (15) on sheet 6181 together:

(7)    Schedule 1, item 35, page 11 (line 21), omit “would”, substitute “is intended to”.

(8)    Schedule 1, item 35, page 11 (line 25) to page 12 (line 6), omit subsections 80.2A(2) and (3), substitute:

        (3)    The fault element for paragraph (1)(c) is recklessness.

Note:   For recklessness, see section 5.4.

(9)    Schedule 1, item 35, page 12 (line 13), omit “subsection (2)”, substitute “subsection 290.1(1)”.

(10)  Schedule 1, item 35, page 12 (after line 6), after subsection 80.2A(3), insert:

     (3A)    It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

             (a)    in the development, performance, exhibition or distribution of an artistic work; or

             (b)    in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

             (c)    in the dissemination of news or current affairs.

Note:   A defendant bears an evidential burden in relation to a matter in subsection (3A). See subsection 13.3(3).

(11)  Schedule 1, item 35, page 12 (line 32), omit “would”, substitute “is intended to”.

(12)  Schedule 1, item 35, page 13 (lines 3 to 20), omit subsections 80.2B(2), (3) and (4), substitute:

        (3)    For the purposes of paragraph (1)(c), it is immaterial whether the targeted person actually is a member of the targeted group.

        (4)    The fault element for paragraph (1)(d) is recklessness.

Note:   For recklessness, see section 5.4.

(13)  Schedule 1, item 35, page 13 (line 27), omit “subsection (2)”, substitute “subsection 290.2(1)”.

(14)  Schedule 1, item 35, page 13 (after line 20), after subsection 80.2B(4), insert:

     (4A)    It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

             (a)    in the development, performance, exhibition or distribution of an artistic work; or

             (b)    in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

             (c)    in the dissemination of news or current affairs.

Note:   A defendant bears an evidential burden in relation to a matter in subsection (4A). See subsection 13.3(3).

(15)  Schedule 1, Part 2, page 14 (after line 5), at the end of the Part, add:

38  Before Part 9.1 of Chapter 9 of the Criminal Code

Insert:

Part 9.1A—Urging violence against groups in the community

290.1  Urging violence against groups in the community

        (1)    A person (the first person) commits an offence if:

             (a)    the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); and

             (b)    force or violence is reasonably likely to occur; and

             (c)    the targeted group is distinguished by race, nationality or national or ethnic origin.

Penalty:  Imprisonment for 5 years.

Note:   For intention, see section 5.2.

        (2)    The fault element for paragraph (1)(c) is recklessness.

Note:   For recklessness, see section 5.4.

        (3)    It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

             (a)    in the development, performance, exhibition or distribution of an artistic work; or

             (b)    in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

             (c)    in the dissemination of news or current affairs.

Note:   A defendant bears an evidential burden in relation to a matter in subsection (3). See subsection 13.3(3).

290.2  Urging violence against members of groups in the community

        (1)    A person (the first person) commits an offence if:

             (a)    the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person); and

             (b)    force or violence is reasonably likely to occur; and

             (c)    the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group); and

             (d)    the targeted group is distinguished by race, nationality or national or ethnic origin.

Penalty:  Imprisonment for 5 years.

Note:   For intention, see section 5.2.

        (2)    For the purposes of paragraph (1)(c), it is immaterial whether the targeted person actually is a member of the targeted group.

        (3)    The fault element for paragraph (1)(d) is recklessness.

Note:   For recklessness, see section 5.4.

        (4)    It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

             (a)    in the development, performance, exhibition or distribution of an artistic work; or

             (b)    in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

             (c)    in the dissemination of news or current affairs.

Note:   A defendant bears an evidential burden in relation to a matter in subsection (4). See subsection 13.3(3).

Question negatived.

by leave—I move Australian Greens amendments (17) to (20) on sheet 6181 together:

(17)  Schedule 2, page 15 (before line 8), before item 2, insert:

1A  Paragraphs 102.1(1A)(a) and (b) of the Criminal Code

Repeal the paragraphs, substitute:

             (a)    the organisation directly counsels or urges the doing of a terrorist act; or

             (b)    the organisation directly provides instruction on the doing of a terrorist act.

(18)  Schedule 2, item 2, page 15 (lines 8 and 9), omit the item, substitute:

2  Paragraph 102.1(1A)(c) of the Criminal Code

Repeal the paragraph.

(19)  Schedule 2, page 15 (after line 20), after item 4, insert:

4A  After subsection 102.1(2) of the Criminal Code

Insert:

  (2AA)    For the purposes of being satisfied on reasonable grounds under paragraph (2)(b) that an organisation advocates the doing of a terrorist act, the Minister must have regard to whether:

             (a)    the person advocating a terrorist act is the leader of the organisation;

             (b)    the advocacy is in any official material distributed by the organisation;

             (c)    the advocacy is accepted or rejected by other members of the organisation as representing the views of the organisation;

             (d)    the organisation has any other involvement in terrorism;

             (e)    the person advocating terrorism did not intend for a terrorist act to be committed.

(20)  Schedule 2, page 15 (after line 20), after item 4, insert:

4B  After section 102.1 of the Criminal Code

Insert:

102.1AA  Review by the Administrative Appeals Tribunal

        (1)    An application may be made to the Administrative Appeals Tribunal for review of a decision to specify an organisation by regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1.

        (2)    The regulations may prescribe the procedures to be followed by the Tribunal in considering an application under subsection (1).

Under section 102.1 of the Criminal Code the government may proscribe a certain organisation as a terrorist organisation. As drafted by the government, the bill extends this proscription period for such organisations from two to three years. We do not oppose this amendment in principle but we do believe that it should be subject to important safeguards.

Being proscribed as a terrorist organisation carries serious repercussions for the organisation, its members and outsiders for good reason. For example, the offences for being a member of a terrorist organisation, supporting a terrorist organisation and receiving training from or providing training to a terrorist organisation carry penalties ranging from 10 years to life imprisonment.

Due to the serious repercussions that flow from being proscribed, as well as the extension of the proscription period, we believe this power should be counterbalanced to ensure that the process is accountable. It is not to undermine the process where we do proscribe such organisations, but just to be very aware of the very serious nature of the offences that arise once you have been proscribed. We believe there need to be some checks and balances in the system to ensure that we are, in fact, correctly targeting the kinds of organisations that most Australians would find repugnant but that we are not catching innocent groups or innocent people up in the net.

For this reason, we believe that there should be an opportunity for organisations that are proscribed as terrorist organisations to appeal the merits of the decision under the Administrative Appeals Tribunal Act 1975. I do not think that this is necessarily going to be a live issue for most of the groups that we are probably contemplating—those that most people consider from reports in the media to be terrorist organisations. But I want to consider, perhaps, how we may have treated an organisation supporting the ANC during the anti-apartheid movement in South Africa, or even—to pick an example closer to home—the activities of Fretilin and the activities of people in Timor who, at the time, were conducting an armed resistance against a government that the Australian government considered lawful. Quite reasonably we could have considered people supporting Timorese freedom fighters in Timor-Leste as terrorists and they could therefore have been proscribed, and this range of offences could have been activated. We believe that, effectively, it is very important to take care, given that sometimes a situation probably does seem very black-and-white but that there are very serious shades of grey.

In regard to the grounds for the proscription of a terrorist organisation, we believe that the bill’s amendment to section 102(1A) of the code is an improvement as it clarifies that the organisation may only be listed if it directly praises the doing of a terrorist act in circumstances where there is a substantial risk of leading a person, regardless of their age or their mental impairment, to engage in a terrorist act. So there is some improvement and, we believe, some tightening to the definitions that has occurred here. But it is our view that this minor amendment does not go far enough as the definition of ‘advocates’ in that same section 102.1(1A) is too broad and may restrict legitimate political dissent and therefore be in breach of Australia’s obligations under article 19 of the ICCPR to ensure that right to freedom of expression.

Under subsection 102.1(2)(b) an organisation may be listed as a terrorist organisation if he or she is satisfied that the organisation ‘advocates the doing of a terrorist act’. We believe that proscribing an organisation on the basis that it advocates the doing of a terrorist act is very wide and goes beyond the usual criminalisation of incitement to commit a criminal act. It is also potentially in breach, as I have said, of article 19 of the ICCPR which protects freedom to express legitimate political views. If advocacy is to remain as a ground for proscribing terrorist organisations—and the government clearly believes that it should—then this should be narrowed, we believe, in two ways. Firstly, in subsections (a) and (b) of the definition remove the term ‘indirectly’ so that only directly counselling, urging or instructing terrorist acts to occur attracts criminal liability. I think that would be an appropriate redrawing of that boundary. Secondly, subsection (c) of the definition, which relates to the praising of a terrorist act, should be repealed as such an act is too tenuous a link with the actual committal of a terrorism offence. This would implement recommendation 9 of the Sheller report.

Finally, if advocating the doing of a terrorist act is to remain a criminal offence, there is a need to clarify situations in which an individual or a small group of individuals within a group advocate the doing of such an act as opposed to the organisation as a whole which may favour non-violent means to have their message heard. To provide some concrete examples, there is real concern that proscribing an organisation that advocates the doing of such an act may result in the proscription, for example, of an organisation where the person who praised the act is not the leader of the group or organisation, the statement is not an official material distributed by the organisation, the statement is not accepted or may even, in fact, have been rejected by other members as representing the views of the group, the organisation may have no involvement or no other involvement in terrorism and the person praising such acts did not intend for an act to be committed. Adding to this concern are statements in the EM that advocates include all type of communication, commentary and conduct. Part of the amendments that we are putting to you go to that ability for review and the ability for a group to make its case. If that appeal is not accepted then so be it, but we believe, as I stated at the outset for the reasons there, that people who would find themselves within a proscribed group and who face a very serious range of potential surveillance and so on and potentially very serious imprisonment should at least have the right of appeal if this group finds itself on the proscription list, particularly if we are extending the period from two to three years. I commend these amendments (17) to (20) to the Senate.