David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I rise to speak against the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. I do so because I do not believe that the bill is urgent or even necessary and also because it contains measures that, like the previous national security legislation, erode our rights and freedoms. It is somehow fitting that this chamber is close to empty because it reminds us of Edmund Burke's observation that bad things happen when good people do nothing.

Last week, the government snapped to attention in response to video threats made by a 17-year-old jihadist from Bankstown. I then attracted some attention when I used some mildly unparliamentary language to describe him. I stand by that description. And, for that and other reasons, I do not believe there is any reason to give security agencies additional powers to prevent those like him from causing harm.

We have heard constant claims that we are now operating in a changed security environment where Australia is under threat. Because Daesh is enjoying success in Iraq and Syria, and a sympathiser has perpetrated an atrocity in Canada, the argument goes, we should all be hiding under the doona and giving ASIO and the AFP additional powers to protect us. I say that is not so. This bill has nothing to do with defeating Daesh in Syria or Iraq, and it will not keep us safer here in Australia.

The Attorney-General says that the number of Australians presently involved in the conflict in Syria and Iraq is unparalleled. According to his figures, 160 Australians are currently supporting or fighting with extremist groups. And yet 66 Australians fought in the Spanish Civil War. As a percentage of the Australian population in 1936, more Australians thought helping communists or fascists was a good thing than are currently supporting jihadists. Young men with a thirst for action and too much time on their hands have long joined gangs and become entangled with organised crime. These days—at least for a few—it seems violent religion provides an alternative outlet.

Then there is the basic reality that the government already has substantial powers on the books to deal with any terrorist threat. Apart from the fact—as Bret Walker SC often points out—that violence and conspiracy to commit violence have always been crimes, Australia's security agencies have extensive surveillance capacities. They can, for example, obtain data preservation orders that ensure metadata is retained and an individual's activities on the internet can be examined. They can obtain warrants to intercept phone calls. People can be held and compelled to answer questions. Preventive detention orders and control orders, without any crime having been committed, stop people leaving their homes if it is suspected that they might commit a crime in the future. Passports can be cancelled. Some of these powers are so over the top they are already incompatible with a liberal democracy. No case has been made for the need to add to them. In Australia, lightning kills five to 10 people each year; this does not mean our security agencies should have the right to enter our houses to check on us or imprison those who would walk around during storms.

People have pointed out that Daesh makes sophisticated use of social media and videos deliberately aimed at the young. 'Wouldn't it be better,' I have been asked, 'if watching those videos were made illegal? Wouldn't it be good if we could legislate Hizb ut-Tahrir out of existence?' I have formed the view that the new offence of advocating terrorism, which can be committed by both individuals and organisations, is present in this bill purely to get at Hizb ut-Tahrir and any others like it. It does this in two ways. First, it defines advocacy so as to include the promotion of terrorism. This is broad enough to take in a general statement endorsing revolutionary violence with no particular audience in mind. Second, the offence is drafted in such a way that it requires only that the individual or organisation be reckless as to whether the words in question will cause another person to engage in terrorism. At common law, incitement has always required the element of intent, whereas promotion goes beyond the requirement—also present in incitement—that words ought to act directly on their intended audience.

Last week, I looked at Hizb ut-Tahrir Australia's website. Of course, ASIO probably already know what we do on our parliamentary computers, but I am letting senators know because it was actually an enlightening experience. Hizb ut-Tahrir, like Daesh, supports a global Islamic caliphate. It seeks the imposition of sharia, including the hudud ordinances. These take in nasties such as stoning people to death for apostasy and adultery. It is difficult to avoid the imputation that, given a choice, Hizb ut-Tahrir would prefer Daesh to the Commonwealth of Australia. The issue, of course, is that making Hizb ut-Tahrir illegal will not stop Daesh's videos being made or distributed or watched. In fact, they are likely to acquire a sort of weird cachet from their very illegality. Lots of youngsters, when adults in authority tell them not to do something, immediately go out and do the opposite. This phenomenon is not confined to Muslims. What proscription and listing as a terrorist organisation will achieve when it comes to Hizb ut-Tahrir is to drive the organisation underground.

I like the fact that I can read Hizb ut-Tahrir's website. I like the fact that one of their obnoxious spokesmen turned up on Lateline and revealed to all and sundry just how uncomfortable he is around independent, educated women. I also like the fact that their public presence exposes them to ongoing scrutiny and forces them to speak, not fight. Sunlight is indeed the best disinfectant. It may be possible to legislate bodies like Hizb ut-Tahrir out of existence but not the sentiments it represents.

Thanks to the alleged urgency and necessity of this bill, the Parliamentary Joint Committee on Intelligence and Security was forced to come up with something approaching a review in a fortnight. Labor, of course, is being its usual supine self on national security—although, to be fair, the recommendations made by the committee are all sound. There is only one problem: they are like putting a bandaid on cancer. Yes, it would be nice to have words like 'encourage', 'promote' and 'advocate' defined with clarity—or at all. It would also be good if the foreign minister could not simply declare entire countries off limits. I agree that the idea of 'subverting society' needs work. But it clearly has not occurred to the Attorney-General that some countries and societies actually make good candidates for subverting: Zimbabwe, for example, or North Korea. I am happy to say that I support the overthrow of Kim Jong-un and Robert Mugabe, and I would not mind if there was a bit of advocating terrorism to achieve that. What does that make me? Even better are the proposals to reel in the lengthy sunset clauses for PDOs and control orders. Instead of 2025 or 2026, they will stay on the books for a mere two years after the next federal election—about four years, then, give or take. Mind you, that is still a long time for bad law to hang around.

Then there is the recommendation, when it comes to unauthorised disclosure of delayed notification search warrants, to take the public interest into account. However, as with the previous national security legislation, this safeguard will only go into the explanatory memorandum, not the bill itself. I may have slept through some of my lectures in law school but I remember enough to know that a court only takes the explanatory memorandum into account when the words of the statute are unclear. And the words in this bill are perfectly clear.

These kinds of laws will effectively turn our security agencies into various versions of secret police. Last week, News Corp's Lachlan Murdoch criticised the attack on freedom of speech that sailed through this place with the support of both major parties in relation to special intelligence operations—laws that could see journalists jailed up to 10 years if they disclose information about them. This bill seeks to prevent so-called 'delayed notification warrants' from being disclosed. We are talking about a warrant. One assumes that Lachlan Murdoch will one day be at News Corp's helm. The way things are going, there will be nothing for his journalists to report aside from the colour of Kim Kardashian's knickers.

Even with the acceptance of all the recommendations of the Parliamentary Joint Committee on Intelligence and Security, we are still left with a bill that enables the foreign minister to declare large swathes of territory no-go areas, allows the AFP to conduct searches without telling anyone about them for up to 12 months, places further constraints on the ability of Australians to speak freely, engages in extraterritorial overreach, and tells journalists they must go to the Inspector-General of Intelligence and Security if they come across misconduct rather than reporting to the wider public in the normal way.

Mr Abbott tells us that the 'delicate balance' between freedom and security will have to shift 'for some time to come' in light of the heightened terror risk. What he fails to realise in enacting laws like this one and the national security legislation is that he is curtailing the very liberties that distinguish free countries like Australia. Australia has the rule of law, procedural fairness, the presumption of innocence, free speech and a free media. It is simply not acceptable to give those good things away, surrendering freedom for safety, in response to windy threats from the 'ginger jihadi' of Bankstown. We can do better than that. Giving away freedom for security is like giving your possessions to a thief so you will not be robbed. At the risk of repeating a worn phrase, it would be tempting to call Mr Abbott and Mr Shorten the girly men of personal freedom, but I do not know of any girls who would be intimidated by threats from a spotty youth on YouTube.

Young men with limited skills and an aggressive cast of mind have always been attracted to violence and have often committed crimes That those crimes are now sometimes committed in the name of Islam does not make them different from crimes committed in the name of communism or fascism, or even just testosterone. There is nothing unprecedented, urgent or super risky about any of this. The internet has changed many things about the modern world, often for the better, but communists and fascists alike were able to convince Australians to fight in Spain in 1936 without it.

When I came to write this speech, there were lots of words and phrases I could have used at the outset to describe the foreign fighters bill. I could have called it Orwellian in its desire to put the Australian people under surveillance. When discussing Hizb ut-Tahrir, I could have pointed out that the best response to speech is more speech. I could also have suggested that the government was in the process of tearing up the Magna Carta and depositing the bits in Lake Burley Griffin. I did not use that language at the outset precisely because it has become stereotyped. However, that does not make it any less true. Look at what you are doing to Australia's democratic heritage; and then, in the name of all that is decent, do better.