George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Let me deal with the questions that have been put to me by Senator Macdonald and Senator Wright. Senator Macdonald, you ask for a definition of 'recklessness'. I know, Senator Macdonald, that you are a lawyer and, from my recollection—because we have known each other for a very long time—a much respected lawyer in North Queensland before you turned your career to public service. So, Senator Macdonald, as you would be aware, recklessness is a term with a technical legal meaning as well as a common-speech meaning. The concept of recklessness involves doing something heedless as to the consequences of one's conduct. So it is something more serious than negligence but something less serious than intention, because it does not involve the element of volition but it does involve the element of doing something heedless of the consequences for others of your conduct.

It is given a reasonably architectural definition in division 5 of the Commonwealth Criminal Code, which I might read, just to give you a complete answer. Section 5.4 of the Commonwealth Criminal Code defines recklessness in these terms:

  (1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

  (2) A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

  (3) The question whether taking a risk is unjustifiable is one of fact.

Senator Macdonald, what we are dealing with here is recklessness in relation to the commission of a terrorist offence or performing a terrorist act. The way in which the provisions of section 5.4 of the Criminal Code would be attracted, particularly subsection (2), recklessness as to a result, could be seen in a case like this.

Let it be said that somebody advocates the doing of a terrorist act. If, in their advocacy, they were aware that there was a substantial risk that that would occur—that is, the terrorist act they advocate—and, having regard to the circumstances known to them, it was unjustifiable to take that risk—that being a question of fact to be determined objectively by a jury—that is where the recklessness element would be satisfied, and that is what it means. So, to put flesh on the theoretical bones here, we have all seen instances—whether directly or on social media—of hate preachers advocating, and saying, particularly to young people, 'Go out and commit a terrorist act.' Now that is not the offence of incitement to violence, as I tried to explain to Senator Wright, because there is not the immediacy of the connection between the words and the act. But I think, Senator Macdonald, an experienced lawyer like yourself would well understand that that is a circumstance of recklessness. If you are a person who advocates to impressionable, radicalised youth, that they should go out and commit a terrorist act—a terrorist act being defined elsewhere, of course, as an act of violence for a religious, political or ideological cause—then it may very well be that a jury would conclude: 'You were reckless as to the consequences. You were more than negligent; you were reckless—because in those circumstances, there was a very substantial risk that the audience whom you were addressing would go and do the very thing that you were advocating.' I hope that satisfies your inquiry, Senator Macdonald.

Senator Wright asks what is the definition of promotion. Senator Wright, with respect, you asked the wrong question, because what is being prohibited here is 'advocacy', and 'promotes' is one of the four verbs that are used to define advocacy. So it is the 'advocacy' of a terrorist act or the commission of a terrorist offence, that attracts the operation of the new offence provision. To deal with your question directly, a court would read or interpret that word in the context of the words that appear around it, applying ordinary canons of statutory interpretation. So the word 'promotes' would take its meaning from the words around it in the statute: 'counsels, encourages or urges'. None of which, I see, you seek to omit. You are probably aware, Senator Wright, that there are certain areas of the law where the word 'promotes' does have a more technical meaning—for example, in the promotion of companies. But that is an entirely different area of law. So the word 'promotes' can have a technical legal meaning but in this case it does not; it has its ordinary, common-speech meaning, derived from the words that appear adjacent to it in the statute, and that much is made clear by paragraph 700 of the replacement explanatory memorandum. Let me read it to you, since you are not evidently familiar with it—