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

However, let me read it to you:

The terms ‘promotes’ and ‘encourages’ are not defined. The ordinary meaning of each of the relevant expressions varies, but it is important that they be interpreted broadly to ensure a person who advocates terrorism does not escape punishment by relying on a narrow construction of the terms or one of the terms. However, some examples of the ordinary meaning of each of the expressions follow: to ‘counsel’ the doing of an act (when used as a verb) is to urge the doing or adoption of the action or to recommend doing the action; to ‘encourage’ means to inspire or stimulate by assistance of approval; to ‘promote’ means to advance, further or launch; and ‘urge’ covers pressing by persuasion or recommendation, insisting on, pushing along and exerting a driving or impelling force.

That is the way in which these expressions are treated in the replacement explanatory memorandum. But, as the explanatory memorandum also says—and as I said—the expressions will have their ordinary language meaning. Therefore, Senator Wright, you do not have to be a lawyer to know what these words mean. They have the same meaning in this section as they have in common speech. The courts and juries, I believe, given the guidance that this provision gives them, can be relied upon to decide whether or not conduct amounts to encouraging, urging, counselling or promoting.

Lastly, Senator Wright, because you did make some rather extravagant claims, I emphasise a point that is too often lost in this debate. We are criminalising conduct. You could not work out before whether this was unnecessary because it was already covered by the law or it was extravagant because it was not already covered by the law. But I think you settled on saying it goes too far because it is not already covered by the law. Whenever the parliament declares something to be unlawful and, indeed, a crime which is not currently a crime, it should do so after careful deliberation, which is why we are having this debate and why the Parliamentary Joint Committee on Intelligence and Security looked at this so exhaustively. But we should always remember that the ordinary principles of criminal law are not suspended. That means that the burden of proof lies on the prosecution to prove every element of the offence, including the recklessness element.

But, secondly, the criminal standard of proof also applies. Let's never forget that. In all of these debates we have about the language of particular statutes and safeguards, the greatest safeguard of all is a principle of English criminal law going back centuries—namely, that the standard of proof for a crime for every element of an offence is beyond reasonable doubt. That is the greatest safeguard of the law. It has been part of our law, as inheritors of the English legal system, for centuries. Every element of this offence, like any other criminal offence, needs to be proved beyond reasonable doubt.