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

Thank you, Senator Wright. I thought you had more questions, I must say, but if those are all your questions then let me give you the answers. In fact, Senator Wright, there are really only three issues you have raised.

First of all, you addressed recommendation 2 of the PJCIS report. I am asked why it is that the legislation does not define the expressions 'supports' and 'facilitates'. What recommendation 2 in fact does, and what the government has accepted because the government accepted all of the PJCIS recommendations, is to provide guidance in a revised explanatory memorandum of those terms. There is a particular reason why both the PJCIS and the government, in responding to its recommendations, have decided to approach the matter in that way. Those terms are borrowed from the Criminal Code. They are not defined in the Criminal Code either, but they are the subject of a body of judicial interpretation. The word 'supports', as you would know, Senator, as a lawyer, is not a lawyer's term of art; it has its common speech meaning. The word 'facilitates' is not a lawyer's term of art; it has its common speech meaning. Those terms used in a number of sections of the Criminal Code have been interpreted by the courts.

So you will readily understand, I am sure, Senator Wright, that if we were now to introduce a statutory definition of 'supports' and 'facilitates' here, then we would have the logical problem of having the terms undefined in other provisions of the Criminal Code, except by judicial interpretation, but defined in this section in a way which may not precisely mirror the judicial interpretation of the words elsewhere, so there would be the risk of inconsistent sets of definitions. You know the way courts approach these issues, Senator Wright: they would say, 'Well, the legislature, in its wisdom, defined these terms here, but it left them undefined there and there must be a reason for that, so the terms here must have a different meaning to the terms elsewhere in the legislation'. Purely from a legislative drafting point of view, the decision was made by both the PJCIS and by the government, in responding, to maintain consistency throughout the Criminal Code in the use of these terms but, as is commonly done, to give a fuller explanation in the explanatory memorandum. That is what the PJCIS asked us to do, and that is what we are doing.

The second issue you raise is an issue raised by recommendation 7 of the PJCIS report, and it is also an issue raised by paragraphs 1.73 through to 1.76 of the human rights committee report. I should say that the human rights committee report was only tabled during the course of the afternoon. I have not had an opportunity to study it carefully, but I accept what you say: that the paragraphs from which you have quoted—paragraphs 1.73 through to 1.76—raise essentially the same issue—that is, the definition of a class of persons. Recommendation 7 of the PJCIS report also was to the effect that that term should be explained in the EM, not in the bill, and that recommendation has also been adopted by the government.

What the amended EM which deals with this matter will explain is that a class of persons is identified solely by reference to the involvement or likely involvement of all of its members in activities of the type specified in paragraph 9(1A)(a) and not the personal or situational characteristics of individual persons, such as religion, political or ideological orientation, ethnicity or mere presence in a particular location. The activities specified in paragraph 9(1A)(a) are activities which involve a threat to security. The common feature of the class members is their involvement in hostile or prejudicial acts—not whether or not, for example, they happen to belong to a religious group or a political or ideological group or a particular ethnicity. So the meaning of 'class' is both narrow and specific to engagement in unlawful conduct. I should add that the Attorney-General's agreement to a class of persons can only be provided where the entire class of persons is involved or is likely to be involved in an activity or activities that are or are likely to be a threat to security as defined in section 4 of the ASIO Act.

In particular I want to make it clear to you, Senator Wright, that the class of persons is defined solely by reference to the involvement or likely involvement of all of its members in an activity that is or is likely to be a threat to security—and not the personal or situational characteristics of individual persons. That is why, by the way, the identification of a group by reference to a class of persons, as opposed to a nominated individual or individuals, is adopted—because, to be a class member, every member of that group has to be involved in the activity prejudicial to security. This is a compendious way of dealing with one or more activities inimical to security in which a multiplicity of persons are jointly embarked. That is the reason for the adoption of that language. It will be clarified in the amended explanatory memorandum which will be circulated tomorrow. That equally explains the question posed by the Human Rights Committee.

Thirdly, Senator Wright, you asked on what basis 7 March 2018 was set as the date of review of this legislation by the PJCIS. The PJCIS report on the foreign fighters bill, of which this is, in a sense, a further elaboration, recommended that certain powers be reviewed and sunset 18 months and two years, respectively, after the next federal election—18 months for review and two years, potentially, for sunset. Rather than have uncertainty about the dates in the legislation, dates 18 months and two years after the third anniversary of the last federal election were used. Those dates are, respectively, 7 March 2018 and 17 September 2018. The judgement that was made, purely for the sake of convenience and clarity, was to take the date three years after the 2013 federal election and identify dates, respectively, 18 months and two years after that. Those were the three issues you raised, Senator Wright, and those are the answers.

Senator Ludlam, you referred to a report by a journalist called Heath Aston quoting Vice Admiral David Johnston. I of course adopt the prudent practice of never taking anything that you say at face value and I will check the report of Vice Admiral David Johnston's remarks. Nevertheless, your question was, according to my notes: is it the policy of the Australian government to seek out and target Australian citizens and is this the purpose of these amendments? The answer to both of those questions is no.