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

I rise to speak against the Counter-Terrorism Legislation Amendment Bill (No 1) 2014. This is the third—and narrowest in scope—tranche of the recent national security legislation, and I am sick of it.

I am sick of this government, with opposition collusion, chipping away at our rights and freedoms—rights and freedoms that took hundreds of years to build up, but that are rapidly being brought undone. Once again—as with the National Security Bill and the Foreign Fighters Bill—at no point has the passage of this bill into law been justified evidentially. In speeches, submissions, and articles on the previous two bills I asked for credible examples of harmful activities that only the passage of such laws would discourage. Once again, I make the same request. And once again I expect to hear nothing—because, I am sure, there is none.

On a first pass, part of this bill is actually useful—the proposed enactment of a statutory basis for ASIS to provide assistance to the ADF in support of overseas military operations. I understand that support of this nature has previously been provided only in an ad hoc way, without clear parliamentary authority. Government on the fly is never a good thing, and if this were all there was to the bill, I would support it. However, that useful change to existing law has been bolted onto an expansion of the control orders regime—something, in and of itself, obnoxious because it confounds the basic principle that people should not be deprived of their liberty without a finding of guilt.

This bill will make it much easier to obtain a control order, because it allows two extra grounds on which one can be issued. One, that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or, two, that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.

In my submission to the Parliamentary Joint Committee on Intelligence and Security—which I remind the government and opposition the crossbench is not represented on—I pointed out that these provisions are vaguely drafted and are not even linked to existing definitions in the Criminal Code. I believe they could be used—and I see no evidence to the contrary—to constrain speech: in particular, speech that falls short of incitement but endorses one or another form of extreme Islam. As I have already said, I believe that the main target is Hizb ut-Tahrir, and I am sure there will be further legislation if this law fails to silence them.

To their credit, the PJCIS, in its advisory report, agreed with me on this point, and recommended that the terms 'supports' and 'facilitates' be based on language in the existing Criminal Code. Yet, while the government says it accepts the recommendations of the PJCIS 'in principle', its response on this point is to make a change in the explanatory memorandum to this effect. This is ridiculous. A court will only look at the explanatory memorandum when the legislation is unclear. If there is potential for a need to look to the EM to understand what is intended, why not put it in the bill in the first place? I suspect the government is hoping the court will come up with its own interpretation of these words, which will be more broad than that in the Criminal Code.

Quite apart from the PJCIS's concerns, I wish to repeat my point that this bill catches all sorts of legitimate objections to foreign tyranny. Historically, and more recently, Australians have involved themselves in conflicts in the former Yugoslavia. I personally have no objection to anyone who advocates the violent overthrow of the regimes in Pyongyang or Harare. I suspect many people in this place would agree with me on the last two at least. As it stands, it is simply impossible to know in advance which foreign conflicts will attract censure and which will not.

Finally, control orders are civil orders—the grounds for one need only be made out on the balance of probabilities—yet to breach one attracts a penalty of five years' imprisonment. The idea of sending someone to jail for five years for something he says, on a balance of probabilities, should not be entertained in a liberal democracy.

The second 'bolt on' I find concerning is what amounts to a derogation from the convention of ministerial responsibility. As the law currently stands, emergency authorisations under the Intelligence Services Act must be made personally by a relevant minister—any one of the PM, the defence minister, the foreign minister or the Attorney-General. The authorisations, understandably, are very serious. They concern military operations against Australians who have taken up arms in countries like Iraq for terrorist organisations like Daesh. Leading lawyers—Professor George Williams of the University of New South Wales among them—point out that this amounts to a targeted killing regime. In principle, I have no particular difficulty with this, unlike some people. There comes a point where utterly demented hatred of Australia has to be recognised for what it is. However, the authorisation regime also has to be recognised for what it is and the buck really should stop with an elected minister, not an unelected civil servant.

When it comes to emergency ministerial authorisations for ASIO, ASIS, ASD and the AGO, this bill proposes that the relevant minister may have his emergency authorisation power exercised on his behalf by the head of one of those agencies in the event that he cannot be contacted or is unavailable. The traditional common law caution regarding authorisations where significant individual rights and liberties—in this case life, movement, association—would be affected is in play. To my mind, a regime where at least one relevant minister is always contactable should be instituted. Surely this is not beyond the organisational skills of the government. I am not alone in this view. Both the New South Wales Council for Civil Liberties and the Muslim Legal Network made similar observations in their submissions to the PJCIS.

The loosening of definitions in the previous two tranches of national security legislation when it comes to advocating terrorism, hostile acts in a foreign country and facilitation has been carried over into this bill. There is likely to be a serious chilling effect on speech, such that it may become even more difficult to establish who or what is a genuine threat to Australia and its people. The expanded grounds for the issuance of control orders not only abrogate the presumption of innocence but also introduce unwanted vagueness into the law, inviting misuse by future governments. Finally, where an emergency authorisation concerns a matter of life and death, as it almost certainly will, then the minister should exercise that authority personally. The convention of ministerial responsibility demands nothing less. I condemn this bill.