Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

The Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 is the latest in a long line of counterterrorism legislation that has been presented to the previous parliament and no doubt will continue to be presented to this parliament. This legislation replaces the 2015 bill that was tabled in November 2015 and lapsed on the prorogation of previous parliament on 17 April 2016. I will go into detail about a number of provisions in this bill, but it is worth noting that the government has circulated an amendment that implements a recommendation of the Parliamentary Joint Committee on Intelligence and Security relating to a young person's right to legal representation. Given that this bill will pass the Senate and given the unsurprising speech that we have just heard from Labor, I am comfortable placing on the record that we will support the amendment as it strengthens the protections afforded to young people subject to control orders. However, we will not be supporting this legislation through the Senate today.

It is also worth pointing out that the 2016 version of the bill is updated with recommendations from the PJCIS as well as recommendations from the Independent National Security Legislation Monitor. The most significant amendment contained in this bill relates to control orders. Control orders first appeared in 2005 when the Criminal Code Act 1995 was amended to give federal courts the power to make control orders in response to a request from the Australian Federal Police. The 2005 amendments were subject to a sunset clause after 10 years, but that was extended to 2018 by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014.

The Australian control order regime is in broad terms based on the United Kingdom model, but, of course, one of the big differences between Australia and the United Kingdom in this context is that the UK must take into account their human rights act. There is, of course, disappointingly, no similar human rights act or bill of rights in Australia that would, potentially at least, depending on how it was framed, provide some fundamental protections against the ongoing and continual erosion of civil liberties in this country. It is worth pointing out that tens of thousands of Australians have fought, and in many cases died, to protect civil liberties in this country. Yet we, on a regular basis in this parliament, pass legislation that on any reasonable argument curtails civil liberties in this country without an adequate case being made by the government for that curtailment.

I want to be very clear: the fact that a 15-year-old person attacked Curtis Cheng is not of itself an argument to lower the age of people to which control orders can apply. That is no argument whatsoever. You should not, and never should, make laws based on the circumstances of an individual case. If we were going to do that, plenty of people senior in churches in this country would have had laws made based on things that have happened in churches in this country. I just offer that as one example of why you should never make laws based on individual circumstances.

The government has consistently failed to make the case for the ongoing erosion of civil liberties and human rights in Australia that we have seen particularly in the last 15 years, post those terrible attacks on America on 11 September 2001. That is why the Greens have consistently argued for a counterterrorism white paper—or a blue paper, if you want to call it that—to be prepared so that we can actually assess on a strategic and holistic basis whether or not this ongoing erosion of civil and human rights in this country in the name of counterterrorism is proportional, whether it is warranted and whether the government has made the case. But the government will not do that. We have been calling for this for a while now, and the government will not do it, despite the fact that there has been a counterterrorism white paper in Australia in the past.

I make the point that no coalition or Labor government would move significantly in the area of defence without a white paper. But, because it suits both of the establishment parties in this place politically to be seen to be strong against terrorism, they are happy to move in the counterterrorism space without a holistic and strategic approach. There must be a white paper on counterterrorism. It ought to be prepared as a matter of urgency. It is essential that that white paper be a living document because it is true that the terrorism landscape in the world and therefore the counterterrorism landscape are very rapidly changing situations. So any white paper would need to be something that could evolve quickly to respond to changes in the global terrorism environment. My view, and the view of my party, is that the reason the government will not do a white paper on counterterrorism is that it knows that it cannot justify rationally and reasonably the massive erosion of human and civil liberties in this country that has occurred in the name of counterterrorism in the last 15 years.

This bill extends the existing control order regime to include young people over the age of 14. While the explanatory memorandum refers to 'young people', what we are really talking about here is children. Let us be clear about this: we are talking about imposing control orders on children. We are also talking about imposing control orders on children who have committed no crime. Once again we are seeing, in the context of this legislation and in the context of legislation to introduce postsentence detention regimes relating to people who have been convicted of certain terrorist offences, a quite frightening scenario in this country where the forces, or some of the forces, of our security agencies can be applied either to people who have committed no crime or, in the case of postsentence detention, on the basis that someone might commit a crime in the future.

The National Children's Commissioner at the Australian Human Rights Commission, Megan Mitchell, said this about the proposal to extend control orders to people over the age of 14:

The proposal to extend control orders to younger teens enlivens a raft of potential human and child rights issues that go to our basic beliefs and value systems. These include rights to liberty, freedom of association, speech and expression, movement, privacy, and to be treated with dignity and respect.

I go on to quote further from the National Children's Commissioner, Megan Mitchell. She said:

There is also a grave risk that a child's education will be disrupted at a critical time, along with their participation in prosocial aspects of community life. Fourteen is an age where it is easy to go off the rails, disengage, make bad associations and get in trouble. An early introduction of young people into the criminal justice system as a result of these measures would not be a good outcome for these young people or the community.

I dare say there are plenty of members of this chamber who can reflect on Megan Mitchell's view, that 14 is an age where it is easy to go off the rails and disengage, with an element of personal experience.

Control orders undoubtedly infringe rights to freedom of movement and freedom of association. They will subject a child to restrictions on their liberty without any charge or finding of criminal guilt by a court. It is also important to recognise that, while a control order of itself does not authorise detention, the penalty for contravening a control order is five years imprisonment regardless of the age of the person. A trial order can restrict a person's movement by requiring that person to remain at specified premises between specified times—effectively a curfew. In addition, a person may be required to wear a tracking device, to restrict communication with specified people and to restrict access to telecommunications and technology.

In relation to control orders, the former Independent National Security Legislation Monitor, Mr Bret Walker QC, described the powers as 'not effective, not appropriate and not necessary'. He further noted:

… police should instead rely on their established powers to take action against suspected criminals through the traditional law enforcement approach of arrest, charge and prosecution.

The Australian Greens take no comfort at all from the government's assertion that control orders will only be invoked in limited circumstances. History is replete with powers being created for a specific purpose that, down the track, become normalised and used for a range of other purposes. The danger here is that control orders could become a new normal—and that, particularly, is true when you fit this piece of legislation into the ongoing and continuing erosion of civil and human rights in this country.

The Parliamentary Joint Committee on Human Rights has reported twice in relation to this legislation. It is worth pointing out that the 2016 version does differ slightly from the 2015 version of the legislation. I want to place on the record some of the matters reported by the Parliamentary Joint Committee on Human Rights. I will quote from Report 7 of 2016, dated 11 October 2016. The report makes it clear. It says:

The control orders regime, and the amendments to that regime proposed by the bill ... limit a number of human rights, including:

The proposed expansion of the control orders regime to children aged 14 and 15 years of age is also found by the Parliamentary Joint Committee on Human Rights to engage the obligation to consider the best interests of the child and a range of rights set out in the Convention on the Rights of the Child.

It is worth reading out some of the comments from the committee, because this committee has been established, at least in significant part, to allow parliaments to have an informed debate about legislation. Report No. 7 of this year, 2016, says:

1.280 The committee notes that proposed amendment to lower the age at which a person may be subject to a control order to 14 years engages and limits multiple human rights.

1.281 The committee observes that the previous human rights assessment of the 2015 bill considered that the proposed amendment was inconsistent with the obligation to consider the best interests of the child as a primary consideration and may enable the imposition of control orders in a manner incompatible with human rights.

1.282 Revised amendments address some of these concerns by providing that a court must, in determining whether each of the proposed obligations, prohibitions and restrictions under the control order are necessary and appropriate, consider the best interests of the child as a primary consideration and the safety and security of the community as a paramount consideration.

1.283 However, the preceding legal analysis states that this revision does not address all the concerns in relation to the human rights compatibility of the proposed amendments.

The compatibility of the measure around control orders and the right of the child to be heard in judicial and administrative proceedings is also the subject of comment from the committee. The committee found in its 2016 report:

1.287 The committee previously expressed in principle support for the recommendations of the PJCIS that the bill be amended to expressly provide that a young person has the right to legal representation in control order regimes and that the bill be amended to remove the role of the court-appointed advocate.

We acknowledge that improvements have been made in that context.

So, clearly, this bill engages and limits a number of fundamental human rights. It is the view of the Greens that the government has not made the case around the necessity of those limitations or, in fact, whether those limitations are proportionate.

I want to talk about the radicalisation of young people in this country. It is a matter of extreme concern, I am sure, to all of us in this place. But one of the reasons that some young people are becoming radicalised is that they have a feeling of being ostracised. I have to say that comments that have been made by coalition members in the past few years, along with comments by Senator Hanson, have contributed to that feeling of being ostracised, which in fact opens up more young people than would otherwise be the case to being radicalised.

I want to quote Keysar Trad, the President of the Australian Federation of Islamic Councils, who said in August this year that 'Pauline Hanson's outbursts are damaging to community relations'. He further stated:

The way she demonises Islam is very dangerous. I certainly believe that her comments radicalise people …

Those who actively recruit young people say, 'look what they're saying about you'.

In that context, I also wish to quote Mr Duncan Lewis, the head of ASIO, when I asked him in Senate estimates recently whether he would say that the threat to national security from radical anti-Islamic groups in Australia is growing. He said, 'Yes, off a very low base.'

I then asked him what public commentary around Islam being not welcome in Australia means for ASIO's job in fighting violent extremism. Mr Lewis said this:

I have made this point publicly in the past: we are, as an organisation, very dependent on engagement with the Islamic community. And, to the extent that there is commentary in the community about members of the Islamic faith being unwelcome here, the politics of that is one thing, but the practical implication for us is that it can make engagement with the Islamic community more difficult and, ipso facto, that makes our job more difficult.

I want to reflect on that very briefly. ASIO's job of keeping Australia safe is made more difficult by the public comments of high profile anti-Islamic figures in this country. They are playing into the hands of the very people they purport to oppose. When you place that in the context of an ongoing attack on multiculturalism in this country that is encapsulated by those who wish to destroy or water down the integrity of section 18C of the Racial Discrimination Act, you have a situation where things that happen in this place are making ASIO's life more difficult and ultimately, at least potentially, making Australia a less safe place.