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

I thank honourable senators for their contributions to the debate. The Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 responds to a significant public safety issue by establishing a framework for the continued detention of high-risk terrorist offenders serving custodial sentences who are considered by a Supreme Court to present an unacceptable risk to the community. The court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender does pose an unacceptable risk of committing a serious terrorist offence if released into the community.

The proposed post-sentence preventative detention scheme is a necessary response to the serious threat that terrorism poses to Australia and its people. Since September 2014, there have been 24 counterterrorism operations in Australia, resulting in criminal charges against 55 persons. Across the country, there are a total of 17 terrorist offenders serving custodial sentences, and 40 persons currently being prosecuted. During his contribution, Senator McKim asked for the robust evidentiary case to justify the bill. There is no clearer and stronger or more robust evidential case than the very significant escalation in the amount of terrorism-related conduct in Australia, as evidenced by those figures.

All state and territory governments agree on the need for this bill, and I want to thank them for their cooperation. This has been a collaborative, cross-jurisdictional, cross-partisan exercise. At the Council of Australian Governments meeting in December 2015, the Prime Minister, premiers and chief ministers agreed to develop a nationally consistent postsentence preventative detention scheme to enable a continuing period of imprisonment for high-risk terrorist offenders. At a COAG meeting in April, states and territories agreed, in principle, for the Commonwealth to lead the process through Commonwealth legislation, in consultation with the states and territories, to develop such a postsentence preventative detention regime that could apply uniformly across all jurisdictions. After further discussion between the Prime Minister, the premiers and chief ministers in July, on 5 August I met with state and territory attorneys-general to discuss the issue. All jurisdictions agreed in principle to the creation of a national postsentence detention regime on the terms of the Commonwealth draft bill. In accordance with the 2004 Intergovernmental Agreement on Counter-Terrorism Laws, states and territories have now all agreed to the form of the bill now before the parliament.

The regime is modelled closely on existing state and territory postsentence detention regimes for high-risk sex or violent offenders. The bill has had the benefit of extensive scrutiny by parliamentary committees, including the Parliamentary Joint Committee on Intelligence and Security. In its advisory report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, the committee made 24 recommendations to improve the bill and the explanatory memorandum, and it recommended that the bill be passed once the recommendations were implemented. In their contributions, Senator Wong and Senator McAllister suggested that these recommendations came from Labor members of the committee. The Parliamentary Joint Committee on Intelligence and Security meets privately and has always operated collegially and collaboratively. The recommendations are not recommendations from the Labor Party. They are recommendations of the committee—a committee with a government majority, in fact, in which both government and opposition participants agreed and joined. The government has accepted and has implemented, or will implement, every recommendation. In line with the committee's report, the amendments I will move are primarily directed towards somewhat narrowing the scope of the regime, enhancing the already strong safeguards and strengthening reporting and oversight mechanisms.

Might I address some of the matters that have fallen from the lips of honourable senators in their contributions to the debate? I will begin by thanking those political parties who have indicated that they support the bill. I want to thank the opposition. This is, as Senator Wong pointed out, the sixth major piece of counterterrorism legislation which this parliament has dealt with since September 2014, and all of them have been supported by the opposition. As I said a moment ago, the fact that the PJCIS has recommended in each of those cases amendments which the government has then adopted is an illustration of the dialogue and the interlocutory process between the executive government and the parliament, speaking through its committees. It is an example of our system working as it was designed to work. The executive government, through ministers, in consultation with their departments and agencies, develops legislation to address an identified need. We consult the wisdom of the parliament through its committees. The parliament through, in this case, the PJCIS, considers the proposal, recommends where it sees opportunities to improve the proposal and recommends improvements to what the executive government has put forward. The executive government considers the views of the parliament and, as in this case, adopts those recommendations, and then we move forward to enact the bill in a bipartisan manner. That is not something to be made the subject of political pointscoring. It is something that the government welcomes, and, as I said, it is an example of the system working the way the system was meant to work.

I would also like to thank Senator Xenophon, the leader of the Nick Xenophon team, and Senator Hanson, the leader of One Nation, for their indications of support for the bill. Two interests represented in the Senate, the Greens, represented in this debate by Senator McKim, and Senator Leyonhjelm, have indicated that they oppose the bill. I will deal with the issues that those honourable senators have raised now.

I will deal first with what Senator McKim and Senator Leyonhjelm have had to say. Their contributions are essentially that this bill should be opposed because it impinges upon civil liberties and human rights. The civil liberty point of view should always be heard in a debate like this. Whenever the executive government proposes to extend the power of the state to punish, including policing, then the civil liberties point of view should always be heard in order to challenge why that is necessary. I welcome the contributions of Senator McKim and Senator Leyonhjelm; although, if I may say so, with all due respect, I find the civil liberty point of view more credibly expressed by a contribution from someone like Senator Leyonhjelm, who adopts a classically liberal or libertarian philosophy, than from Senator McKim, whose party seems to be beloved of the political philosophies of the authoritarian Left. Leaving that to one side, I do welcome the contribution to agitate the issue of civil liberty. These are always compromises as I think, in various ways, Senator McKim and Senator Leyonhjelm have acknowledged.

I will now deal with a couple of the points that Senator McKim has made. Firstly, he raised the question of the standard of proof. The standard of proof, as you have pointed out, Senator McKim, is high degree of probability, and it also requires that the fact-finding tribunal, in this case a supreme court or the judge of a supreme court, act on the basis of admissible evidence. A high degree of probability sits between the traditional civil standard of proof, which is on the balance of probabilities or, if I may hazard the use of layman's language, 'more likely than not' and the criminal standard, which is 'beyond reasonable doubt' so that if there is any reasonable doubt about the conclusion then the conclusion must not be reached. A high degree of probability sits, as I said, between those two standards—higher than the former and lower than the latter.

You asked me, Senator McKim, whether that standard of proof is reasonably well known to the law. The answer to your question is, yes, it is. It is sometimes called the Briginshaw standard after a decision of the High Court as long ago as 1938 in a case called Briginshaw v Briginshaw which discussed the terms 'comfortable satisfaction' and 'reasonable satisfaction'. In general that standard reflects the principle that a court or tribunal determining whether a fact has been established to the civil standard does not undertake a mere mechanical comparison of probabilities. So it elevates the level of satisfaction required of the decision maker beyond a mere balancing of probabilities, which is the civil standard. I see you nodding, Senator McKim. I hope I am addressing the question that you have put to me.

That standard, sometimes called the Briginshaw standard, draws attention to the fact that in certain civil proceedings something more is required than a merely probabilistic conclusion but not as much as the criminal standard of 'beyond reasonable doubt'. That standard is a common feature of legislation of this kind in the states and territories dealing with high-risk sex offenders and high-risk violent offenders.

Senator McKim, you said that a United Nations human rights body has criticised this legislation on the grounds of arbitrariness.