Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I rise to speak on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 on behalf of the opposition and indicate at the outset that the opposition will be supporting this bill, with amendments.

The bill is the sixth to be introduced since September 2014, making changes to Australia's national security and counterterrorism laws. It introduces a framework in part 5.3 of the Commonwealth Criminal Code that provides for a continuing detention order regime for high-risk terrorist offenders who are considered by a state or territory Supreme Court judge to present an unacceptable risk to the community. This bill was introduced into the Senate on 15 September of this year and immediately referred to the Parliamentary Joint Committee on Intelligence and Security, of which I am a member. We received 18 submissions, including from the Human Rights Commission, the Law Council, civil liberties and Muslim organisations. A public hearing was held, and the committee tabled its report on 4 November 2016.

Labor has consistently worked with the government to ensure our agencies have the powers they need to keep Australians safe; however, that does not mean that the government is provided with a blank cheque by us. We take a bipartisan stance on all national security legislation, but we believe that it is important that the freedoms which we value so highly in modern Australia are maintained. We should assert our values in how we confront terrorism and security threats as well.

Labor closely scrutinised this bill through the committee process, and we put a concerted effort into ensuring this bill has adequate protections in place such that it strikes the right balance between keeping Australians safe and protecting people's rights and freedoms. As a result of this, the committee made 24 substantive recommendations directed to improving oversights and protections in the bill, and the government has now agreed to implement all of these recommendations, which I acknowledge.

I will start by acknowledging that the bill before us seeks to establish extraordinary powers. That is why Labor sought the confirmation that the Solicitor-General had given advice on the constitutional validity of the final form of this bill. The committee recommended that the government seek advice on the final form, and we are pleased that the government did obtain that advice from the Acting Solicitor-General, Mr Thomas Howe PSM QC.

A number of amendments have been secured as a result to the bill which implement extra safeguards and aim to strike the appropriate balance, as I said, between rights, freedoms and community safety. This includes ensuring that terrorist offenders, subject to continuing detention order proceedings, have access to legal representation and will receive a fair trial.

Labor members were also concerned to ensure that the bill was properly targeted at terrorist offenders. The bill no longer includes treason or offences relating to publishing recruitment advertisements among the offences that would make an offender subject to the continuing detention order regime.

Expert witnesses will play a central role in continuing detention proceedings. The committee's recommendations have ensured that both the Attorney-General as applicant, and the respondent to any application, can both bring forward their preferred experts, and that an expert can be appointed at any time by the court.

Labor has also continued to press for a range of review mechanisms, as has been the approach we have taken in relation to many changes to national security legislation. On this occasion, this includes a 10-year sunset clause and a review of the regime six years after its passage. I note, again, the government's acceptance of these provisions.

The main elements of the proposed continuing detention order regime are contained in schedule 1 to the bill, which proposes to insert a new division 105A into the Criminal Code. Proposed subdivision A of that includes the object of the bill and definitions of key terms. The object of the bill is outlined in proposed 105A.1, which states it is:

… to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.

Proposed subdivision B provides that a continuing detention order has the effect of committing the offender to detention in a prison for the period in which the order is in force. The order may be applied to a person, if the person has been convicted of a serious terrorist offence. In the original version of the bill, a CDO, a continuing detention order, could be applied for against a person who has been convicted for the offence of treason.

A number of concerns were raised by submitters, including the Law Council of Australia, that the definition of treason offences are not necessarily comparable to the other terrorism-related offences proposed for inclusion in the bill. The committee accepted this proposition and also noted that no person in Australia has in fact been prosecuted for treason since the end of the World War II. The committee was concerned to ensure that the scope of offences is rightly limited to terrorism-related activities, and it did not consider that the inclusion of treason to be necessary or appropriate. That is reflected in the PJCIS's recommendations.

Proposed subdivision B also includes provisions about how a person who is detained in prison under a CDO must be treated. Some submitters to the committee inquiry were concerned that it might not be possible for the matters set out in subdivision B to be achieved and that this may result in continuing detention being punitive in breach of article 15(1) of the ICCPR.

The requirement that offenders be detained separately to convicted persons is a safeguard that the United Nations Human Rights Committee viewed as necessary to improve similar Queensland laws that were considered by the that committee in Fardon v Australia and Tillman v Australia. This was also acknowledged by the Parliamentary Joint Committee on Human Rights in its report on the bill. The Parliamentary Joint Committee on Intelligence and Security therefore considered that standards for housing arrangements ought be agreed and implemented across all jurisdictions, and that urgent attention must be given to ensuring that the conditions of detention are appropriate and consistent with Australia's human rights obligations. The committee recommended that it be provided with a timetable for implementation of this issue by 30 June 2017.

I want to turn now to the making of an order, and proposed subdivision C includes provisions about how a continuing detention order can be made. The Attorney-General or his legal representative may apply to a Supreme Court for a continuing detention order not more than six months before the end of the terrorist offender's prison sentence. The application must include certain information, and a copy must be given to the offender within two days, subject to certain exemptions.

A number of submitters to the committee were concerned to ensure that crucial evidence that will be relied upon during the CDO proceedings not be withheld from the offender. The Law Council of Australia indicated that secret evidence provisions undermine an offender's ability to obtain a fair trial. However, we note that the Attorney-General's Department, in a supplementary submission, clarified that secret evidence is not permitted. The committee has recommended that the bill be amended to make explicit that an offender is to be provided in a timely manner with information to be relied on in an application for a continuing detention order.

Proposed subdivision C also includes provisions about the appointment of 'relevant experts', the assessments conducted by relevant experts and experts' reports. A relevant expert is defined as a person 'who is competent to assess the risk of a terrorist offender committing a serious Part 5.3 offence if the offender is released into the community'. The court may make a written continuing detention order under proposed 105A.7 if, following receipt of an application, it is:

… satisfied to a high degree of probability on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community.

And it is:

… satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

The court must have regard to a number of factors in forming its opinion about the nature of the risk posed by the offender.

The issue of experts was a matter that the committee received a significant amount on evidence on. A number of submitters raised concerns about the bill requiring the court to appoint experts and then make judgements as to the admissibility of the experts' evidence. There are questions around whether a specialised body of knowledge exists in relation to the prediction of terrorist offenders' likelihood of reoffending. Some submitters also called for the development of a risk assessment tool. The prediction of future terrorist offending for the purpose of continuing detention order proceedings—indeed, for the purpose of national security more broadly—is of a very different nature to the current schemes in Australian jurisdictions which already provide for post-sentence controls to manage certain types of offenders such as sex offenders and violent offenders. There were questions raised before the committee about whether diagnostic tools can be used effectively to assess terrorist behaviour in the same way that they are used to assess high-risk sex offenders which fall within a range of diagnostic categories used by psychiatrists and psychologists to predict future risk. The Law Council raised the issue that there are likely to be challenges to the qualification of people who may be called to provide expert opinions and that this would put courts in an inappropriate position of ruling on objections to the expertise of experts whom the court itself has appointed.

In response to these concerns, the committee recommended that the bill and explanatory memorandum be amended to make explicit that both the Attorney-General, as applicant, and the respondent will be able to bring forward their relevant expert, or experts, and that the court will then determine the admissibility of each expert's evidence. The court also has the discretion to appoint a relevant expert at any point.

The period of a continuing detention order must be no more than three years. However, there is no limit on the number of successive continuing detention orders that may be made. This goes to the nub of why I at the outset acknowledged that these are extraordinary powers. The committee recognised that it is possible for a person to be held for prolonged period beyond their sentence if successive continuing detention orders are applied for and granted by the court.

In its submission to the inquiry, the Australian Human Rights Commission referred to the High Court judgement in Dietrich, noting that Australian law has recognised the inherent power of the court to stay criminal proceedings where an accused does not have legal representation and where legal representation is essential to a fair trial. Accordingly, the committee recommended that the bill be amended to provide that the court has the explicit power to stay proceedings for a continuing detention order and that it be empowered to make an order for reasonable costs to be funded to enable the offender to obtain legal representation.

Recognising that this is extraordinary legislation, Labor has also sought a range of review mechanisms to be incorporated into the bill. We consider that a sunset clause is an appropriate mechanism to ensure that there is a review of the regime after 10 years. As I said, that is appropriate given the extraordinary nature of the provisions of the bill and given that the control order regime and preventative detention regime were also initially subjected to a 10-year sunset clause. The committee is also to complete a review of the regime after six years and the Independent National Security Legislation Monitor is required to complete a review after five years.

In conclusion, this bill does provide for some extraordinary powers. However, particularly as a result of the amendments which have been agreed by the government after the report of the parliamentary joint committee, it will contain a number of safeguards and review mechanisms. We always need to ensure, in confronting national security threats, that we do not let go of the rights and values for which we are fighting. We need to keep Australians safe but also protect those rights. With the inclusion of these safeguards and review mechanisms, the opposition will support this bill.