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

I rise to speak on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. I want to start by reflecting that, recently in this place, we have debated and passed a bill to place control orders on children who have committed no crime and today we are presented with a bill that seeks to keep people in prison after their sentences have been served because they might commit a crime. This offends a basic principle of our justice system. I know that arguments have been put and no doubt will continue to be put that there are other post-sentence detention regimes which exist in Australia and other parts of the world, and that is true—there are—and, to a degree, this legislation shares some similarities with those schemes. But two wrongs or three wrongs or four wrongs or any number of wrongs cumulatively do not make a right. The Australian Greens will not be supporting this legislation before us today. To imprison somebody because they might do something—which is what this legislation seeks to do—represents an unacceptable continuation of the erosion of civil liberties and human rights in this country that we have seen in the name of counter-terrorism, and that erosion has occurred on a bipartisan basis, under governments of both political stripe, all too regularly over the last decade and a half or so.

This bill amends the Criminal Code Act 1995 to establish a continuing detention order regime—that is, a regime that can keep people in prison after they have served the sentence of imprisonment that has been handed to them by the relevant courts. I want to acknowledge that, even though the Greens do not support this bill, we are pleased to see that the amendments circulated by government have adopted the recommendations of the Parliamentary Joint Committee on Intelligence and Security. I will pause there to note the obvious: the Greens and the crossbench are not represented on that committee. It is a bipartisan stitch-up. It is disappointing in the extreme that neither the Greens nor the crossbench has a representative on that committee, and if the government and the opposition were serious about approaching counterterrorism in a constructive and collaborative way then they would make an offer, through amendment, for either the Greens or other crossbenchers, or both, to have a position or positions on that committee.

We understand and acknowledge that this bill is the result of a COAG agreement where the states and territories agreed to implement a nationally consistent post-sentence preventative detention scheme. It is important to point out that continuing detention order schemes are imposed consequent to civil proceedings, and I want to quote Dr Tamara Tulich, writing in the UNSW Law Journal, who said:

Post-sentence preventive detention … orders straddle the civil-criminal divide. While they are connected to a criminal process, in that an individual may be detained … upon the completion of a term of imprisonment, … [it is] at a point in time after that which is traditionally accepted in the criminal justice system. The state may thereby impose significant restrictions upon an individual’s liberty while ‘side-stepping’ the enhanced procedural and evidentiary safeguards that attach to the criminal justice system.

That is one of the points that the Australian Greens want to make in this debate. This bill does effectively sidestep procedural and evidentiary safeguards that attach to the criminal justice system.

I want here to raise the issue of the standard of proof that is contained in this legislation, which is 'to a high degree of probability'. I would be very grateful if the Attorney, in his response in the second reading, could address that matter of the standard of proof, specifically whether this standard of proof exists in any other Australian legislation and, if so, what that legislation is. I would appreciate it if the Attorney would also explain, in lay terms if you like, where the standard of proof of 'high degree of probability' sits in relation to commonly accepted standards of proof such as beyond reasonable doubt, comfortable satisfaction and balance of probability. If the Attorney is able to respond to that in his second reading contribution, that would be appreciated by the Australian Greens. If that response is not given, I indicate that I will seek to go briefly into the committee stage for this legislation and explore that specific matter, but I do not intend to unnecessarily delay the Senate by a lengthy exploration of this bill in the committee stage.

It is important that we place on the record the differences between the classes of people that can have a continuing detention order made under a state scheme and the class of people that this legislation will apply to. State schemes are directed at high-risk sex offenders and high-risk violent offenders. In those cases the offender who is subject to a continuing detention order has committed a serious sexual or violent offence. In contrast, this bill will allow for a continuing detention order to be made against an offender who has committed a preparatory terrorism offence. If it passes in the form that is flagged—that is, its current form with the amendments that are proposed—this bill will be the first piece of legislation in Australia that will allow for the imprisonment of someone who might commit a crime and who has not already been imprisoned for a sexual or violent offence. That is a step that has never been seen in this country before.

In a submission to the Parliamentary Joint Committee on Intelligence and Security, Professor George Williams and others said that this legislation:

… captures within the definition of a ‘serious Part 5.3 offence’ not only the commission of a terrorist act but also a broad range of preparatory conduct. This includes, in the first place, the five preparatory terrorism offences in Division 101 of the Criminal Code. These go beyond the traditional inchoate offences by criminalising activities which are merely preparatory to the commission of a terrorist act.

… For example, it is an offence to attempt to possess a thing connected with a terrorist act or to conspire to do an act in preparation for a terrorist act. These offences ‘render individuals liable to very serious penalties even before there is clear criminal intent’ to engage in a terrorist act.

By contrast, the scope of the serious sex offence and serious violence offence post-sentence detention regimes have been carefully confined to circumstances where a particularly serious offence has actually been committed or where a person has attempted or conspired to do so.

To sum up the concerns raised in that submission, which are absolutely and strongly shared by the Australian Greens, this bill goes a significant step further than anything we have seen before in this country in the context of post-sentence detention regimes and captures the act of committing preparatory offences—that is, offences where someone has been found guilty not necessarily of committing a terrorist act but of a range of offences that fall, in chronological sequence, well before the actual commission of a terrorist act.

This bill raises a number of human rights concerns. As I said, it further steps down the road that this parliament has been on for a decade and half, where we have seen an ongoing erosion of civil liberties and human rights in this country in the name of protecting Australia from terrorism. I want to be clear about the Greens' view here, and that is that of course a primary responsibility of this parliament needs to be to keep Australia safe. I do not think anyone in this parliament would disagree with that statement.

The issue, of course, becomes: where do we find the balance? Again, I do not think anyone in this house would disagree with that statement. Where there would, however, be differences is where that balance ought lie. As I said, the ongoing erosion of civil liberties and human rights in this country has been delivered on a bipartisan basis by the Liberal and National parties and the Labor Party, and it has been done over governments of both political stripe. This is why the Greens believe that there is an urgent need in this country for a counterterrorism white paper. The erosion of civil liberties and human rights that has occurred in this country has occurred without governments—and I include governments of both political stripe here—making a robust evidentiary case and without putting a constructive and solid argument before this parliament and the Australian people that the erosion of civil liberties and human rights is actually making Australia safer.

I have made this point in the past that it is time for a white paper on this issue. I know the Attorney will be beginning to get sick of me raising this, but I do believe that it is time. I accept a response that has previously been given to me, which is that the counterterrorism landscape is changing quickly, and I agree with that and I accept that. Sorry, I will just withdraw that and clarify it: I accept the response that has previously been given to me that the terrorism landscape is changing rapidly around the world, and that is true. It is also true to stay that the counterterrorism landscape is changing rapidly around the world, and we are dealing with a case of that today. But I make the point that a white paper can be a living document. It can be a document that is able to be carefully and rigorously changed and revised in response to the changing landscape of terrorism around the world. It would be inconceivable that we would move forward in defence policy in this country without the foundation of a white paper, and it ought to be inconceivable that we can move forward in response to the threat of terrorism and violent extremism and with policy responses to respond to terrorism and violent extremism without a white paper process.

I turn to the human rights concerns of this bill. The explanatory memorandum states that, to the extent that it limits some rights, the limitations are reasonable, necessary and proportionate. The Australian Greens do not accept that statement. I will give a couple of examples of our concerns. But, firstly, it is worth placing on the record that the United Nations Human Rights Committee found that the Queensland and New South Wales schemes—these are state-based schemes that relate to sexual offenders or violent offenders—breach the prohibition on arbitrary detention under article 9 of the International Covenant on Civil and Political Rights. Article 9 provides that a person must be detained lawfully and that any detention must not be arbitrary, meaning that it must not be inappropriate or unjust and must be predictable. It is difficult to understand what is just or predictable about being told 12 months before your sentence is due to finish that the government intends to apply to keep you in prison for a further three years. In addition, the Senate Standing Committee for the Scrutiny of Bills commented that continuing detention can plausibly be characterised as retrospectively imposing additional punishment for past offending.

To issue a continuing detention order, a court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorist offence if the offender were to be released into the community. The Australian Human Rights Commission, in their submission, stated:

For any system of preventative detention to be justifiable, it must be possible to make robust predictions about the likelihood of future risk.

Predicting future risk or dangerousness is notoriously difficult. Dr Tulich in a submission to the committee stated:

At present, there is no way to accurately assess the level of risk that a convicted terrorist will reoffend. This is because no validated terrorism-specific risk assessment tools currently exist.

I would ask the Attorney, if possible, during his second reading response, whether there is any information he can place before the parliament about whether, in relation to any of those tools—that is, tools that would allow for the assessment of risk in a terrorism-specific context—there is any work being done by government to develop such an assessment tool.

I also want to make the point that in our prison system—and I accept this is, in the main, a state and territory responsibility—we do not offer an adequate range of rehabilitation programs in our corrections system. If you want to bring crime down in any jurisdiction in the context of this legislation and if you want to minimise the likelihood of people conducting terrorist attacks in this country, you have to invest in rehabilitation programs within our prison system. Investment in those programs ought to be considered a strategic part of the government's countering violent extremism programs. If we are really serious about not releasing potentially dangerous terrorists into our community, we need to put far more resources into rehabilitation programs in our prisons. If we did that, perhaps legislation like this would either not be necessary, or would not have such arguments that the government and opposition have used to support it.

In the short time left to me, I want go to the issue of statements that have been made by government ministers and legislation that has been passed or flagged by government and their impact on our security agencies' work in engaging with communities in Australia as part of the countering violent extremism program. We have heard Minister Dutton recently make public comments about Lebanese Muslims, which are extremely unhelpful. As the Attorney is well aware—because he was sitting next to Mr Lewis, the director-general of ASIO, during Senate estimates recently—I asked Mr Lewis about statements made by high-profile Australians that seek to pick off minority groups in our community and what the impact of those statements was on ASIO's work. Mr Lewis made it very clear—and I make it clear that he was not referring specifically to any person; it was a generic question—that statements of that ilk make the work that ASIO is doing more difficult. The soft work, if you like, that ASIO is doing—reaching out into communities where there is a risk that some people in those communities may become radicalised and working with them to attempt to prevent radicalisation of people in those communities—is made more difficult by public comments of the nature that I have just been speaking about.

It is also worth pointing out that legislation like this has the same effect, in the view of the Australian Greens. There are some communities in Australia who feel that this legislation will disproportionately apply to them, and once again that leads to them circling the wagons, if you like, and again it makes the job of our security agencies more difficult.

Mr Lewis was clear that ASIO is well aware that we cannot arrest ourselves out of the challenge of violent extremism, and he is absolutely right about that. The best and most strategic way, in the long term, to counter violent extremism in this country is to engage in deradicalisation programs and to engage with communities where there is a risk that people may become radicalised and attempt to prevent that from happening, because prevention, in the context of terrorism, is better than responding to terrorist attacks after they occur.

So, while we acknowledge that there may be arguments to bring in legislation that erodes civil and human liberties in the name of keeping Australia safe, we do not believe the argument has been adequately made by government in regard to this legislation. We believe it unacceptably erodes civil liberties and human rights in this country, and on that basis we will not be supporting it.