Jenny McAllister (NSW, Australian Labor Party) Share this | Hansard source

I rise to speak on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. I want to take the opportunity to speak to the process that the parliamentary joint committee went through in reviewing this bill. In particular, I would like to highlight some of the issues that Labor members were focused on through the committee process.

Labor supports the intent of this bill. We acknowledge the threat that terrorism poses to Australians and our responsibility to curtail this risk. We also acknowledge the extraordinary nature of the provisions that the bill seeks to establish. Our concern was to ensure that proper scrutiny was applied to the provisions of this bill. As always, we seek to strike the appropriate balance between individual rights and community safety, a balance that is sought in all democratic societies and is always subject to debate.

This bill comes to the parliament with the unanimous support of all states and territories. The communique from the 5 August 2016 meeting of all attorneys-general noted:

Terrorism poses a grave threat to Australia and its people. It is important to manage terrorist offenders who may continue to pose an unacceptable risk to the community following the expiry of their sentences. It is critical that we work together to implement this scheme as early as possible.

The highest priority for Commonwealth, State and Territory Governments is to ensure the safety of the community. We also recognise the importance of balancing that with the protection of basic human rights

Labor supports the principles that are articulated in that communique. However, preventative detention for the purposes of community safety is an extraordinary step, and Labor takes very seriously the parliament's role in ensuring that security legislation is proportionate to the threat. The committee went through a thorough process of assessing the details of the bill and made a number of recommendations to make the bill more proportionate, effective and fair. There are six issues in particular that concerned Labor members of the committee and that I would like to highlight.

First, Labor committee members were concerned about the lack of clarity about what advice the government had sought and received from the Solicitor-General about the constitutionality of the bill in its final form. I note the recommendation in the committee report that the government provide advice regarding the constitutionality of this bill in its final form.

Second, Labor members were concerned to ensure that the bill was properly targeted at terrorism offenders. As originally drafted, the bill included treason amongst the offences that would bring an offender within the continuing detention order regime. The Law Council of Australia gave persuasive evidence that treason was a qualitatively different offence from terrorism offences. Labor members agree with the Law Council that the case has not been made for extending the regime to treason. To the same end, Labor members also considered that inclusion of some of the recruitment offences in part 5.5 of the Criminal Code was inappropriate. Offences relating to the publishing of recruitment advertisements differ qualitatively from other recruitment offences. Labor committee members support the recommendation to exclude these publishing recruitment offences and treason from the offences which enliven the continuing detention order regime under the bill.

Third, Labor members consider that it is necessary to provide procedural fairness to offenders to protect both offenders and the integrity of the process. The committee received numerous submissions about the problems that would arise from allowing offenders to be made the subject of a continuing detention order on the basis of secret evidence. Labor members were concerned that secret evidence provisions would undermine an offender's ability to obtain a fair trial. We were grateful to receive confirmation from the department that, although some information may be protected from public release, all relevant information will be provided to the offender. For this reason, we strongly support recommendation 11 of the report, which seeks to make it abundantly clear that the offender is to be provided with all relevant information in a timely manner.

Labor members also took note of the evidence presented to the committee that the cost of retaining legal representation for a hearing may be beyond the means of many offenders. Continuing detention order proceedings may be lengthy and complex. They are also of extreme importance to the offender, and we consider that it is essential that offenders have access to legal representation as an important safeguard of their rights as well as of the integrity of the continuing detention order process itself. We support the recommendation to empower the court to stay proceedings and make an order for reasonable costs to be funded to enable the offender to obtain legal representation.

Fourth, Labor recognises the central role that expert witnesses play in continuing detention proceedings. A number of witnesses noted the unusual nature of having the court appoint expert witnesses. Labor considers that it is necessary for each party to the proceedings be able to bring forward expert witnesses. To this end, Labor members support recommendations 9 and 10, which make explicit each party's ability to bring forward their preferred experts. The court will then determine their admissibility.

Fifth, preventative detention is a relatively new part of our legal system. The committee noted:

Considerable work will be required … to implement the CDO regime … The scope of this work includes risk assessment tools, rehabilitation programs, housing arrangements and oversight mechanisms.

Labor are cognisant of the need for a robust implementation and review process to be established. We strongly support the inclusion of review mechanisms, including a 10-year sunset period and a review of the continuing detention order regime six years after its passage. These recommendations recognise the issues associated with the implementation of a new regime, as well as the extraordinary powers that are contemplated in the legislation. In particular, Labor committee members strongly supported the inclusion of a sunset clause, hopeful that the security challenges which confront Australia today may ease or alter in coming years, while of course recognising that the circumstances today demand a serious response.

Sixth, Labor members of the committee recognised the importance of a regime for continuing detention orders to be in proper harmony with state based regimes for control orders. Better integration of the two regimes would allow more gradation in the level of control applied to an offender. As observed previously in this chamber, the national terrorism threat level for Australia is 'probable'. Credible intelligence, assessed by our security agencies, indicates that individuals or groups have developed both the intent and the capability to conduct a terrorist attack in Australia. Our task is to develop laws which respond to these circumstances while protecting the liberties and freedoms which characterise our democratic system.

Labor take a bipartisan stance on national security legislation because the priority is to keep Australians safe and it is important our security agencies have the right legislative support in those efforts. It is also important that the freedoms which we value so highly in our democratic society are maintained. We need to strike the right balance between ensuring the safety of the community and protecting human rights. To this end, we are pleased that the government has accepted the recommendations of the PJCIS and that they will be implemented.