Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

I rise to speak on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. This bill responds to recommendations made in 2017 by the former Independent National Security Legislation Monitor, Dr James Renwick CSC, SC, and proposes to amend the Criminal Code Act 1995 to introduce an extended supervision order scheme. This would complement the current suite of powers available to the Australian Federal Police to counter the threat of terrorism.

Currently, when authorities believe that a convicted terrorist offender would continue to pose a risk to the community at the expiry of the offender's custodial sentence, the Commonwealth may apply to the supreme court of a state or territory for an order to continue that offender's detention for up to three years at a time. In order to make a continuing detention order, the court must be satisfied that no less restrictive measure would mitigate the risk to the community of the offender's release. In line with the recommendations by the Independent National Security Legislation Monitor, this bill proposes an alternative to continuing detention orders—that is, an extended supervision order. This would be a less restrictive option than a continuing detention order. Under an extended supervision order, a convicted terrorist would be released into the community at the end of their sentence but would be required to comply with prohibitions, restrictions or obligations that are, in the court's view, reasonably necessary and appropriate and adapted to protecting the community.

These powers do introduce a less restrictive option than what is currently in existence, but that is not to diminish the significance of the new powers. As this bill introduces extended supervision orders and such an order could significantly restrict the liberty of an individual who has completed their sentence, this bill was very carefully considered by the opposition.

The bill also seeks to address what the government has described as the current lack of interoperability between continuing detention orders and control orders in the Criminal Code due to the different courts from which these orders may be sought. Currently, only federal courts can make control orders and only state or territory supreme courts can make continuing detention orders. That means a supreme court cannot make a control order or any other type of post-sentencing order if, in the view of the court, less restrictive measures would be effective in preventing the unacceptable risk. If this bill becomes law, a state or territory supreme court would be able to make an extended supervision order as an alternative to a continuing detention order.

This bill was referred to the Parliamentary Joint Committee on Intelligence and Security for review. The committee received valuable and considered submissions from experts on law and human rights, as well as from government departments and agencies. Amongst the issues discussed in submissions and hearings were the human rights considerations of extending restrictions to a person's civil liberties after they have served their sentence, the methodology for assessing risk of future offending, the standard of proof required for an extended supervision order and the safeguards and oversight accompanying the powers proposed by the bill.

The committee made 11 unanimous and bipartisan recommendations. These included requiring that the issuing authority must consider whether a person is already subject to other post-sentence supervision orders, and the cumulative impact of multiple post-sentence orders, including the risk of oppression; an independent review to be provided to the parliament of methodologies used to determine a person's risk of violent extremism and the effectiveness of mandating participation in deradicalisation programs; and provisions for the Commonwealth to bear reasonable costs associated with the offender's legal representation. The committee also recommended stipulations that conditions imposed under an extended supervision order cannot in effect amount to detention, and that these new powers be subject to a statutory review by the committee after the Independent National Security Legislation Monitor conducts his review.

These are important and necessary recommendations that further demonstrate how seriously the Parliamentary Joint Committee on Intelligence and Security takes its role in calibrating the important issues of national security, human rights and procedural fairness, all in a bipartisan way in the national interest. I am pleased, then, both as a member of the intelligence and security committee and as a member of this chamber, to note that the government has advised that they will be accepting the majority of the committee's recommendations. As such, Labor will support this bill, strengthened and improved as it is by the amendments made.

Labor takes the issues of national security very seriously. Australia's national terrorism threat level was raised to 'probable' in 2014 and has remained there since. 'Probable' means there is a credible threat that people have the capability and intent to conduct terrorist attacks in Australia. In the time since 2014, the threat level has remained constant but the threat itself has transformed, including a now increased threat of ideologically-motivated violent extremism, fuelled largely by a rise in right-wing extremism and, sadly, as evidenced by the mass-casualty terrorist attack committed by an Australian right-wing terrorist in Christchurch. ASIO, the AFP and state law enforcement agencies have all warned that extremists are exploiting the fear and insecurity created by the COVID-19 pandemic, vilifying culturally-and-linguistically-diverse communities, spreading disinformation as a means of recruitment to sow fear and incite violence. The Attorney-General's Department and the Department of Home Affairs told the committee that, of the 86 individuals convicted of Commonwealth terrorism offences, 13 are due to be released over the next few years. With this in mind, it is important that our security and law enforcement agencies have a range of options to monitor the threat posed by terrorism, particularly by convicted terrorists who continue to demonstrate an intent to harm Australians.

These amendments, the amendments recommended by the committee, are important, which is why it is surprising that it took the government three years to introduce this legislation, as it had been recommended by the Independent National Security Legislation Monitor back in 2017. It is also surprising that the Minister for Home Affairs, Ms Karen Andrews, told the Australian Strategic Policy Institute in September that the need for this legislation was greater than ever, when the Morrison-Joyce government only handed its response to the committee's recommendations in late October. It is surprising to learn that the former Attorney-General, Christian Porter, had told the Australian newspaper in 2018 that 'the government intends to introduce legislation to create an extended supervision order scheme as soon as possible'. Perhaps we should not be surprised that 'as soon as possible' for the Morrison-Joyce government is actually in three years time. It is perhaps just another example of a headline and an announcement without the detail, and of acting too little, too late.

However, the bill is now at the parliament. It has now gone through a review by the Parliamentary Joint Committee on Intelligence and Security. It has been considered carefully by the committee, and as a member of the community, I acknowledge and thank all committee members for their diligence in conducting the review of this legislation. I acknowledge that the chair, Senator James Paterson, did considerable work on this legislation, particularly given that he only took on the leadership of the committee earlier this year and that a fair amount of the work done on the committee was prior to his taking on responsibility as chair.

We have arrived at a bipartisan report done in the national interest and focusing on what is important for Australia's national security. Having worked collaboratively and with diligence to review and improve this bill, Labor supports the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021.