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

Labor supports the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. As others before me have pointed out, it responds to a recommendation that was made by the Independent National Security Legislation Monitor quite some time ago in 2017. That recommendation was to establish a federal extended supervision order regime.

The bill went before the Parliamentary Joint Committee on Intelligence and Security and, before turning to the content of the bill, I just want to make some brief comments about Labor's broad approach to national security and how that affects the work in that committee. Whether in government or in opposition, we consistently work to ensure that our security agencies have the powers and resources that they need to keep our community safe, and that our laws are adapted to meet changing security threats. That approach is consistent. We take the advice of national security agencies seriously and we understand the context of our decisions—most specifically that in acting to protect our nation we act to protect a nation that is founded on the rule of law and respecting individual liberty.

Our approach to national security needs to reflect and respond to these core values. To the extent that individual rights are burdened—and they are burdened from time to time—such burden must represent the least-intrusive manner to achieve a security objective and be proportionate to the actual threat. We scrutinise evidence carefully and we never politicise national security. Labor is committed to working through the evidence of agencies, stakeholders and experts in a deliberative manner, and our bipartisan approach means exactly this: we expect the PJCIS to interrogate the issues that are placed before it robustly, without seeking to obtain narrow electoral advantage. We seek to embed in our national security architecture robust oversight. Strong and effective oversight does not undermine our national security; in fact, it enhances it. Public trust and confidence in our security and intelligence agencies are best ensured through strong and rigorous oversight and scrutiny.

As with all bills, that's the approach we took to this one. As I indicated, this bill has taken its time in arriving. The INSLM made a recommendation for a scheme such as the one contained in this bill in 2017. It took the current government three years after that to even introduce legislation into the parliament. In October 2018 the former Attorney-General Mr Porter told the Australian newspaper:

The government intends to introduce legislation to create an ESO scheme as soon as possible.

And yet legislation was not introduced until nearly two years later in September 2020. Now, in the last sitting fortnight of 2021, this bill has been listed for debate.

If this bill becomes law, it will be possible for federal authorities to seek an extended supervision order as an alternative to a continuing detention order. Under a supervision order, an offender would be released into the community at the end of his or her 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.

One of the key reasons for the bill is to address what the government describes 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'. It is a genuine problem, and the committee took evidence about this. Currently only federal courts can make control orders, but only state and territory supreme courts can make continuing detention orders. This means that a state or territory supreme court cannot make a control order a less intrusive response to a threat, 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, and this is because the making of these orders is not available to that court. If this bill becomes law, a state or territory supreme court will be able to make an extended supervision order as a less intrusive alternative to a continuing detention order, but only—and this is key—if this represents a proportional response to the risk that is posed and a response that is adequate to protect the community.

When the intelligence and security committee looked at this bill, we made a range of unanimous and bipartisan recommendations to improve the bill, including the inclusion of additional factors that an issuing authority must consider prior to issuing an extended supervision order, such as whether the person is already the subject of another post-sentence supervision order under state or territory legislation. We recommended that a court may make an order requiring the Commonwealth to bear all or part of the reasonable costs and expenses of the offender's legal representation for an extended-supervision-order proceeding.

These are important powers that have the capacity to intrude on a person's liberty. It is appropriate that a person be represented when these matters are being considered. The committee recommended that the issuing authority be required to assess the necessity and proportionality of the combined effect of all of the proposed conditions of an extended supervision order, not just each individual condition in isolation; ensuring that conditions imposed under an extended supervision order cannot amount to effective detention, by providing that a supervision order cannot require an individual to remain at a specified premises for more than 12 hours in any 24-hour period; that authorities cannot impose new conditions under an interim supervision order unless the subject of the order consents; and ensuring that authorities can exercise discretion when it comes to minor or unintentional breaches of a supervision order—that is, that they have the discretion not to prosecute if it is clear that this was not something intentional done by the subject of the order.

The committee also recommended that the government commission an independent review of the range of risk assessment tools that are available to evaluate whether a person poses a risk of committing terrorist acts, and that there also be a statutory review of their new powers within 12 months after the Independent National Security Legislation Monitor completes his review, noting that the monitor is due to commence that review as soon as practicable after 7 December of this year.

This is a good example of the committee exercising its authority and its role to review legislation and to ensure that it is balanced and proportionate. As I said earlier, the power to establish a post-sentence arrangement is a most significant power, and the committee's amendments largely seek to establish additional checks and balances to ensure that this power is not abused. The government has largely accepted each of these recommendations, though, with some justification, it has argued that legislative amendments are unnecessary to achieve two of the committee's recommendations. The government has, however, rejected part of recommendation 7:

The Committee recommends that proposed clause 105A of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 be amended to require that interim supervisions orders

The government has rejected the first part of this recommendation on the basis that it would like to retain the ability to have new conditions imposed under an interim supervision order, provided that those new conditions are agreed to by the independent issuing authority. Recommendation 7 was a considered, bipartisan and unanimous recommendation of the committee. In our view, the government has not offered a compelling reason to reject part of that recommendation, and for that reason I wish to place on record that, in the event that Labor is successful at the next election, it is a recommendation that we would revisit in government.

As the shadow Attorney-General noted in his remarks in the other place, not all of the concerns that were raised by submitters to the committee's inquiry are addressed by the government's amendments, nor were all of those concerns addressed by the Intelligence and Security Committee's recommendations. For example, the Law Council was not persuaded that amendments to the bill put forward by the Attorney-General's Department and the Department of Home Affairs in August, which would allow a control order or extended supervision order to apply to a person in immigration detention, were necessary. In common with a number of submitters, Labor members of the Intelligence and Security Committee also expressed concern that, where the bill departs from recommendations made by the Independent National Security Legislation Monitor, those departures have not been adequately justified by the department.

I note that, if the bill becomes law, the Independent National Security Legislation Monitor will be required to undertake a review of the measures contained in the bill as soon as practicable after 7 December 2021. Just as importantly, the Intelligence and Security Committee will be able to commence its own inquiry within 12 months of the INSLM's report being completed. Those reviews will provide the monitor, the parliament and civil society groups an opportunity to evaluate the practical application of the measures contained in this bill, and to consider whether further improvements are necessary or desirable.