Andrew McLachlan (SA, Liberal Party) Share this | Hansard source

LACHLAN () (): I rise to speak about the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. This bill seeks to amend the Criminal Code Act 1995 to introduce the concept of an extended supervision order, which may be imposed on terrorist offenders if they're released into the community and the court finds that on the balance of probabilities they pose an unacceptable risk. It can then apply various conditions on that individual. There are also ancillary amendments in the body of the bill which expand monitoring and surveillance powers to support this initiative.

As an old defence lawyer, these types of bills always put a shiver up my spine. They always have the language of Orwell, and they should be considered at great length before passing any parliament. In this instance, in my review of the bill, I have found comfort in the process of the bill as outlined by my friend and colleague, Senator Paterson. It is not a knee-jerk reaction to a supposed problem. It is a real problem. The foundation stone of this initiative is that there is an existing and increasing terrorist threat to this country as groups seek to take away and challenge our liberty with asymmetric warfare. As my other colleague and friend Senator Molan has expressed, that is only going to increase, unfortunately, and become far more complicated.

What also gives me comfort in relation to this bill is that the parliament has already decided to have this type of order, so it would be presumptive of me, as a new member of the Senate, to rail against an order when the parliament has already settled on a regime of this nature. In fact, this provides an additional, less restrictive option for the courts, not only because there is a possibility for a person that will not reject their ways of evil and violence that they may fall between the current legislative regime and return to civilian life but also it is less restrictive and gives greater options. In this country we already have control orders, interim control orders, preventative detention orders and continuing detention orders. So the fact that this is less restrictive and provides for less restrictive options should find favour with members of this Senate.

It has gone through the Parliamentary Joint Committee on Human Rights, it has been examined by the Senate Standing Committee for the Scrutiny of Bills, it comes from a suggestion of the Independent National Security Legislation Monitor and, of course, it has been subjected to an inquiry by the Parliamentary Joint Committee on Intelligence and Security. The parliament and this Senate have worked hard to bring this bill to the chamber without any unnecessary oppressive conditions and sought to balance the rights of the individual against the needs of the collective. That is, of course, always a difficult conundrum.

There were two aspects of the bill which were, if I can use the term, 'debated' by the various committees. One was that this is a form of punishment. If a person commits a crime, they are tried, found guilty and punished. There is always an objection, once the punishment is complete, that they shouldn't be punished again. The rationale for the bill by the government, and it has some merit, is that this is a control order about future risk and not a compounding punishment. You have to accept that principle to accept this bill. I dealt with this ethical dilemma when I was in state parliament and similar legislation was brought in by the Labor government in relation to sex offenders who weren't rehabilitated but were leaving prison and posing a significant risk to the community. The parliament similarly settled on a like rationale.

The other aspect of the bill which was subject to much debate in the committees or in dialogue between the various parties, was the concept of the lower burden of proof on the balance of probabilities that there was the likelihood of an unacceptable risk. The government's view, which was accepted by members of the committee in its dialogue, was that this is a lesser condition placed on the individual. The others are detention orders and thus should have a higher burden. This is a less restrictive condition which potentially allows these individuals to return to the community, albeit under particular reporting conditions and/or surveillance. So, again, the resolution or the landing of both the government and the various committees has given me comfort, and I also appreciate the comments from across the aisle from members of the Labor Party, similarly taking a view that we appear to have landed at least in a position of some balance.

Speaking of balance, I've always had an interest in the debate about liberal democracies restricting individuals' rights in the pursuit of the collective security. It's a fascinating topic, and there are, dare I say, hundreds of articles—maybe more—on this topic. In my reading, in contemplating my comments for the debate tonight, I came across a 2006 article by Christopher Michaelsen, 'Balancing civil liberties against national security? A critique of counterterrorism rhetoric'. He argues, interestingly, that the dichotomy between civil liberties and restricting them for national security is a false dichotomy, a false debate, not a rewarding one that will lead you down the path of a rational conclusion. In fact, he points out that people always argue that we must curtail civil liberties to combat terrorism. On the flip side, others argue that if we curtail our liberties we're no better than the terrorists. That's an oversimplification of a complicated argument. But he does cite various aspects of German law. I do not profess to be an expert in German law at all. It is something I have never studied. I do have a degree in Scot's law, but it's unhelpful this evening. German constitutional jurisprudence uses a proportionality test, which consists of three main requirements. Any curtailment of constitutionally protected civil liberties and human rights must generally be (1) suitable, (2) necessary and (3) appropriate. I only raise this point for the benefit of members and perhaps their future reading. But I think, even if you apply that test, having regard to the various reviews of the committees, this bill should find favour with the Senate.