David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I rise on behalf of the Greens to indicate we will not be supporting the Counter-Terrorism and Other Legislation Amendment Bill 2023. At the outset, I note that there are a number of modest improvements proposed to the regimes covered by this bill as a result of these amendments, but those modest improvements to a regime which is so contrary to our basic liberties and our basic traditional legal protections are so cosmetic that they do not amend the substantive law sufficiently for the Greens to support them.

Of course, one of the key provisions in this bill is to extend the sunset clauses for these various counterterrorism laws by yet another three years. As I've noted before and as most civil liberties advocates have noted, when it comes to counterterrorism laws and laws that beef up the security state, sunset provisions are inserted in the bills but the sun never sets. Indeed, that's what this bill proposes. It proposes to push off the sunset not for 12 hours but for a further three years. The bill extends the operation of a series of police powers—largely Australian Federal Police powers but, in some instances, powers able to be exercised by other police bodies—under the 1914 Crimes Act and the 1995 Criminal Code Act for a further three years, extending them to December 2026.

In terms of the three principal elements of the bill, the first is the power to stop, question and search persons and to seize items in identified Commonwealth places—for example, on the floor of the Senate chamber, while Senator Scarr wanders about like that. It gives the authority to stop, question and search people as well as seize items in defined Commonwealth places—including in what are called 'prescribed security zones'—and to do that without a warrant and without the need for reasonable suspicion. That power being given to police to stop, question and search without reasonable suspicion and without a warrant was, until these laws passed in 2005, unknown to our legal system. Those powers were offensive to our legal system. They were something far more at home in deeply authoritarian states than in a liberal democracy such as Australia pretends to be.

The second aspect of the bill is the control order regime. The control order regime allows for obligations and restrictions to be imposed on people allegedly for the purpose of protecting the public from a potential terrorist act or to prevent the provision of support for, or the facilitation of, a terrorist act. Those are the Criminal Code division 104 provisions. Again, these control order regimes—the 'future crime' provisions—were utterly unknown to our law and utterly unknown to our system of checks and balances from a common law tradition, until they were brought into our law in the raft of different laws that came into force in the decade following September 11. The third aspect of the security apparatus that's proposed to be extended to December 2026 is the preventative detention order regime. That allows a person to be taken into custody and be detained for up to two full days—48 hours—if it is suspected on reasonable grounds that they may be preparing to engage in a terrorist act. This is, again, another future crime provision, which, although sitting there in the statute books, has been hardly used at all since it was brought in. Again, these future crime provisions were unknown to our law until the raft of security legislation and counterterrorism legislation that passed in the years following September 11.

A number of stakeholders have made submissions to this bill and to the PJCIS inquiry into it. The bulk of those submissions raise very serious concerns about the three-year extension. At best, they support a limited 12-month extension with detailed justification being provided by the government for the continuation of these powers. Why should there be such detailed justification? I'll go back to the 2005 Senate Legal and Constitutional Affairs Legislation Committee that first looked at these powers when they were being passed. It's important to remember the context of those powers being passed. They were following the horrific bombings in London in July 2005, and there was fear in our community and deep concern with what we'd seen happen in London. In that environment of fear and anxiety, the Anti-Terrorism Act (No. 2) 2005 was rushed through this parliament, and it didn't follow the usual scrutiny process. A rapid drafting of the bill with no external consultation was rammed through a Senate inquiry with a very limited time frame and then brought to the House to be pushed through, because there was that fear driving legislators at the time.

The Senate Legal and Constitutional Affairs Legislation Committee said this in relation to the bill:

Extraordinary laws may be justifiable but they must also be temporary in nature. Sunset provisions ensure that such laws expire on a certain date. This mechanism ensures that extraordinary executive powers legislated during times of emergency are not integrated as the norm and that the case for continued use of extraordinary executive powers is publicly made out by the Government of the day.

That's what they said in 2005, but now it's 2023 and these laws are still on our statute books. The sun has repeatedly been about to set, but every time it's been reset by this parliament to extend these extraordinary provisions, that were intended to be temporary in nature, so that they're almost effectively permanent provisions of our law. They are deeply contrary to longstanding traditions of liberty and freedom of the individual from an excess of state power in our system. Yet here we are again, in 2023, proposing to extend them for another three years, while each of these elements in the system are under serious question and serious scrutiny. And there has not been a justification, apart from a basic, primal fear to support the ongoing provision of any of these laws—particularly the preventative detention order regime and the control order regime.

Other aspects of these same future crime counter-terrorism provisions have been unravelling in real time around us as this happens. The continuing detention order regime, which is a close cousin of these regimes, has fallen into gross disrepute in the last 12 months with the Benbrika case. With the continuing detention order regime, at the expiry of a person's prison sentence, if they've been convicted and sentenced for a terrorism or related offence, there's the ability for state authorities or Commonwealth authorities—depending on who the prosecuting authority was for the original terrorism offence, whether it was a state or Commonwealth offence—to seek continuing detention orders to keep the person in jail after the expiration of their sentence. Again, it's a concept that is anathema to our concepts of rule of law and traditional liberties—keeping someone in jail past the expiration of their maximum sentence based upon concepts of future crime and future threat. This is a future assessment being made by courts or nominated judges—who, for all intents and purposes, appear to be courts—an assessment of future crime being made by our legal system. It's about the likelihood of future offending or of a future offence being committed. As I said, it's an extremely close cousin of the control order regime and, indeed, the preventative detention order regime.

It turns out that the core assessment tool that's being used by Commonwealth authorities and, through the Commonwealth, by state authorities, to justify continuing detention orders is called the VERA-2r assessment tool. A critical review was done of the VERA-2r assessment tool by lead author Dr Emily Corner, and it was found that there was no critical basis for the assessments and conclusions in the VERA-2r assessment tool. Indeed, the report found that the assessment of the likelihood of committing a future offence using the VERA-2r assessment tool—its finding of the probability of future offending—was no better than a roll of the dice or basic chance.

What did the Commonwealth government and home affairs do under the leadership of Secretary Pezzullo and the ministerial control of the now Leader of the Opposition, Peter Dutton? What did they do with the Corner report? They hid it from the court; they refused to give it to the court while the courts were undertaking or reviewing VERA-2r assessments from so-called experts of continuing detention orders, after a continuing detention orders after a continuing detention orders. Dozens of continuing detention orders were made using the VERA-2r assessment tool, purporting to assess the likelihood of future offending and all based on a grossly flawed tool. This was when the prosecuting authorities and the Commonwealth knew that there was a critical report in the hands of the Commonwealth which pointed out that the assessment was no better than chance and they hid it from the court. Again, this was destroying fundamental parts of our historical legal structure meant to defend our individual freedoms—destroying them, in this case, by a conscious decision of the bureaucracy and the complicity of the Department of Home Affairs. It prevented the courts from getting the evidence that showed the tool was not worth the paper it was written on.

What better assessment do we have and what comfort do we have that control orders or preventative detention orders will be based on anything better than that? None. The reason is that our legal system is not designed to chase down future crime. It isn't designed to make predictions about people's future conduct and then hold them in jail or detention based upon predictions of future conduct. That's something that you find in deeply offensive authoritarian regimes. We judge people on what they do and we judge people on what they've done. We don't put people in jail because of the fear of future crime—or we didn't used to until these provisions came into law from 2001, particularly from 2005 onwards.

The Greens note that there are some cosmetic improvements bring brought into these regimes: marginally better oversight and some slightly better reporting. But at the core of this bill is the continuation of a series of detention mechanisms; warrantless stop, search and detain powers for police; and a control order regime that should not form part of our law. The sun should set on these powers; it should set in a few short weeks and they should not be extended to December 2026. For those reasons, the Greens oppose this bill.