Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1) to (6) on sheet 6181 to the National Security Legislation Amendment Bill 2010 together:

(1)    Schedule 1, item 15, page 6 (line 1), after “will”, insert “directly and”.

(2)    Schedule 1, item 15, page 6 (line 3), after “conduct”, insert “directly and materially”.

(3)    Schedule 1, item 15, page 6 (line 30), after “will”, insert “directly and”.

(4)    Schedule 1, item 15, page 6 (line 33), after “conduct”, insert “directly and materially”.

(5)    Schedule 1, item 15, page 7 (line 12), at the end of the heading to subsection 80.1AA(6), add “and conscientious objection”.

(6)    Schedule 1, item 15, page 7 (line 14), after “purposes of,”, insert “conscientious objection or”.

I will speak briefly on the intention of these amendments and then I will seek guidance from the government, or perhaps the opposition, about whether they would like to reconsider their views once they have had some time to absorb what it is that the Greens are proposing. We do support as a whole the amendments proposed by this bill that relate to the offence of assisting enemies at war with the Commonwealth, as it is stated, and assisting countries and so on engaged in armed hostilities with the Commonwealth in proposed section 80.1AA(1)(d) of the Criminal Code. The offences will be narrowed by this bill by the inclusion of the word ‘materially’ prior to ‘assist’ to ensure, as is stated in the explanatory memorandum that the government provided, that only assistance that is real or concrete will be criminalised, which we think is at least a move in the right direction.

We believe, however, that the provision remains too broad because, as stated by the Parliamentary Joint Committee on Intelligence and Security:

… given the seriousness and penalties attached to the offence it is crucial that the law achieves the highest degree of certainty.

This is a theme that I will return to a couple of times this afternoon. Because these offences relate to behaviours that are so serious and contain such risk to life and limb, they attract enormous penalties indeed, so it is very important that we narrow the terms of application to only apply to the kinds of behaviour we intend them to apply to. In this case, I think it is best that we make sure we are speaking very specifically. Certainty is required to ensure that the offence of treason does not impact on the right to freedom of expression, which is contained in article 19 of the International Covenant on Civil and Political Rights. Again I return to one of the themes I will revisit probably during every single one of these proposed batches of amendments, which is that we are not seeking to be soft on terror or on the people who are promoting political violence in our community. We are instead trying to make sure that the law is aimed where it is intended to go and that we do not inadvertently catch political free speech by mistake.

Certainty and a very high threshold are required for this offence, as a maximum penalty is life imprisonment and this could be applied anywhere. So we also support the amendment in section 80.1AA(1)(f), which requires that a person only be found guilty of the offence if they have an allegiance to Australia, which is common sense. But we do question the continuing necessity of this provision, considering that no-one has ever been charged with treason under this legislation. If the government is able to contradict that, I would be fascinated to hear it. This legislation has actually never been used. These sections have never been deployed. No-one has been charged with treason since the 1940s. So, in taking a pragmatic approach and knowing that the offence will most likely remain on the statute books, it could certainly be improved by the following two amendments.

The inclusion of material assistance is, as I said before, a positive amendment, but we do not think it goes far enough and it may still criminalise innocent behaviour, such as that of conscientious objectors and peace activists. I would like to draw the minister’s attention to an incident that occurred in the months leading up to the Iraq war, which was found to be illegal by a large number of international lawyers—and international legal opinion is solidly on the side that in fact we participated in an invasion that was illegal under international law. That notwithstanding, I presume senators can remember a number of Greenpeace activists who swam out to a warship as it was leaving Sydney Harbour and attempted to delay it. I wonder whether the minister would like to give us an idea as to whether she thinks this would be construed as providing material support to an enemy, because on a black-and-white reading of the legislation it would.

If you prevent a warship from leaving harbour on its way to a war, then perhaps you have provided material support to an enemy. I do not believe it is the government’s intention to criminalise this kind of behaviour. I do not think this government, or the previous government, sought to level charges of terrorism against those people in the water. Obviously no violent intent was expressed by those campaigners. They were simply expressing the opinion that was held by the majority of Australians at that time and taking their activities to Sydney Harbour. But on a black-and-white reading of the law, you would have to say that it could be construed as material support to an enemy. So my first question to you, Minister McLucas—and to Senator Parry, if he is offering opinions on behalf of the opposition—is: is it intended to be drafted in this way? Could we not tighten the definitions to make it absolutely clear that we are not seeking to criminalise this type of activity or have it fall into the net of a ‘terror offence’ for which the maximum imprisonment is life?

In its current form it is not clear to the public what type of conduct will be criminalised by this provision; therefore, we believe, as has been proposed by the Castan Centre for Human Rights Law, that only material assistance which is ‘direct’—that is the word we are seeking to insert here—should in fact be criminalised. This will ensure that those who provide weapons, funds and intelligence—and who are therefore directly assisting enemies of the Commonwealth or those at war with the Commonwealth—will in fact be culpable and will be caught under this provision, which I believe is what the government drafters intended. Therefore, we propose that the word ‘direct’ be inserted, and you will see that proposed amendments (1) through (4) go some way towards doing that.

Finally, material assistance whilst forming part of the fault element in this section does not form part of the physical element of the offence in section 80.1AA(e). This is interesting considering the ALRC report Fighting words: a review of sedition laws in Australiawhich I am sure senators in this debate would be very familiar with—recommended that material assistance form part of the physical element of the offence but not part of the fault element of the offence. We believe material assistance should be a requirement for both elements, particularly considering the potential penalty of life imprisonment. We therefore propose ‘directly and materially’ be inserted prior to section 80.1AA(e).

I will leave my comments there and hopefully the minister will enlighten us as to whether she believes that narrowing the definitions in this way, particularly by inserting the word ‘direct’ or ‘directly’ as far as material assistance is concerned, is acceptable to the parliament. I commend amendments (1) through (6) to the Senate.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The coalition will not support these amendments. The key concept here is materiality. Given that materiality is required to constitute the offence of treason, we see no need to insert the word ‘direct’. Indeed, it is our view that if assistance is material, even though it be indirect, it ought to be caught within the definition of the offence.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Senator Ludlam, I would just like to confirm that I am wrapping the debate around these amendments you have moved at this point.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Minister, I would prefer that you did not close the debate unless you have some remarkable answers to the questions that I put to you. So, if possible, I will seek to have the final word before the amendments are put.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

The question comes to balance. I think in my summing up speech I made the comment that the government has sought to find that balance through the passage of these two bills. Also, by way of a general comment, I think it is important to recognise that the Australian Law Reform Commission considered the questions that you are legitimately raising here and came down on the side of the legislation as proposed by the government.

You made a point in your earlier comment that the legislation has not been used since, I think you said, 1940. I took from that that that means it is not required. I do not know that you can necessarily make that jump. The fact that the legislation has not been used does not necessarily mean it is not required or desirable. In many cases—and potentially in this case as well—the deterrent effect of a piece of legislation is important and very effective. I will go to other questions that you have put in front of us subsequently.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

What I would put to you—and Senator Brandis, if he would care to offer a view—is the case that I put earlier of a vessel attempting to leave Sydney Harbour that was stopped for quite a period of time by antiwar campaigners. We know that they did not intend violence. You could also probably argue that they certainly did not intend to materially assist a foreign power in which we were about to engage in an occupation and invasion. But the fact is that the departure of a warship or an asset such as that, an aircraft leaving an airbase or troops leaving an Australian base could quite coherently have an argument put that delaying or hindering the departure of such assets into a war zone could be considered as material support for an enemy. Somebody please correct me if I am wrong, but I do not believe it is the view of anyone in this parliament that that act should be construed as an act of terrorism, but with my reading of the way that the act stands at the moment—and the government has done nothing to clarify this matter in the bill apart from a slight narrowing of the definition of ‘material support’—I still do not understand why the government or the opposition would not support these amendments. Could I get a view either from the minister or from Senator Brandis as to whether delaying the departure of, for example, military equipment or troops to a war zone could be construed as material support. This is not something that we have invented; this is something that has been made in submission after submission. The definition is indeed too broad.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The case you have posited involves an essentially innocent act of civil protest, albeit in circumstances of what I suppose might be described as aggravated nuisance. The fact that the object of the protest was a warship, in those circumstances, I would not imagine constitutes an offence. I think it would be straining argument beyond its capacity to bear to say that that would constitute conduct prohibited by the section. If the warship or asset were required to be deployed in time of war then that may very well be a different case, but I think to interfere with the deployment of an asset in time of war is something which ought to be caught by the offence provision. But, beyond that exceptional circumstance, I do not think the case you have posited would attract the operation of the provision.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Your question is whether the bill will criminalise a legitimate political protest by conscientious objectors. I can advise that the bill is neither intended nor designed to pick up activity that is not about materially assisting the enemy. It would only pick up serious criminal behaviour. I then extrapolate from that to say that this would not apply, therefore, to peaceful protest activities such as what you have described. If you go to the section of the legislation, I think it is very clear that in the words and in the intent of the legislation it is not designed to disrupt what is legitimate protest—legitimate behaviour of people who are using their democratic rights to make the political point they want to make. This is not designed to pick up that sort of behaviour. It goes to the question of materiality.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I will not tie us up any longer with these amendments except to point out, perhaps for Senator Brandis’s benefit unless I have misinterpreted his comment, that the vessel in question was the HMASSydney. She was attempting to leave Sydney Harbour in April of 2003, sailing for the Persian Gulf during the invasion of Iraq. We were, in fact, at war. So, unless you want to clarify your comments, I offer that by way of clarification. This was not an idle protest action to make an abstract point; the vessel was sailing to support an invasion that the majority of Australians opposed. I will take the minister’s comments in the spirit in which they are intended and hope that, should this point ever come to be the point of conflict in court, the court will see fit to come back to the debates and establish that this kind of conduct is absolutely not what the government intended to be caught. I will not be calling a division unless it appears that the numbers will be more finely balanced than five against everyone. I submit these amendments to the Senate now.

Question negatived.

The second batch of amendments to the National Security Legislation Amendment Bill 2010, also on sheet 6181, relate to amendments (7) to (15). They all relate to the sedition provisions which will henceforth be known as ‘urging violence offences’. So this is sedition and antivilification in particular. There is a range of different proposals, but they all share the common theme of relating to sedition offences. We question the necessity of maintaining urging violence offences which require an element of a threat to the Commonwealth. These offences were previously known as sedition and, as the last Commonwealth sedition trial was in 1953, we have to go back a long time to find these laws actually being used in anger. There was an unsuccessful prosecution attempt against three members of the Communist Party and I hold that it is debatable whether these offences are necessary in a healthy democratic system such as Australia’s.

Nonetheless, in principle we support the criminalisation of targeting identifiable and vulnerable groups in Australian society as these offences do not rely on a link to the Commonwealth. The need to protect certain groups should be balanced carefully with the right to freedom of expression to ensure that there are not undue restrictions on legitimate political communication. We do, however, have concerns with section 80 as the government appears to be confusing the very distinct concepts of sedition and vilification. This was raised numerous times with the committee and it was canvassed in the committee’s report. The operation of sections 80.2A(1) and 80.2B(1) would be improved by adding the words ‘is intended to’ prior to ‘threaten’—this is amendment (7)—rather than the current reading which is ‘would threaten the peace, order and good government of the Commonwealth’. Currently, there is a requirement that there be an intention to urge a group or a person to use force against a targeted group or person and that it must be intended that force or violence will occur.

The threat to the Commonwealth, however, does not have to be intended but merely needs to occur. Therefore, the threat to the Commonwealth is conjunctive rather than determinative and, for this reason, there is a risk that the current provision may capture conduct that only incidentally threatens the Commonwealth. So, if these two sections are intended to be sedition offences and to protect the interests of the Commonwealth, they should be drafted towards this end. The Commonwealth is the possessor of constitutional authority and, as stated by Dr Katharine Gelber, it is essential that people are able to criticise, even vehemently criticise, the possessor of constitutional authority. The offences are subject to a maximum penalty of seven years imprisonment and therefore, given the serious penalty, the offence should be more closely linked with a threat to the Commonwealth. I think senators can see where this is going.

Our second concern is the placement of sections 80.2A(2) and 80.2B(2) within the legislation. The offences are placed in chapter 5 of the code which is entitled ‘The security of the Commonwealth’. There seems to be confusion—and it should not really have come to the committee stage of the debate to sort this out—by the government between the very different concepts of sedition and vilification in relation to these two offences. These are offences that you could argue properly belongs within the category of terrorism related offences—if they pose a violent threat to the Commonwealth then certainly they should be—and others which more properly belong in antivilification legislation or sections of the Criminal Code.

Sedition is an expression against the constitutional authority which should be able to handle a high degree of criticism as part of a healthy democratic system. In contrast, vilification is the expression against a vulnerable or marginalised group and, therefore, the level of criticism should not be the same before constituting a criminal offence as vilification offences are designed to protect the vulnerable and marginalised. The urging violence offences in sections 80.2A(2) and 80.2B(2) should therefore be relocated to chapter 9 of the code which is entitled ‘Dangers to the community’. We are drawing a fairly clear distinction that vilification offences are extremely serious, but they are not terrorism and I think there should be a different burden of proof and perhaps different offences should accrue. They certainly should not be all bagged together in this ever-broadening definition of what is considered to be a terrorist act.

Our reasoning for this shift is based on three grounds. Firstly, community support for antivilification offences may be hindered as the community may perceive the offences to be a restriction of freedom of expression put in place for the protection of the Commonwealth rather than for the protection of identifiable and vulnerable individuals and groups. Secondly, the placement of these offences may confuse police and they may shy away from charging a person who may act in a manner in breach of antivilification provisions due to the fact that the conduct does not, in fact, threaten the Commonwealth. So we can see the danger in conflating these two very different kinds of offences. Finally, enacting legislation that includes antivilification offences under the guise of counterterrorism legislation may be counterproductive and further vilify vulnerable groups in the community, such as Australian Arabs and Muslims who already experience vilification on the basis that they supposedly share some responsibility for terrorism.

Our third amendment in this bracket concerning urging violence offences is the removal of political opinion and religion as identifiable grounds under the two sections that we are discussing, 80.2A(2) and 80.2B(2). Again, these will be very familiar to anybody who participated in the committee debates and the very long process of consultation. Firstly, the inclusion of political opinion extends beyond Australia’s obligation under article 20 of the International Covenant on Civil and Political Rights to criminalise vilification. The ICCPR requires that only vilification on the basis of nationality, race or religion be criminalised. Freedom of speech on the basis of political opinion should be protected to a very high degree as the Australian constitutional protection of freedom of political communication is only applied in quite limited circumstances. The inclusion of political opinion is also inconsistent with all state and territory antivilification laws. Secondly, whilst I think the inclusion of religion is consistent with Australia’s obligations under the ICCPR, it is not in line with the International Convention on the Elimination of All Forms of Racial Discrimination, the ICERD, upon which our Racial Discrimination Act 1975 is based.

The inclusion of religion is also inconsistent with the majority of state and territory antivilification laws. So the removal of these two grounds would ensure that the balance is tipped back in favour of robust political debate, particularly where issues of political opinion and religion are often entwined. We also believe that the antivilification offences could be strengthened by requiring that force or violence only be reasonably likely to occur rather than intended to occur. We would change the burden in that direction with regard to antivilification offences given that they are targeted against vulnerable groups. The reason is that it is difficult to foresee a situation in which someone urges a group or a person to use force or violence against another person or group but somehow does not intend for that force or violence to occur.

Finally, we propose that two new clauses be included to take into account the context in which the acts were carried out. That was recommended by the Australian Law Reform Commission as long ago as in the final words of the Review of Sedition Laws in Australia document, which goes back some years now. It was stated by Associate Professor Ben Saul that the current defence of statements made in good faith may not be as wide as first appears. Associate Professor Saul argues that the range of human expression worthy of legal expression is much wider than that these narrowly drawn exceptions which appear more concerned about not falling foul of the implied constitutional freedom of political communication than about protecting speech as being inherently valuable. The new provisions would require the court to consider whether the acts were done in the development, performance, exhibition or distribution of an artistic work; in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or in the dissemination of news and current affairs. One or more of these factors will assist the court in determining when to criminalise certain expression and ensure that freedom of expression is not curtailed except where absolutely necessary. I am hoping that senators can see that there are a range of different proposals there. I am hoping that senators can see, particularly with those last ones, that there are very broad categories of speech that should be protected beyond the merely political, including the list that I have just enunciated.

I will be very interested to hear any contributions from either side of the house. But I think these are a pretty moderate attempt to go some way towards moderating the existence of the sedition laws on our books, because, as it is, the government is proposing to change the name but not a great deal in substance will actually change if this bill passes unamended.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Let me deal briefly with the different categories of amendments which Senator Ludlam has foreshadowed. First of all, the amendments that would omit the word ‘would’ and substitute the words ‘is intended to’ in clauses 80.2A(d), 80.2A(1)(d) and 80.2B(1)(d) would, with respect to Senator Ludlam, disregard the distinction which the common law draws between the intention for which conduct is engaged in and the consequences of the conduct which are foreseeable. The intention element in each of those two sections is supplied in subclauses 1A and 1B so that there must be an intentional urging of the use of force or violence against a group and there must be an intention that the force or violence will occur. That being the relevant state of mind, it seems to the opposition sufficient to satisfy the mens rea for that offence and, if the consequence of urging force or violence is that it would threaten the peace, order and good government of the Commonwealth, we do not see that it is necessary to require an additional mental element to intend to threaten the peace, order and good government of the Commonwealth. That is a natural consequence of the urging of force or violence with the prohibited state of mind.

In relation to the provisions of clause 80.2A and 80.2B, particularly in relation to the latter, I think, Senator Ludlam, that your criticism, as I understand it, was that provisions of this kind would more naturally be seen in anti-vilification laws. But then you go on to say that we should omit religion and political opinion from the categories which distinguish the protected group, because it is not appropriate that they be included in anti-vilification statutes. That seems—if I may say, with respect, Senator Ludlam—something of a circular argument. The whole point of these prohibitions is to prohibit the urging of force or violence against targeted groups which include groups identified or distinguished by, among other things, their religion and political opinion. That is what sedition-like provisions do. They are provisions designed to protect members or elements of the body politic from force or violence for the prosecution of political ends under the bogus claim of merely being the expression of opinion.

In any event, with regard to even those distinguishing characteristics that you would leave unamended—that is, race, nationality and national or ethnic origin—those three categories are not necessarily descriptors of marginalised or vulnerable groups. I believe that it is entirely proper that a law which is the successor to sedition laws should protect groups within society distinguished by race, nationality and national or ethnic origin whether they be a marginalised minority—for example, a race or a nationality which might have very few members in the Australian community and might be thought to be marginalised and vulnerable—or whether it may be a race which has many, many members, millions of members, within the Australian community which could, on no view, be regarded as a marginalised or vulnerable group within society but nevertheless is entitled to be protected from those urging force or violence against it.

I remember that in the 1970s, in particular, in Australia there was within the Yugoslavian population a great deal of activity of this kind between Croatian people and people from elsewhere in Yugoslavia who on the European continent had historically been their enemies, and that was transported to Australia. I think that the Yugoslavian people on one side of that dispute were such a large body of good citizens of Australia that it would be stretching meaning to say that they were a marginalised or vulnerable group. Nevertheless, they were a group which was entitled to have the benefit of the protection of the criminal law against politically motivated force or violence against them. I think we could think of many other examples of that as well.

So with respect, Senator Ludlam, I think you make what is sometimes described as a ‘category error’ when you say that this should apply only to vulnerable and marginalised groups. I think it should apply to precisely the kinds of defined groups to which subsection (d) and each of the relevant sections are directed, and that includes religion and political opinion. I am a proud member of the Liberal Party, as you are a proud member of the Australian Greens. I do not think either of us belongs to vulnerable or marginalised groups in terms of political opinion, but in the expression of our political opinions we are entitled to be protected from people urging force or violence against us by reason of that identifying characteristic. That is the purpose of these laws, and I think the way they are drafted is completely fit for that purpose.

I turn lastly to what I think was your third main point, the proposed inclusion of a defence in proposed section 4A and each of these relevant subsections if:

… the conduct that constituted the offence occurred:

(a)

in the development, performance, exhibition or distribution of an artistic work; or

(b)

in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)

in the dissemination of news or current affairs.

A defence covering all of those spheres of activity might be a perfectly appropriate defence if these offence-creating provisions were concerned with the expression of opinion. That, I think was your premise. But these provisions are not concerned with the expression of opinion. They all operate upon a person urging force or violence against a targeted person, intending that that force or violence occur. I must say with all due respect that it passes my understanding how the urging of force or violence against a targeted group with the intention that that force or violence should take place could ever be excused on the basis that it, for example, involved the development of an artistic work or was in the course of the publication of an academic opinion or the dissemination of news or current affairs. The offence-creating provisions criminalise acts of violence against targeted groups, and it is, with respect, a bogus freedom of speech argument to suggest that the urging of violence against groups could ever be exculpated by any of the activities in the various spheres identified by your proposed amendment. So, for that reason, with all due respect we think it is an absurd amendment and we oppose it as well.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I will go first of all to the question of religious and political grounds in the ‘urging violence’ offences. The ‘urging violence’ offences are complementary to existing antivilification laws. Further, they extend those laws by outlawing the targeting of groups and members of groups distinguished by race, religion, nationality, national or ethnic origin, and political opinion. The ALRC noted concerns about the inclusion of those elements—political opinion and religion. While these would normally fall within protected free speech, the Law Reform Commission were not convinced that the concerns were persuasive in relation to an offence that seeks to protect a religious or political group from being subjected to force or violence, and the government agrees with the conclusion from the Law Reform Commission.

I go to the question of substituting the phrase ‘is intended’ in the definition of urging violence, as proposed by the Greens amendments. This would make the offence very difficult to prosecute. Its effect would be to make it easier for an individual to urge others to engage in violence and escape prosecution. Replacing the formulation ‘would threaten the peace’ with ‘is intended to threaten the peace’ would significantly increase the evidentiary burden for the prosecution. The government believes that the current formulation in the bill strikes the right balance.

I then go to amendments (10) and (14), which go to the ‘artistic endeavours’ question. It is the government’s view that this is not a necessary set of amendments. The question is already covered by the good faith defence in section 80.3 of the Criminal Code, which the government proposes to expand to explicitly recognise the matters identified in the amendment. The ‘urging violence’ offences in the bill are subject to the good faith defence at section 80.3 of the Criminal Code. Some have suggested that the good faith defence does not apply to situations such as a positive portrayal of a suicide bomber in a painting or a play. This proposition ignores the fact that a positive portrayal could be for many reasons, and the prosecution must prove beyond reasonable doubt that the painter or playwright intended to urge the use of force or violence or intended to assist an enemy of Australia. It is only when proof of intent is possible that the defence becomes relevant.

The good faith defence would be available to those making a political point to do so within the government’s policies. The amendments suggested by the Australian Greens suggest adding new defences relating to artistic works, statements and public affairs. Adding special defences for artistic, educational and journalistic works is unnecessary as legitimate artistic, educational and journalistic works are already covered by the existing section 80.3 of the Criminal Code.

The danger with using special defences is that terrorists will attempt to use education of the arts and journalism to justify their conduct. It is also important to remember that the offences only cover conduct that intentionally urges violence. I hope that I have addressed the questions that you raised.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

In some way, Minister. I will keep my remarks very brief and then move on.

We had a very interesting discussion just now about the need for anti-vilification legislation and its importance, whether it is against a minority group or not. But at no stage, Minister, have you addressed the question or the amendment that we have proposed at No. 15, that these offences simply fall in the Criminal Code with anti-vilification offences and that we do not need to contemplate them as acts of terrorism. I hoped that one of the intentions of moving one of those amendments, particularly No. 15, was that these amendments are simply in the wrong place. We are conflating—I think quite dangerously—terrorism related offences which give rise to harm to the Commonwealth, or a threat to the Commonwealth or to the government of Australia, and anti-vilification offences, which I agree are extremely important for protecting groups, whether they be marginalised or not, from violence or threats of violence.

I still do not quite understand the government’s intention or the opposition’s support for conflating them and keeping them in the same place. All that our amendment 15 was doing was actually repositioning these offences within the Criminal Code. I just wonder whether you would like to address that question briefly, Minister?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I apologise, Senator, for not addressing it in my earlier contribution.

The government believes that the offences you refer to are appropriately located in chapter 5 of the Criminal Code, which deals with the security of the Commonwealth. As you would be aware, the explanatory memorandum was amended to explain further why this is the case.

The urging violence offences criminalise the urging of force or violence, and while the offences in section 82A and 82B in effect condemn ethno-racially or religiously motivated discrimination, they are serious criminal offences that target conduct that has the potential to impact on the security of the Commonwealth. The offences have been carefully drafted to capture conduct that is criminally culpable. I hope that this is of assistance.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Australian Greens amendments (7) to (15) on sheet 6181 together:

(7)    Schedule 1, item 35, page 11 (line 21), omit “would”, substitute “is intended to”.

(8)    Schedule 1, item 35, page 11 (line 25) to page 12 (line 6), omit subsections 80.2A(2) and (3), substitute:

        (3)    The fault element for paragraph (1)(c) is recklessness.

Note:   For recklessness, see section 5.4.

(9)    Schedule 1, item 35, page 12 (line 13), omit “subsection (2)”, substitute “subsection 290.1(1)”.

(10)  Schedule 1, item 35, page 12 (after line 6), after subsection 80.2A(3), insert:

     (3A)    It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

             (a)    in the development, performance, exhibition or distribution of an artistic work; or

             (b)    in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

             (c)    in the dissemination of news or current affairs.

Note:   A defendant bears an evidential burden in relation to a matter in subsection (3A). See subsection 13.3(3).

(11)  Schedule 1, item 35, page 12 (line 32), omit “would”, substitute “is intended to”.

(12)  Schedule 1, item 35, page 13 (lines 3 to 20), omit subsections 80.2B(2), (3) and (4), substitute:

        (3)    For the purposes of paragraph (1)(c), it is immaterial whether the targeted person actually is a member of the targeted group.

        (4)    The fault element for paragraph (1)(d) is recklessness.

Note:   For recklessness, see section 5.4.

(13)  Schedule 1, item 35, page 13 (line 27), omit “subsection (2)”, substitute “subsection 290.2(1)”.

(14)  Schedule 1, item 35, page 13 (after line 20), after subsection 80.2B(4), insert:

     (4A)    It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

             (a)    in the development, performance, exhibition or distribution of an artistic work; or

             (b)    in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

             (c)    in the dissemination of news or current affairs.

Note:   A defendant bears an evidential burden in relation to a matter in subsection (4A). See subsection 13.3(3).

(15)  Schedule 1, Part 2, page 14 (after line 5), at the end of the Part, add:

38  Before Part 9.1 of Chapter 9 of the Criminal Code

Insert:

Part 9.1A—Urging violence against groups in the community

290.1  Urging violence against groups in the community

        (1)    A person (the first person) commits an offence if:

             (a)    the first person intentionally urges another person, or a group, to use force or violence against a group (the targeted group); and

             (b)    force or violence is reasonably likely to occur; and

             (c)    the targeted group is distinguished by race, nationality or national or ethnic origin.

Penalty:  Imprisonment for 5 years.

Note:   For intention, see section 5.2.

        (2)    The fault element for paragraph (1)(c) is recklessness.

Note:   For recklessness, see section 5.4.

        (3)    It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

             (a)    in the development, performance, exhibition or distribution of an artistic work; or

             (b)    in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

             (c)    in the dissemination of news or current affairs.

Note:   A defendant bears an evidential burden in relation to a matter in subsection (3). See subsection 13.3(3).

290.2  Urging violence against members of groups in the community

        (1)    A person (the first person) commits an offence if:

             (a)    the first person intentionally urges another person, or a group, to use force or violence against a person (the targeted person); and

             (b)    force or violence is reasonably likely to occur; and

             (c)    the first person does so because of his or her belief that the targeted person is a member of a group (the targeted group); and

             (d)    the targeted group is distinguished by race, nationality or national or ethnic origin.

Penalty:  Imprisonment for 5 years.

Note:   For intention, see section 5.2.

        (2)    For the purposes of paragraph (1)(c), it is immaterial whether the targeted person actually is a member of the targeted group.

        (3)    The fault element for paragraph (1)(d) is recklessness.

Note:   For recklessness, see section 5.4.

        (4)    It is a defence to a prosecution of an offence against subsection (1) that the conduct that constituted the offence occurred:

             (a)    in the development, performance, exhibition or distribution of an artistic work; or

             (b)    in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

             (c)    in the dissemination of news or current affairs.

Note:   A defendant bears an evidential burden in relation to a matter in subsection (4). See subsection 13.3(3).

Question negatived.

by leave—I move Australian Greens amendments (17) to (20) on sheet 6181 together:

(17)  Schedule 2, page 15 (before line 8), before item 2, insert:

1A  Paragraphs 102.1(1A)(a) and (b) of the Criminal Code

Repeal the paragraphs, substitute:

             (a)    the organisation directly counsels or urges the doing of a terrorist act; or

             (b)    the organisation directly provides instruction on the doing of a terrorist act.

(18)  Schedule 2, item 2, page 15 (lines 8 and 9), omit the item, substitute:

2  Paragraph 102.1(1A)(c) of the Criminal Code

Repeal the paragraph.

(19)  Schedule 2, page 15 (after line 20), after item 4, insert:

4A  After subsection 102.1(2) of the Criminal Code

Insert:

  (2AA)    For the purposes of being satisfied on reasonable grounds under paragraph (2)(b) that an organisation advocates the doing of a terrorist act, the Minister must have regard to whether:

             (a)    the person advocating a terrorist act is the leader of the organisation;

             (b)    the advocacy is in any official material distributed by the organisation;

             (c)    the advocacy is accepted or rejected by other members of the organisation as representing the views of the organisation;

             (d)    the organisation has any other involvement in terrorism;

             (e)    the person advocating terrorism did not intend for a terrorist act to be committed.

(20)  Schedule 2, page 15 (after line 20), after item 4, insert:

4B  After section 102.1 of the Criminal Code

Insert:

102.1AA  Review by the Administrative Appeals Tribunal

        (1)    An application may be made to the Administrative Appeals Tribunal for review of a decision to specify an organisation by regulations made for the purposes of paragraph (b) of the definition of terrorist organisation in section 102.1.

        (2)    The regulations may prescribe the procedures to be followed by the Tribunal in considering an application under subsection (1).

Under section 102.1 of the Criminal Code the government may proscribe a certain organisation as a terrorist organisation. As drafted by the government, the bill extends this proscription period for such organisations from two to three years. We do not oppose this amendment in principle but we do believe that it should be subject to important safeguards.

Being proscribed as a terrorist organisation carries serious repercussions for the organisation, its members and outsiders for good reason. For example, the offences for being a member of a terrorist organisation, supporting a terrorist organisation and receiving training from or providing training to a terrorist organisation carry penalties ranging from 10 years to life imprisonment.

Due to the serious repercussions that flow from being proscribed, as well as the extension of the proscription period, we believe this power should be counterbalanced to ensure that the process is accountable. It is not to undermine the process where we do proscribe such organisations, but just to be very aware of the very serious nature of the offences that arise once you have been proscribed. We believe there need to be some checks and balances in the system to ensure that we are, in fact, correctly targeting the kinds of organisations that most Australians would find repugnant but that we are not catching innocent groups or innocent people up in the net.

For this reason, we believe that there should be an opportunity for organisations that are proscribed as terrorist organisations to appeal the merits of the decision under the Administrative Appeals Tribunal Act 1975. I do not think that this is necessarily going to be a live issue for most of the groups that we are probably contemplating—those that most people consider from reports in the media to be terrorist organisations. But I want to consider, perhaps, how we may have treated an organisation supporting the ANC during the anti-apartheid movement in South Africa, or even—to pick an example closer to home—the activities of Fretilin and the activities of people in Timor who, at the time, were conducting an armed resistance against a government that the Australian government considered lawful. Quite reasonably we could have considered people supporting Timorese freedom fighters in Timor-Leste as terrorists and they could therefore have been proscribed, and this range of offences could have been activated. We believe that, effectively, it is very important to take care, given that sometimes a situation probably does seem very black-and-white but that there are very serious shades of grey.

In regard to the grounds for the proscription of a terrorist organisation, we believe that the bill’s amendment to section 102(1A) of the code is an improvement as it clarifies that the organisation may only be listed if it directly praises the doing of a terrorist act in circumstances where there is a substantial risk of leading a person, regardless of their age or their mental impairment, to engage in a terrorist act. So there is some improvement and, we believe, some tightening to the definitions that has occurred here. But it is our view that this minor amendment does not go far enough as the definition of ‘advocates’ in that same section 102.1(1A) is too broad and may restrict legitimate political dissent and therefore be in breach of Australia’s obligations under article 19 of the ICCPR to ensure that right to freedom of expression.

Under subsection 102.1(2)(b) an organisation may be listed as a terrorist organisation if he or she is satisfied that the organisation ‘advocates the doing of a terrorist act’. We believe that proscribing an organisation on the basis that it advocates the doing of a terrorist act is very wide and goes beyond the usual criminalisation of incitement to commit a criminal act. It is also potentially in breach, as I have said, of article 19 of the ICCPR which protects freedom to express legitimate political views. If advocacy is to remain as a ground for proscribing terrorist organisations—and the government clearly believes that it should—then this should be narrowed, we believe, in two ways. Firstly, in subsections (a) and (b) of the definition remove the term ‘indirectly’ so that only directly counselling, urging or instructing terrorist acts to occur attracts criminal liability. I think that would be an appropriate redrawing of that boundary. Secondly, subsection (c) of the definition, which relates to the praising of a terrorist act, should be repealed as such an act is too tenuous a link with the actual committal of a terrorism offence. This would implement recommendation 9 of the Sheller report.

Finally, if advocating the doing of a terrorist act is to remain a criminal offence, there is a need to clarify situations in which an individual or a small group of individuals within a group advocate the doing of such an act as opposed to the organisation as a whole which may favour non-violent means to have their message heard. To provide some concrete examples, there is real concern that proscribing an organisation that advocates the doing of such an act may result in the proscription, for example, of an organisation where the person who praised the act is not the leader of the group or organisation, the statement is not an official material distributed by the organisation, the statement is not accepted or may even, in fact, have been rejected by other members as representing the views of the group, the organisation may have no involvement or no other involvement in terrorism and the person praising such acts did not intend for an act to be committed. Adding to this concern are statements in the EM that advocates include all type of communication, commentary and conduct. Part of the amendments that we are putting to you go to that ability for review and the ability for a group to make its case. If that appeal is not accepted then so be it, but we believe, as I stated at the outset for the reasons there, that people who would find themselves within a proscribed group and who face a very serious range of potential surveillance and so on and potentially very serious imprisonment should at least have the right of appeal if this group finds itself on the proscription list, particularly if we are extending the period from two to three years. I commend these amendments (17) to (20) to the Senate.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition opposes these amendments because we regard them in each case as an undesirable weakening of the scope of the existing terrorism laws. Amendment (17) would repeal from the existing provisions of the Criminal Code and from the definition of advocacy of a terrorist act in each case the word ‘indirectly’. We are of the view that either the direct or indirect counselling or urging of the doing of a terrorist act or providing instruction on the doing of terrorist act respectively as the provision currently provides for is appropriate. Not all invidious conduct is direct and for that reason indirect conduct should in our view continue to be caught.

Amendment (18) would repeal from the Criminal Code the offence of praising the doing of a terrorist act where there is a risk that such praise might have the effect of leading a person to engage in a terrorist act. We know—and this is a decision that the legislature made when these provisions were inserted, I think, in 2005—that one of the most insidious ways in which terrorism may be promoted and almost glorified is for the conduct of terrorists to be characterised as martyrdom or some other glamorous form of activity when in fact terrorism is nothing but murder, murder for political motivation but murder nevertheless. In these circumstances the existing act, in order to try in every possible way to stop at the source the spread of, in certain communities or populations, an attitude of tolerance or acceptability to terrorism, was in my view quite right to include praising terrorism as within the category of advocacy offences.

In relation to amendment (19) the proposed insertion of guidance for the reasonable grounds for the minister to be satisfied that an organisation advocates doing a terrorist act I must say with respect, Senator Ludlum, I do not think any of those five criteria the amendment proposes are of themselves bad. I think those are the kinds of matters the minister would be bound to have regard to as well—and indeed other criteria which are not listed in your proposed amendment. I think where there is a ministerial discretion vested by an act of parliament and the minister is required to be satisfied of certain statutory criteria on reasonable grounds, it is often bad practice to be too prescriptive in directing the minister’s mind as to what is or is not to be had regard to in forming his conclusion. The two issues that matter are whether the minister addresses his mind to the object of his statutory power and whether his process of decision making is reasonable. Having a prescriptive but by no means exhaustive list of those matters is often more unhelpful than helpful in allowing the minister to come to an appropriate decision.

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting on Deregulation) Share this | Link to this | Hansard source

In the very brief time I have available—I am sure that whoever takes over from me after dinner will want to extend these remarks—I agree with the shadow Attorney-General, Senator Brandis, that to remove in amendment (17) ‘indirectly’ from the paragraphs of the definition of ‘advocates’ would mean that organisations could potentially avoid being proscribed.

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

The committee is considering the National Security Legislation Amendment Bill 2010 and amendments (17) to (20) moved by Senator Ludlam. The question is that the amendments be agreed to.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

As I understand it, we are dealing with removing ‘directly’ from the definition of ‘advocates’ for the purposes of listing organisations. I think this matter might have been commenced just prior to the break for dinner, so there will be as little duplication as I can manage. This is a provision that will remove ‘directly’ from the paragraphs giving the definition of ‘advocates’. It would mean that organisations could potentially avoid being proscribed as terrorist organisations if they were careful to avoid directly counselling or urging or directly providing instruction on the doing of a terrorist act. It is possible that an organisation could indirectly provide instruction on the doing of a terrorist act or indirectly counsel or urge the doing of a terrorist act by drawing attention to material from other organisations or endorsing other organisations that counsel, urge or provide instruction on the doing of a terrorist act.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

There are a few different matters raised in amendments (17) to (20). Among them is the real effect of what we are trying to discuss. Hopefully, we will move the debate forward somewhat. Given the seriousness of the offences that you can be accused of if you are indeed seen to be counselling or urging a terrorist act, we are simply seeking to narrow the range of factors that could be considered to be advocating terrorism. I just wonder, Minister, whether you would be able to give us some examples and put on record for us the factors that the minister will have regard to when deciding to proscribe a terrorist organisation. I think the government and the opposition are also seeking to jointly oppose the proposition that there be some means of appeal once you find yourself on this list for a period of three years—during which you, your family, everyone you associate with, everybody you make a telephone call to or everybody who calls you can be subject to an extremely severe range of not only penalties but also quite serious surveillance. I just wonder whether you could give some examples of exactly what factors the minister will have regard to when deciding to proscribe a terrorist organisation, if the matters that I have raised here are not deemed to be sufficient or appropriate.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

To your proposed amendment (20), concerning the insertion of an AAT review mechanism for the listing of terrorist organisations, I have the following response. The Parliamentary Joint Committee on Intelligence and Security considered whether merits review by the Administrative Appeals Tribunal should be available in its inquiry into the proscription of terrorist organisations under the Australian Criminal Code, the report of which was tabled on 20 September 2007. The committee concluded that merits review was not necessary. Regulations listing organisations as terrorist organisations currently expire after two years. This bill would amend that to a three-year period. This provides for regular review and reassessment as to whether an organisation continues to meet the definition of a terrorist organisation. Adding a process of merits review would lead to uncertainty and the potential for rolling reviews of listing decisions. Listing regulations are disallowable instruments and are subject to parliamentary scrutiny and disallowance. The Parliamentary Joint Committee on Intelligence and Security reviews listing decisions and recommends to parliament whether listing regulations should be disallowed. Additionally, a person or organisation can make an application to the Attorney-General to delist an organisation at any time. Judicial review is also available under the Administrative Decisions (Judicial Review) Act 1977. I am also advised that subsections (2)(a) and (2)(b) provide you with some comfort on this point.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Could you just repeat the section.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

It is sections 102.1(2)(a) and 102.1(2)(b).

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

For the benefit of the record, Minister, can you just describe what that means, what that does. We are now in the middle of the debate and we may not get this opportunity for another couple of years. Could you tell us how you think that meets the concerns we are raising in this part of the debate.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Would it be of assistance if I read the section or do you simply want me to go to articulating—

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

That is fine.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Senator, (2)(a) and (b) go to the fact that there is a definition of ‘terrorist organisation’ and that the minister must be satisfied on reasonable grounds that the organisation is ‘directly or indirectly engaged in, preparing, planning, assisting in or fostering’ terrorist acts. I will not read the whole section. But I understand that the non-statutory criteria that the advice to the Attorney-General then depends on go to questions of an organisation’s engagement in terrorism, its ideology and links to other terrorist groups or networks, its links to Australia, its threats to Australian interests, its proscription by the UN or like-minded countries—obviously, how it behaves in other jurisdictions—and its engagement in peace or mediation processes.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Minister. Just so the minister is aware—he was not at the table earlier when we were discussing these matters—what we are seeking to do is actually somewhat different. We have no intention of meddling with the definition that you just read out, Minister, from (2)(a) and (b). What we are seeking to do is to make sure that people are not inadvertently taking credit for material that may not represent the views of the organisation or are not people whose views the organisation represents. These are the matters that I was discussing earlier. Do we know that the person advocating the act is the leader or is representative of that organisation? I would have thought these were the sorts of matters where it would not do any harm—in fact, it would do quite substantial good—to guide the discretion of the minister when considering this, given how long organisations are going to be listed and given that the government is refusing to allow any process of review. However, I think we have canvassed these issues, and the chamber is well aware of what we are proposing. I would ask you, Madam Chair Fisher, to put the amendments to a vote.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Before we go to that point, it is probably appropriate for me to put some other comments on the record in relation to Senator Ludlam’s amendments (18) and (19). I apologise for not having raised these at an earlier juncture.

With respect to Greens amendment (18), it is the government’s position that that amendment would remove the element to do with an organisation that ‘directly praises the doing of a terrorist act’ from the definition of ‘advocates’ and, further, that the amendment to this provision in the bill, which will provide that such praise will only constitute advocacy if there is a substantial risk that it will lead a person to engage in a terrorist act, responds to concerns raised about this provision and ensures that it does not have an unintentionally broad effect.

With respect to Australian Greens amendment (19), it is the government’s position that that amendment is not necessary. The question of whether an organisation advocates the doing of a terrorist act is a question of fact to be determined in the light of the relevant circumstances of each case. Where one or more individuals who are members of the organisation advocate the doing of a terrorist act, consideration must be given to whether the actions of those individuals constitute actions that can be attributed to the organisation itself. Lastly, in determining whether an organisation advocates the doing of a terrorist act, all relevant information would be taken into account, including but not necessarily limited to the matters outlined in your amendment (19), Senator Ludlam.

Question negatived.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I will now backtrack to Greens amendment (16) on sheet 6181, which relates to materials that are refused classification. I move:

(16)  Schedule 2, item 1, page 15 (lines 5 and 6), omit the item, substitute:

1  Section 9A

Repeal the section.

We support the proposed amendment to section 9A(2)(c), the inclusion of the word ‘substantial’ before ‘risk’ for the purposes of the definition of ‘advocates’, as we have just been discussing in relation to the proscription of a terrorist organisation. However, the provision remains flawed as it does not rely on the reasonable adult test on which Australia’s classification regime has traditionally been based. I put this question to the minister: why, with these categories of offences, have we taken on such a different test? The provision that we are discussing here relies on the test of ‘a person of any age or mental impairment who may be led to engage in a terrorist act’. If you move upstream from that, it looks to me as though a vastly broader range of material could be caught, some of it probably clearly fictional, if the person who is viewing that material can be of any age or suffer a mental impairment. I think, therefore, there is a risk that the provision will catch a much broader array of material.

It is not clear—and I am hoping that the minister and the opposition can clarify why they are voting against this, I think, very sensible amendment—why section 9A is required, given the previously existing prohibition on material that will ‘promote, incite or instruct in matters of crime or violence’. We are not seeking to amend that in any way. The decision to move away from the reasonable adult test, on the other hand, does not seem to have been justified anywhere by the government, or by the opposition in the comments that were offered up by Senator Brandis earlier. I invite the minister, and Senator Parry, if he wishes, to make a comment.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

In terms of Greens amendment (16)—that is, your proposal to repeal the classification provision—the government believes this provision is important and that it is not sufficient to rely on other provisions in the Classification (Publications, Films and Computer Games) Act 1995.

Section 9A recognises that some communications about doing a terrorist act are inherently dangerous because they could inspire a person to cause harm to the community. This could be the case where it may not be possible to show that a person had any intention that a specific terrorist offence be committed or to communicate the material to any particular person. Such actions fall outside the prohibitions on materials that ‘promote, incite or instruct in matters of crime or violence’. Further, it is important to note that section 9A is not so broad that it encompasses all forms of advocacy and support of any organisation. Under section 9A(3) of the classification act, material does not advocate the doing of a terrorist act if ‘the depiction or description could reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire’.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Likewise, for the benefit of Senator Ludlam, we oppose the amendment. We believe that anything that will promote, incite or instruct a person to commit a terrorist offence should be clearly excluded from and refused classification.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

With your indulgence, Madam Temporary Chair, to add to my earlier remarks, the government asserts that this proposed section aims to protect impressionable and vulnerable people from material encouraging the doing of terrorist acts: for example, as a matter of religious duty. The reference in proposed section 9A(2)(c) does not operate in isolation but, rather, as a part of a very specific set of circumstances which applies where certain actions could have an extremely negative impact on vulnerable persons.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I will not seek to pursue this matter any further except to say that I would completely agree with every single word that Senator Parry just said in his reasons for opposing the amendment. We are not seeking to promote material that incites terrorism. I am hoping I am not going to have to repeat myself as we move every single one of these amendments. It is not what this is about. The fact here is that we have quite radically changed the burden of proof as to what could be considered offensive material if we consider that someone very young, someone very impressionable, someone with a completely different cultural background or someone with any kind of mental impairment at all could be persuaded to commit some kind of hypothetical act on the viewing of this material. I think we have quite grievously and unnecessarily expanded the range of material to include stuff that in no way could be considered to be inciting of terrorism. Senator Parry, I completely agree with your comments, but I do not think it was an argument against this particular amendment. Without further delay, I commend amendment (16) to the chamber.

Question negatived.

by leave—I move amendments (21) and (22) on sheet 6181:

(21)  Schedule 3, item 10, page 22 (line 16), omit “reasonably suspects”, substitute “believes on reasonable grounds”.

(22)  Schedule 3, item 16, page 27 (line 19), omit “reasonably suspects”, substitute “believes on reasonable grounds”.

These two amendments regard the state of mind of the arresting officer. There is an inconsistency here between the state of mind required by a police officer to arrest a person without a warrant and required to continue to hold the person under arrest. Senators might consider this to be somewhat technical, but I think it is quite important. Section 3W(1) of the Crimes Act provides that an arresting officer must ‘believe on reasonable grounds’ that                     a person has committed an offence. This is inconsistent with section 23C(2)(b) and proposed section 23D(b) whereby an arresting officer needs to only ‘reasonably suspect’—that is the distinction I am drawing—that the accused committed an offence other than for which they were initially arrested. That is not the offence for which they were originally arrested but something else that a suspicion forms post arrest.

It was held in the case of George v Rockett (1990) 170 CLR 104 that a reasonable suspicion is a lower threshold than reasonable belief. That is the distinction I am drawing here. There does not appear to be any reason for this inconsistency and we therefore propose that proposed section 23DB(2)(b) be amended to refer to a belief on reasonable grounds—so this is doing nothing more than providing consistency—and also that a clause be inserted into the bill that amends section 23C(2)(b) consequentially. That is all these two amendments seek to do.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The government does not support the Greens amendments (21) and (22). These amendments would change the thresholds in paragraphs 23(C)(2)(b) and 23DB(2)(b) from ‘suspects’ to ‘believes’. So if a person has been arrested for a Commonwealth offence the person may, while arrested for the offence, be detained for the purpose of investigating whether the person committed another offence the investigating officer reasonably believes rather than suspects. Reasonable grounds to believe requires a higher degree of satisfaction of the facts than reasonable grounds to suspect. It must be remembered that police must always have the requisite belief on reasonable grounds that the person has committed a Commonwealth offence for the person to be lawfully detained. This is a strong safeguard. If the thresholds were raised to that of belief, then police investigators would be constrained in their ability to investigate the criminal activity associated with the arrested person. This would not adequately recognise the requirements of contemporary law enforcement.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The opposition also opposes these two amendments. The government’s position is the one that we adopt on this. We have heard evidence in the Senate Standing Committee on Legal and Constitutional Affairs and other committees that if you do increase the threshold from ‘reasonably suspects’ to ‘believes on reasonable grounds’ it does make the job of a police officer on the ground, in the field, a lot more difficult. These are serious matters and we believe the police need every tool they can have. This provision would weaken a tool that they have to combat terrorism.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I cannot describe those responses as anything other than entirely inadequate, but I will move on.

Question negatived.

The next batch of amendments are Greens amendments (23) to (29). I recognise that two of these amendments I am seeking to oppose, so I think I am required to move them separately. However, I might just speak to them all before seeking to move them that way.

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

Senator, you can move them together but the questions will be separated.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (23) to (25), (28) and (29) on sheet 6181:

(23)  Schedule 3, item 16, page 29 (line 14), omit “23DC,”.

(24)  Schedule 3, item 16, page 29 (lines 23 to 25), omit paragraph 23DB(9)(m).

(25)  Schedule 3, item 16, page 29 (lines 26 to 32), omit subsection 23DB(10), substitute:

      (10)    To avoid doubt subsection (9) does not prevent the person being questioned during a time covered by a paragraph of subsection (9), but if the person is questioned during such a time, the time is not to be disregarded.

(28)  Schedule 3, item 16, page 37 (lines 7 and 8), omit “20 hours”, substitute “44 hours”.

(29)  Schedule 3, item 16, page 37 (line 12), omit “, 23DD(5)(b)”.

We also oppose schedule 3 in the following terms:

(26)  Schedule 3, item 16, page 29 (line 33) to page 30 (line 4), subsection 23DB(11) TO BE OPPOSED.

(27)  Schedule 3, item 16, page 30 (line 12) to page 34 (line 8), sections 23DC and 23DD TO BE OPPOSED.

These are extremely important. They are among the more important items that I am bringing to the chamber tonight, and that is because most Australians and most people living in democratic societies would, I think, have a reasonable belief—or even a reasonable suspicion—that they can be free from being arbitrarily detained for long periods of time—that is, snatched, held without charge, interrogated, unable to contact lawyers necessarily or family or other people. In some cases, according to these laws, you are able to let people know that you are being held but you cannot say why. These specifically go to precharge detention provisions, which so notoriously came to light in the instance of Dr Haneef, who did fall foul of them.

There are some changes here. I think the way the government has approached these provisions of the terror laws, which were so soundly criticised, in a way provides us with a bit of a microcosm for how the government has handled these reforms overall—that is, with timidity and without any imagination or any ability to look a little bit more deeply into the debate and into the contributions some people have made. The existence of the precharge detention and the periods of time for which people can disappear received a very close scrutiny and subsequent criticism from the Clarke inquiry in the wake of the Mohammed Haneef fiasco.

Firstly, we do commend the government on the bill’s amendment to restrict the hearing and the grant of applications to extend time under proposed section 23DB of the Crimes Act to a magistrate, rather than under the existing framework whereby applications may also be approved by JPs or a bail justice. So the government is to be congratulated for narrowing that range of people and setting the bar a little bit higher as to who is able to allow these things to occur. We also support the government’s decision to place a cap on time that individuals may be held in precharge detention even though it does not go nearly far enough to ensure compliance with Australia’s international obligations that people not to be held arbitrarily without charge for extended periods of time.

Part 1C of the Crimes Act currently provides the Australian Federal Police with the power to arrest and detain a person without a warrant for an indefinite period of time, or the AFP may investigate as to whether the individual has committed a terrorist offence. Part of the problem with the procedure for precharge detention is the very confusing nature in which the current section 23CA of the Crimes Act is drafted. You can see here, I think, the original intention of the act has had successive legislative grafts attached to it. It has proliferated and has become very complex, I suspect, even for officers in the field who are trying to work with these sections of the legislation.

There are actually three separate mechanisms for extending the investigation period beyond the usual four-hour limit for a terrorism offence. Do we actually need three different ways for the detention period to be delayed or extended? I can recall quite clearly Senator Parry sitting next to me when this matter was being heard by the Legal and Constitutional Affairs Legislation Committee and it did take a while for the committee to nut out exactly how the system works because it is so inordinately complex. So senators should be aware that we are seeking to do two things here, effectively. One is to draw down the period of time for which people can arbitrarily disappear and the second is to simplify the mechanism by which the unspecified time can be extended—that is, the dead time that was used to hold Dr  Haneef—and I am hoping that we can hold a debate on the merits of these two separate ideas.

Of the three mechanisms, firstly, we have an extension of investigation time mechanism, which provides that applications may be made to a judicial officer to increase the investigation period any number of times to a maximum of 20 hours, meaning that the total investigation period may now be extended to 24 hours. So we started with four hours and we have used the first mechanism to add another 20 hours. Secondly, there is a specified disregarded time mechanism, which is actually one that we support. Specified time includes categories of time such as for the individual to communicate with a legal practitioner or with their family, to receive medical attention, or to rest and recuperate. We do not oppose such specified time being disregarded. Obviously if the suspect is asleep, then the clock should stop, and we think that is appropriate.

However, we are very concerned with the third extension of time mechanism for what is called ‘unspecified disregarded time’ contained in section 23CA(8)(m) of the Crimes Act and proposed in section 23DB(9)(m) of this bill. Under the unspecified disregarded time mechanism as it currently exists there is no cap on the amount of time an individual may be detained. It is this provision which is responsible for Dr Haneef being held for 12 days without charge by the Australian Federal Police in a case that, from the outset probably, became highly politicised.

The amendment proposed by the government in this bill of placing a seven-day cap on unspecified disregarded time is of course an improvement on there being an indefinite cap or effectively no cap at all. But this amendment does not scratch the surface on the human rights concerns with such a provision. It leaves a mechanism in place and it leaves an inordinate complexity in the police officers being able to apply for three different ways of extending the period of time someone is detained. Even with a seven-day cap in place on unspecified disregarded time, there is still the initial four hours that can be extended to 24 hours by an application to a judicial officer. So therefore we are left with a running total of eight days, which may in fact end up being much more than eight—this is under the government’s proposed amendments—with the inclusion of any of the categories of specified disregarded time, that is, sleep, time zone differences, or whatever that might be, which includes that range of times including rest and recuperation. We could assume safely, I think, that rest and recuperation could be quite an extensive period of time if the individual has been detained for eight days without charge. It will most likely be a time period not much less than 12 days, the same period of time that Dr Haneef was detained. I think that it is entirely questionable whether a notional seven-day cap, which can be blown out to as many as 12, we believe, is any kind of improvement at all.

As with all terrorism related offences and procedures, the Australian Greens understand the need to protect the Australian public from violence, but we are not convinced that an individual should be subject to being detained for more than seven days without charge, which is what these amendments do. Terrorism related offences are international in scope and therefore there are likely to be practical differences in obtaining communications with relevant law enforcement agencies elsewhere in the world, and I think we probably did see that with Dr Haneef. However, there are many more offences with an international scope completely unrelated to terrorism where precharge detention is not altered from the usual investigation period. The two that come to mind most obviously would be people-smuggling offences or child pornography offences. So we believe the bill’s amendment is still not proportionate or justified in that it is in breach of Australia’s international obligations. Article 9(1) of the ICCPR provides the right not to be arbitrarily detained. Article 9(3) provides that an individual charge must be brought promptly before a judge. So the bill’s amendment for a cap of seven days on unspecified disregarded time does not alter the fact that Australia will be in breach of its obligations under the ICCPR. This is the fourth or fifth time that I have mentioned this instrument in the course of the debate tonight and it does not seem to upset the government much to continually be reminded that we are in breach of international human rights obligations.

Case law from the European Court of Human Rights on the equivalent provision of paragraph 3 of article 9 of the ICCPR and the European Convention on Human Rights deemed that there should be a strict time limit of four days on detention without judicial control, which is obviously considerably less than the seven-day cap that is proposed by the bill. The Australian Greens propose that the precharge detention regime be simplified and we ensure that Australia is compliant with its international obligations. So they are the two things: the period of time and the mechanisms whereby it is extended.

We believe that proposed section 23DB(9)(m) should be removed from the bill, as stated in the Clarke report in relation to the equivalent provision currently in the Crimes Act. Clarke says:

It is not accurate to describe the s. 23CA(8)(m) dead time as dead time. Rather, it is additional investigation time, and the only reason questioning is suspended during that time is because the section so permits.

It is unjustifiable. Proposed section 23CA(8)(m) is, therefore, out of place amongst the other dead time provisions for sleep or whatever and should be included within the power for the AFP to have investigation time extended. Having three mechanisms whereby investigation time may be extended is unnecessary and creates further confusion as to the powers of the AFP and the rights of the individual.

Therefore, the Australian Greens propose, in line with the Clarke report recommendations, that the bill be simplified by removing the unspecified disregarded time mechanisms contained in proposed section 23DB(9)(m). We would then have just one system for extending investigation time and that would be through applying to a judicial officer, as per the government’s amendments, to extend investigation time beyond the usual four-hour investigation period.

The Greens propose that accompanying the simplification of the precharge detention regime should be providing a judicial officer with the power to extend investigation time beyond the 20 hours proposed in the bill. We support an extension of 44 hours to bring the maximum investigation period with the approval of a judicial officer to 48 hours. That is the total cap we are proposing here with these amendments tonight—two days. Even with the inclusion of specified disregarded time, the precharge detention regime would be in compliance with Australia’s international obligations to not arbitrarily detain as has been interpreted by the European Court of Human Rights.

So, as noted before, I am sure I am going to win a couple of these votes tonight. I sincerely hope that this is one of them.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I do not like to disappoint Senator Ludlam but, sadly, I have to. I do agree that the coalition and I personally in the committee hearing found these provisions exceptionally complicated. A request was made to the Attorney-General’s Department to examine the entire regime of time frames. However, having said that, as Senator Ludlam has gone through the Greens amendments I think we have seen that there is still a large degree of complexity attached to the Greens’ method of determining how time frames will be established. We therefore are of a mind to support the government’s original amendments and not support the Greens amendments. However, we would still encourage a further wholesale review of the time frames, as highlighted in our committee report. I also add that the committee failed to make any firm recommendation in relation to times on this matter, leaving it to the goodwill of the Attorney-General’s Department to examine the time frames concerned.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The government does not support amendment (24) and consequential amendments (23) and (25). Amendment (24) would remove a specific category of time that is specified by a magistrate and can be disregarded from the investigation period when a person has been arrested for a terrorism offence. This time may be necessary to, for example, collate information from an overseas country before presenting it to a suspect during questioning or waiting for overseas jurisdictions to respond to requests for critical information from the Australian Federal Police. The rationale for this category of disregarded time is that it is not always possible to predict the circumstances where time should be disregarded from the investigation period to enable a proper precharge interview to take place. This ambiguity is balanced by requiring these periods of time to be authorised by a magistrate. Any time that is specified by a magistrate must be reasonable for it to be disregarded from the investigation period. Removing this category of disregarded time would not recognise the complex nature of terrorism investigations. The National Security Legislation Amendment Bill 2010 improves upon these provisions by setting a cap of seven days on the amount of time that can be specified by a magistrate and disregarded from the investigation period.

In addition, the bill will enhance existing safeguards by requiring an application for specified disregarded time to be in writing approved by a senior member of the AFP and given to the arrested person or their legal representative prior to a magistrate considering their application. The seven-day cap for detention responds directly to the Clarke inquiry report, which suggested that a cap of this duration would be appropriate. A single cap of 48 hours as proposed by the Greens does not adequately reflect the complexities of terrorist investigations. Unspecified disregarded time allows for the exchange of information with foreign law enforcement agencies.

The government does not support the Australian Greens’ opposition to proposed section 23DB(11). The government’s amendment will set up a maximum cap of seven days on the amount of time that can be specified by a magistrate and disregarded from the investigation period. This amendment is designed to provide greater certainty and directly responds to the Clarke inquiry report, which suggested that a seven-day cap would be appropriate.

The government does not support the Australian Greens’ proposal to remove proposed sections 23DC and 23DD. These sections will set out the process for making an application for a specified period of time that could then be disregarded under proposed section 23DB(9)(m). Proposed section 23DD will set out the process by which a magistrate could specify a period of time that could then be disregarded under proposed section 23DB(9)(m). These are important provisions that provide significant safeguards.

Lastly, with respect to Greens amendment (28), the government does not support that amendment. This amendment would increase the maximum period by which the investigation period could be extended, when a person has been arrested for a terrorism offence, from 20 hours to 44 hours. This would mean that a person could be detained for up to 48 hours as opposed to 24 hours. I understand this amendment is to complement the proposed Greens amendment to remove the provisions for time that can be specified by a magistrate and disregarded from the investigation period. However, a total investigation period of two days is too restrictive for law enforcement agencies in terrorism cases. The government does not believe the provisions allow arbitrary detention and does believe that they are consistent with the International Covenant on Civil and Political Rights. There are strict legislative requirements and judicial oversight, which are designed to ensure detention is never arbitrary.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I am a little hurt to hear that Senator Parry thinks the Australian Greens amendments would leave the situation still complicated. And nowhere in the minister’s comments did he address the issue of why we need three separate mechanisms for extending the period of time for which people can disappear. Minister, I wonder if you could, as concisely as you are able, describe for us why we need three mechanism for extending investigative time. As an outsider, I fail to understand why our system has to be this complex. To me it looks very much as though we have a system that has been grafted onto and which has gradually evolved over time as people have added bits and pieces to the legislative framework without any fresh eyes looking at it and saying, ‘Why don’t we just do away with one of these mechanisms for extending time?’ We have one; we have acknowledged the necessity for two; I do not understand why we would need three.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am advised that, firstly, there are a significant number of safeguards in all three pathways which protect the accused and, secondly, that the reason there are three mechanisms simply reflects the fact that each terrorism case is a unique happening and each case would have, we can anticipate, an enormous number of unique and peculiar complications particular to that case. For instance, it may involve foreign jurisdictions and the need for us to work with overseas agencies and overseas governments. It may require intelligence and intelligence gathering. It may require many domestic agencies. On top of all of that, you can appreciate the fact that there will be a significant amount of domestic law and potentially international law that comes into play as well. For those reasons, three mechanisms are deemed to provide investigators with the appropriate tools they need to conduct their work, and the legislation embodies safeguards and judicial review to protect those who are accused.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Minister, for what I think could best be described as a completely unsatisfactory response, but thank you nonetheless for seeking it from the officers here in the chamber.

The Temporary Chairman:

The question is that Greens amendments (23), (24), (25), (28) and (29) on sheet 6181 be agreed to.

Question negatived.

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

The next question is in relation to Greens amendments (26) and (27). The question is that schedule 3 stand as printed.

Question agreed to.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (30) and (31) on sheet 6181:

(30)  Schedule 4, item 4, page 39 (after line 24), after subsection 3UEA(1), insert:

     (1A)    If one or more police officers have entered premises in accordance with subsection (1), one of them must, within 24 hours after the entry, apply for a retrospective search warrant.

      (1B)    The regulations must prescribe the requirements to be met before an issuing officer issues a retrospective warrant.

      (1C)    If the issuing officer does not issue the warrant, then any evidence obtained under subsection (1) or (2) is inadmissible in proceedings against a person.

(31)  Schedule 4, page 40 (after line 29), after item 4, insert:

4A  Before section 3UF

Insert:

3UEB  Commissioner’s annual report to Minister

        (1)    As soon as practicable after 30 June in each year, the Commissioner of the Australian Federal Police must submit a report to the Minister setting out the details required by subsection (2) in relation to emergency entries to premises made by Australian Federal Police officers under subsection 3UEA(1) during the previous 12 months.

        (2)    The report must include the following details:

             (a)    the number of emergency entries that were made during the period to which the report relates;

             (b)    the number of applications for retrospective warrants that were made during the period to which the report relates;

             (c)    the number of applications for retrospective warrants that were refused by an issuing officer during the period to which the report relates;

             (d)    any other information prescribed for the purposes of this paragraph.

        (3)    The Commissioner must advise the Minister of any information in a report that, in the Commissioner’s opinion, should be excluded from the report before the report is laid before the Parliament because:

             (a)    the information, if made public, could reasonably be expected to:

                   (i)    endanger a person’s safety; or

                  (ii)    prejudice an investigation or prosecution; or

             (b)    making the information public would be contrary to the public interest for any other reason.

        (4)    The Minister must exclude information from a report if the Minister is satisfied on the advice of the Commissioner of any of the grounds set out in subsection (3) and must then cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

        (5)    A report must not disclose any information that identifies any person involved in an emergency entry or related operation or that is likely to lead to such a person being identified.

These are probably the simplest two amendments of this batch that I am putting forward tonight. A key concern that we have with the proposed bill is the Australian Federal Police’s power for warrantless searches in proposed section 3UEA. The provision as we read it permits AFP officers to enter premises in emergency circumstances in relation to a terrorist offence where they believe there may be a risk to the safety of the public. So far, so good. Yet again we support the need to protect the Australian public from the harms associated with terrorism, but we are concerned that the proposed provision is in breach of another of Australia’s international obligations. If the proposed provision is to remain, it should be subject to some safeguards. This is especially the case considering an AFP officer must merely have a suspicion rather than a belief before deciding to search a premise under the proposed provision. Furthermore, we were not satisfied during the committee process that the current process of being required to obtain a warrant is actually a burden in emergency circumstances, considering that a warrant may be obtained at very short notice by way of telephone or fax, but we have not sought to make amendments in that regard.

The Australian Greens are particularly concerned that the proposed provision may be in breach of article 17 of the ICCPR—there we are in breach again—which provides:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence …

The use of police warrants is obviously a means by which the right to privacy of those residing at the premise can be protected. Therefore, circumstances in which entry to a premise should be permitted without a warrant should be limited and subject to safeguards. I am amazed that I am probably about to find out that the government and the opposition find that controversial. The Australian Greens, therefore, propose a retrospective warrant procedure whereby a judicial officer would, subsequent to a search, be required to obtain an ex post facto search warrant. The requirement of such a search warrant ensures that the police are required to appear before the judiciary and satisfy the judiciary to the same standard that they would in the case of a normal search warrant application of their right to search the premises.

We also propose that, if an ex post facto search warrant is not granted, any evidence obtained during the search be inadmissible. Here we are again trespassing on several hundred years of legal precedent. A final safeguard we propose would be to include a requirement for the AFP to report every 12 months to parliament on the occasions in which emergency warrantless searches were conducted under section 3UEA and whether a warrant for such a search was subsequently provided by the judiciary. So we are not seeking to amend the nature of the warrantless searches or necessarily raise the bar for who can apply for one or on what ground. I suppose what we are thinking about here is the ticking bomb scenario where the police officer believes that something is going on in the premises, they do not have time to make the phone call to get the warrant, they go in and there is or there is not some kind of dangerous situation that they have been able to confront. That is all well and good, and we are not seeking to amend that. I do not know how often these sorts of things would be applied for, but there is the scenario. But I fail to see what exactly the minister will have to come up with or why the opposition would oppose an amendment as straightforward as requiring the officer to then go back and seek a post facto search warrant to explain why they acted the way they did. I will let the minister now explain why that is a controversial proposition.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The government does not accept amendment (30). This amendment would introduce an ex post facto warrant procedure in proposed section 3UEA of the Crimes Act. I understand this proposed amendment to have arisen out of a concern that a police officer may not be held accountable for their actions. The proposed Greens amendments are unnecessary to address this concern. The power cannot be exercised covertly and a seizure notice is required to be given to the owner of anything that is taken from the premises in accordance with existing section 3UF, which will be amended by this bill to also apply to the proposed new section 3UEA.

It is important to note that this power is not for general evidence gathering and, if in the course of searching the premises for the thing the police officer finds evidential material that does not present a serious and imminent threat to life, the police officer must secure the premises and obtain a search warrant in order to seize it. The use of the power will be scrutinised by the courts if criminal proceedings are initiated. Furthermore, if a person is concerned that the power is not exercised correctly, they will be able to lodge a complaint either directly with the AFP, with the Australian Commission for Law Enforcement Integrity or with the Commonwealth Ombudsman, who could also investigate the complaint.

The government also opposes Greens amendment (31). The government certainly believes there should be appropriate oversight of the AFP’s use of its powers but believes there are already mechanisms to ensure officers are accountable in their use of the powers. As for the exercise of other powers, the Australian Federal Police would set up mechanisms as part of its governance framework to ensure powers are exercised appropriately and that the grounds upon which they are exercised are recorded after the event. AFP internal accountability arrangements, including professional standards, are sufficient. Furthermore, the power is not covert. The government’s bill includes a notification requirement to the occupier of the premises. So a person could make a complaint to the Ombudsman if they were of the view that the power was misused. In addition the government is establishing a new parliamentary joint committee on law enforcement, which will further enhance the oversight of the Australian Federal Police.

Lastly, with respect to the senator’s remarks concerning the ICCPR, there are strict requirements. It is addressed to emergency situations where there is a threat to life and safety. These kinds of situations are regarded as legitimate exceptions to ICCPR obligations. The power is confined to the need to deal with the emergency situation; it is not a covert power and it is not a general search power.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The opposition will also oppose amendments (30) and (31). Senator Feeney has covered the opposition’s points fairly well. I would just add that the safeguards exist in particular in schedule 4, subsection 3UEA. There are provisions in there—particularly provision 5, where in the course of searching the police officer suspects on reasonable grounds it is necessary to do so but only if two provisions apply: in order to protect a person’s life, health or safety; and without the authority of a search warrant because the circumstances are serious and urgent, not frivolous. I think these provisions are quite reasonable. They allow for a situation to take place where, first of all, life is going to be protected above and beyond anything else. Without those provisions, that could not take place. The other matters have been covered by the minister, and I do not propose to detain the Senate any further. We will certainly be opposing these two amendments.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the minister and Senator Parry for their comments. I listened very carefully because everything that you have said is entirely reasonable and completely neglects the point I was raising: why not require the police officer to apply for the warrant post facto? Why not get that additional piece of paperwork and that additional safeguard on the table? If indeed these provisions are so reasonable and so well safeguarded, why is this the one category of search whereby a warrant would not be required? I do not expect that I will necessarily be getting any new information, so I simply move items (30) and (31).

Question negatived.

I will speak to amendments (32), (33) and (34) to the National Security Legislation Amendment Bill 2010 on sheet 6181, acknowledging that amendment (33) will probably need to be moved separately. These amendments deal with bail and a presumption against bail for terrorism offences. Again, these items had quite an airing during the committee hearings and the various materials that were forwarded in the process of evaluating the exposure draft of the bill. We support the amendment to section 15AA of the Crimes Act which provides a right of appeal to both prosecution and defence to a grant or refusal of bail. That seemed to us to be common sense. However, we remain opposed to the presumption against bail for terrorism offences and believe that bail for terrorism offences should be dealt with in the same way as other criminal offences rather than requiring that bail only be granted in exceptional circumstances.

We are concerned that the presumption against bail is a threat to the presumption of innocence that Australia is obliged to respect under article 14(2) of the ICCPR and that the provision may also be a disproportionate interference in the right to liberty contained in article 9 of the ICCPR. Concern with the presumption against bail in section 15AA has also been expressed by the UN Human Rights Committee in their 2009 concluding observations on Australia, where they identified this clause as potentially being in breach of Australia’s obligations under the ICCPR. By removing the presumption against bail for terrorism offences, the offences would be subject to the usual bail considerations.

Usual considerations include the seriousness of the charge and the likelihood of the accused committing further offences if granted bail. We have been considering tonight a range of hypothetical offences. The ones that have been put to us are generally pretty serious and you would have to presume that, if the magistrate is doing their job, bail would not be granted if the person is likely to recommit some kind of offence or if the offences are as serious as proposed. The considerations will obviously ensure that where there is a risk that upon release an individual may commit or assist in committing a terrorist attack they would not be granted bail. There is therefore no need to provide an unduly high hurdle for an accused to overcome, as the bill does with bail only to be granted in exceptional circumstances—a phrase that is actually not defined in the bill.

I am of the opinion that the presumption against bail, if this is to remain, should be accompanied by safeguards in addition to the right to appeal the granting or refusal of bail, as this bill proposes to implement. The cases of R v Kent and R v Ezzit Raad mentioned by the Law Council of Australia in their submission to the Senate inquiry highlight the difficulty that the judiciary has had in determining whether delay in the investigation period or delay between the arrest and trial constitutes exceptional circumstances and, therefore, whether bail should be granted. In Ezzit Raad it was held that a considerable delay between arrest and trial, even when the accused was being held in particularly harsh conditions of detention, did not constitute exceptional circumstances.

We are also concerned with the proposed implementation of sections 15AA(3C) and 15AA(3D) which provide that, where bail is approved for a terrorism offence and the prosecution decides to appeal that bail, it may be stayed until a decision is made on appeal, prosecution notifies the court that it does not intend to proceed with the appeal or 72 hours have passed since the stay came into effect. Again, we do not believe that the government is approaching the denial of an individual’s liberty with an appropriate degree of seriousness, especially considering to be granted bail for a terrorism offence is no easy feat with, as mentioned, bail only granted for terrorism offences in exceptional circumstances. Therefore, we believe that proposed sections 15AA(3C) and 15AA(3D) be repealed. I will wait for the minister to make some remarks before moving those amendments.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Firstly, the government does not support amendment (32) concerning the repeal of presumption against bail. Section 15AA(1) of the Crimes Act provides that bail should not be granted to persons charged with or convicted of offences covered by section 15AA(2) unless the court is satisfied that exceptional circumstances exist to justify bail. The presumption against bail was first inserted in 2004 to ensure a consistent approach to bail proceedings for certain serious offences. Prior to this, the Commonwealth had to rely on state law governing bail proceedings. This resulted in different appeal rights depending on the state or territory jurisdiction that the offence was being tried in. Presumptions against bail currently apply to certain serious offences in most state and territory jurisdictions. It is appropriate that terrorism offences fall within the class of serious offences where the presumption against bail applies. Importantly decisions about bail are ultimately at the discretion of the judge. The presumption against bail does not fetter this right or discretion.

The government does not support amendment (33) concerning the stay on grant of bail. This amendment opposes proposed sections 15AA(3C) and 15AA(3D) of the bill. If a bail authority decides to grant bail, proposed section 15AA(3C) will provide for a stay of the court order. Proposed section 15AA(3D) will provide that the stay will last only until a decision on the appeal is made or the prosecution notifies the court that they do not intend to pursue an appeal or until 72 hours has passed, whichever is the least period of time. These proposed provisions are similar to existing state provisions. However, not all state and territory jurisdictions have such provisions. It is desirable for us to have a consistent approach, particularly given that some of the investigations concern activity that spans state borders. As Senator Ludlam will appreciate, it logically follows that the government does not support consequential amendment (34).

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Unless Senator Parry is going to make a contribution, I seek leave to move amendments (32) and (34) on sheet 6181 together.

Leave granted.

I move:

(32)  Schedule 6, page 43 (after line 3), before item 1, insert:

1A  Paragraph 15AA(2)(a)

Repeal the paragraph.

(34)  Schedule 6, item 2, page 44 (lines 9 and 10), omit “, (3B), (3C) and (3D)”, substitute “and (3B)”.

Question negatived.

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

We oppose schedule 6, item 1 in the following terms

(33)  Schedule 6, item 1, page 43 (line 26) to page 44 (line 7), subsections 15AA(3C) and (3D) TO BE OPPOSED.

In respect of amendment (33), the question is that schedule 6, item 1, subsections 15AA(3C) and (3D) stand as printed.

Question negatived.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I move amendment (35) on sheet 6181:

(35)  Schedule 8, page 47 (line 1) to page 74 (line 33), omit the Schedule, substitute:

Schedule 8—Repeal of the National Security Information (Criminal and Civil Proceedings) Act 2004

1  The whole of the Act

Repeal the Act.

Senators will probably be pleased to discover that this is the last batch of amendments I will be seeking to move to this bill. Amendment (35) is probably the simplest amendment I will be moving tonight. It repeals, in whole, the National Security Information (Criminal and Civil Proceedings) Act 2004. I will confine my remarks and keep them very brief. Senators will appreciate that we have been pretty moderate in our proposals to date. This is the only large tranche of antiterrorism legislation we sought to simply repeal out of hand as being actually quite offensive to the rule of law as we understand it in Australia. If this amendment is lost—and I do not like my chances—I will move the two further amendments by leave and will then describe why we are attempting to simply repeal this offensive act in its entirety.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The government does not support the repeal of the National Security Information (Criminal and Civil Proceedings) Act 2004. Prior to the NSI Act, national security information could be protected from disclosure during court proceedings by relying on the common law doctrine of public interest immunity. Where a public interest immunity claim is successful, a case may be unable to proceed due to a lack of admissible evidence or because withholding information from a defendant may prevent them from mounting a full defence and receiving a fair trial. The NSI Act overcomes these difficulties by providing a framework for the disclosure, storage and handling of national security information. The NSI Act has been working effectively since it was created and the amendments in the bill will improve its practical operation.

As regards the question of whether the NSI Act infringes on a defendant’s right to a fair trial, it is the government’s view that the legislation does not interfere with the defendant’s right. This has been affirmed by recent court decisions. In R v Faheem Khalid Lodhi, the court held that subsection 31(8) of the NSI Act is consistent with the right to a fair trial. The court has an overriding discretion to order a stay of proceedings if it considers that the practical effect of excluding either certain information or an individual from proceedings would make the position of the parties unequal to the point where one party is prevented from adequately presenting their case.

With respect to amendments (36) and (37), the government opposes those amendments. The purpose of the notification requirements is so that the Attorney-General can determine whether he or she should issue a criminal non-disclosure or witness exclusion certificate under the act. The amendments in the bill will make it clear the notice obligations also apply if the prosecutor, defendant or defendant’s legal representative has applied for and been granted a subpoena and they know or believe that evidence to be produced or documents that are the subject of the subpoena would disclose national security information. For example, if a security or intelligence agency is subpoenaed for documents by the defendant’s legal representative, where that legal representative knows or believes those documents contain national security information, the representative must notify the Attorney-General of that knowledge or belief. The bill simply imposes an equivalent obligation to that which already applies to expected disclosure of security-sensitive information through witness testimony or documentary evidence that is disclosed during a proceeding.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The opposition will be opposing this amendment also. I make the comment simply that, in addition to what Senator Feeney has indicated, the National Security Legislation Monitor will be reviewing the entire act, so it would be far too premature to jump into looking at repealing an act until that has taken place.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for his comments. If we are waiting for the National Security Legislation Monitor to turn up and assess this for us, we could be waiting for a very, very long time. At this point I commend amendment (35) to the chamber. If it is lost, I will speak to amendments (36) and (37).

Question negatived.

by leave—I move items (36) and (37) on sheet 6181:

(36)  Schedule 8, item 26, page 52 (line 27), omit “or”.

(37)  Schedule 8, item 26, page 52 (lines 28 to 32), omit paragraph 24(1)(c).

The National Security Legislation Amendment Bill amends the National Security Information (Criminal and Civil Proceedings) Act. This is the piece of legislation that I just unsuccessfully proposed to repeal in its entirety. It is a very complicated piece of legislation. It has in fact been observed by Justice Anthony Whealy of the Supreme Court of New South Wales that:

It may respectfully be observed that it gives the appearance of having been drafted by persons who have little knowledge of the function and processes of a criminal trial.

That is the act we are contemplating now. This is a highly unsatisfactory situation to say the least, given the penalties for terrorism related offences being so severe and the rights to a fair trial being compromised by this piece of legislation. To provide one example of how flawed this legislation is, I refer to section 39, which requires lawyers to obtain security clearances in certain cases. The NSI Act currently provides that during a federal criminal proceeding a legal representative of the defendant may receive written notice from the Secretary of the Attorney-General’s Department that an issue is likely to arise in the proceedings relating to the disclosure of information that is likely to prejudice national security. They must do so within 14 days of receiving a notice and, if they are denied a security clearance or do not obtain it, they may be prevented from viewing all the evidence in relation to the case, which will obviously severely impact on their ability to continue to represent their client.

This obviously would consequently restrict the pool of lawyers for an accused to select from, because this provision significantly detracts from the guarantee of the right to a fair trial in article 14(3) of the ICCPR—there it is again. I understand that in this building in particular, which hosts its fair share of lawyers, the idea that to participate in a criminal trial or a terrorism trial you would need to undergo some kind of security clearance has been soundly rejected by the legal community as entirely offensive. The independence of the legal profession is undermined by section 39 of this act. It ignores the reality that criminal lawyers deal with confidential information every day and already must adhere to very strict professional conduct rules concerning confidentiality. We were not able just now to successfully repeal the act, so I believe that proposed section 24(1)(c) should not be implemented.

Schedule 8 of the bill amends division 2 of part 3 of the NSI Act. Part 3 is entitled ‘Protection of information whose disclosure in federal criminal proceedings is likely to prejudice etc. national security’. Under section 24(1) of the act:

If the prosecutor or defendant knows or believes that:

(a)

he or she will disclose, in a federal criminal proceeding, information that relates to … or … may affect national security; or

               …            …            …

(c)

a person whom the prosecutor or defendant intends to call as a witness in a federal criminal proceeding will disclose information in giving evidence or by his or her mere presence—

that relates to or may affect national security, the prosecutor or defendant must as soon as possible notify the Attorney in writing of their knowledge or belief. The maximum penalty for failure to do so is two years imprisonment. The bill proposes to amend section 24(1) so that providing notice to the Attorney is also required when the prosecutor or defendant knows or believes that:

… on his or her application, the court has issued a subpoena to, or made another order in relation to, another person who, because of that subpoena or order, is required (other than as a witness) to disclose national security information in a federal criminal proceeding …

The Australian Greens do not support the proposal to extend the notice provision to cover subpoenas. In closing, I think this sums up for us the extraordinary disappointment that we feel that, after two years of reviewing and taking an extraordinary amount of evidence from a very wide range of experienced legal practitioners, the only thing the government can come up with in relation to this act is to extend its scope. The reason for this position is that the act already covers the production of information on subpoena. The mere issuing of a subpoena will not result in the disclosure of information that may be prejudicial to national security. Only court officials and the party to whom the subpoena is directed are privy to the contents of such a document.

As noted by the Law Council, adding further to our concern is the very broad nature of the definition of ‘national security information’, which I will come to shortly, and the lack of precision with which subpoenas are often drafted. This makes it very difficult for lawyers to be aware of the precise information that will result. Somehow your counsel is meant to hypothetically understand what it is that might come back as a result of the subpoena, and if they do not then they are subject to two years in prison if material is adduced that somehow compromises this very broad definition of national security. I think it is putting the courts, and the legal profession in particular, under an impossible burden. It makes it very difficult for lawyers to be aware of the precise information that will result from a subpoena and whether it may result in the revelation of material prejudicial to national security. As counsel you just have to guess, and you had better hope that you get it right, or you might serve two years in prison.

The bill also proposes to insert a definition of ‘national security information’—and this is my final point on this issue:

national security information means information:

(a)

that relates to national security; or

(b)

the disclosure of which may affect national security.

It is a positive step to include a definition of ‘national security information’; at least it provides some clarity for lawyers and the judiciary. However, the breadth of the definition highlights that the notice provisions for lawyers in this act are unduly onerous. As with many of the amendments that I have moved tonight, I would hope that at the last minute the government sees sense and that, if we are not able to repeal this offensive act in its entirety, at least we can make these two minor amendments to limit its scope. So I commend these two amendments to the chamber.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I have addressed myself to these amendments in my earlier remarks, but I would simply supplement those by saying that it is the government’s view that this legislation does not interfere with a defendant’s right to a fair trial. I again refer the senator to the matter of R v Faheem Khalid Lodhi and the finding of the court in that matter that section 31(8) of the NSI Act is consistent with the right to a fair trial. I further point out the fact that the overriding discretion of a court to stay proceedings in certain circumstances does protect parties when those proceedings might take a form where one party is unequal to another to the point that they are prevented from adequately presenting their case. It is the government’s view that, yet again, this meets the test of exceptions that are allowed under the ICCPR.

Helen Kroger (Victoria, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (36) and (37) on sheet 6181 be agreed to.

Question negatived.

Bill agreed to.

Parliamentary Joint Committee on Law Enforcement Bill 2010

Bill—by leave—taken as a whole.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I have a couple of brief amendments, but I might just make some comments, because we have not had much discussion of the Parliamentary Joint Committee on Law Enforcement Bill 2010 apart from some of Senator Parry’s comments earlier; mostly we have confined our comments to the earlier bill. We support the establishment of the Parliamentary Joint Committee on Law Enforcement. We acknowledge the need to have strong oversight powers over the AFP and the ACC, which both have extensive powers that may be used to derogate from fundamental civil liberties. So the initiation of this joint committee is in itself a very good thing.

We propose some improvements to help its scope and to ensure that the committee’s role is of substance rather than to operate in a superficial manner under which the AFP and the ACC may justify their conduct based on the existence of an oversight committee. So, if that committee is going to exist, we need to make sure that it is able to do its job effectively. I move Greens amendment (1) on sheet 6182:

(1)    Clause 3, page 3 (line 37), omit paragraph (h) of the definition of sensitive information.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

The government does not support amendment No. 1 proposed by the Greens. The inclusion of paragraph (h) in the definition of sensitive information is based on the provision that currently applies in relation to the Parliamentary Joint Committee on the Australian Crime Commission. Under the current subsection 59(6B) of the Australian Crime Commission Act 2002, the chair of the board of the Australian Crime Commission must not give the parliamentary committee information if the chair considers that disclosure of that information to the public could prejudice the safety or reputation of persons.

When dealing with a criminal intelligence agency such as the Australian Crime Commission, the sort of information that it may have available to it could have serious ramifications and cause highly detrimental prejudice to a person’s reputation. The inclusion of paragraph (h) in the definition of sensitive information in the bill is not designed to enable agencies to avoid providing material that might be embarrassing to their own members. It is about ensuring that information lawfully obtained by these agencies is not subsequently able to be made public in circumstances where it could cause irreparable and unfair prejudice to a person’s reputation. Such material must be handled appropriately and through normal criminal processes.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The opposition will not be supporting amendment No. 1 of the Greens.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Our concern really is with the definition provided for sensitive information as the minister has outlined. We certainly would not want to prejudice a person’s safety, but the fact is that the definition is wider than that used in the Law Enforcement Integrity Commissioner Act 2006 because it includes information that could prejudice a person’s reputation. I suspect that is quite an important grey area, but there would no doubt be information that could prejudice a person’s reputation if that person was acting poorly. You probably would want that information to come forward.

Proposed sections 8(2) and 9(2) of the bill provide that the CEO of the ACC or the Commissioner of the AFP may refuse such a request for disclosure on the grounds that the requested information is sensitive. We do not think it is necessary to include within the definition of sensitive information, information that could prejudice a person’s reputation. Otherwise we are going to exclude potentially a very broad range of material. Parliamentary committees are used to dealing with sensitive information, and they have procedures in place to deal with such information. For example, we can receive information in private session, expunge any such information from the transcript of evidence and forbid publication of the evidence. I think all of us in here are fairly familiar with the fact that committees can do that and that it is part of the normal working role of the committee.

On occasions it is the role of the committee to make judgments as to an individual’s conduct in its role to oversee and to improve the functioning of an agency. It is not to protect individual’s reputations if they have made poor judgments. Surely, that is what the existence of these committees are, in part, for. We are not talking about witch-hunts here. These committees should potentially be able to hurt people’s feelings if they have been acting poorly. These are people in positions of enormous responsibility, acting without a great deal of public oversight. This committee, which we acknowledge is a very important new proposition and innovation of the government’s, needs to be able to do its work effectively and not have this information excluded on the ground that somebody’s reputation might be harmed, if that person’s reputation is going to be harmed as a genuine consequence of actions or poor judgments that they have made.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

Just by way of information, I understand that the legislation does provide that the CEO can provide information to the committee if it is in the public interest to do so. I think that there is an opportunity for the issues you are talking about to be addressed by the parliamentary committee in that public interest.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

At this point I will just commend amendment (1) to the chamber and then move on.

Question negatived.

I can sense a pattern developing. By leave—I move Australian Greens amendments (2) to (4) on sheet 6182 together:

(2)    Clause 7, page 6 (after line 29), after paragraph (1)(f), insert:

            (fa)    to review and report on the exercise of powers under section 3UEA of the Crimes Act 1914, including a review of the report presented to Parliament under section 3UEB of that Act;

(3)    Clause 8, page 8 (lines 24 and 25), omit subclause (5), substitute:

        (5)    In making a determination under subsection (4), the Minister responsible for the ACC must include in it his or her reasons for making the determination.

     (5A)    In giving reasons under subsection (5), the Minister responsible for the ACC is not required to provide information that would disclose the content of the sensitive information.

(4)    Clause 9, page 9 (lines 26 and 27), omit subclause (5), substitute:

        (5)    In making a determination under subsection (4), the Minister responsible for the AFP must include in it his or her reasons for making the determination.

     (5A)    In giving reasons under subsection (5), the Minister responsible for the AFP is not required to provide information that would disclose the content of the sensitive information.

This is my final batch of amendments for this bill.

The substance that I want to speak of is simply caught in the proposed amendments No. 3 and No. 4 relating to the minister providing reasons for the failure to release information. This was canvassed in some depth by the committee’s work. If the AFP Commissioner or the CEO of the ACC decides not to refer information to the committee, the committee may then request the minister to make a decision as to whether the information should in fact be referred.

The minister, however, is not required to provide reasons if he or she agrees that the information should not be released to the committee, and that is what these amendments go to. The operation of the committee would be improved if we required the relevant minister to provide reasons for a failure to release information to the proposed committee. I have done enough committee work to understand just how frustrating it can be when you ask the minister to oversight and take a view, and what comes back from the minister’s office is simply a failure to accommodate or a letter that says ‘no’. I think the committee would find that it would be very helpful to have some kind of statement of reasons provided. We are not asking the minister to provide a specific explanation or to disclose material that is sensitive or against the public interest but merely to outline why the material should not be released without risking the confidentiality of the material itself.

These bills address quite serious issues of national security and human rights, and it was reflected in the government’s decision last August to release a public exposure draft of the bill. The government has revealed disregard for the detailed nuanced and thoughtful contributions that experts brought to the review process for these bills both at the public exposure stage and at the Senate inquiry stage. That is why I have taken a certain amount of the time of the chamber this afternoon and this evening to give a voice to the huge variety of people who provided input to these bills and who were then summarily disregarded by both the government and the opposition. Perhaps the government feels that it is its job to ignore anything that it does not feel is along the lines of what it has already proposed, but I think we have been let down quite comprehensively by the opposition tonight, which failed to advance even a single amendment.

It is not simply their absence of support for Greens amendments. Obviously they are fully entitled to oppose anything that we bring forward in here, but to just assume that the government got it completely right on all counts on legislation as complex and far reaching as this after the amount of work that has been done and the very strong contest of views that was brought to the committee’s work I think is extraordinary—that the opposition would then just sit back and knock our amendments off one after the other without proposing any ideas at all. We have to assume that somehow they think the government got it exactly right, and I find that very difficult to believe.

Before I leave these final three amendments, because these will be the last comments I make on this bill, I just want to briefly look at what we have not discussed tonight, what has not been debated and what was entirely left out of the ambit of this legislation. This is all material that is waiting for our overworked part-time Independent National Security Legislation Monitor, which does not yet exist. The bills barely scratch the surface we have been discussing tonight with respect to Australia’s antiterrorism laws—the subject of the Senate inquiry that elicited overwhelming support for a thorough and meaningful change in our antiterrorism legislation. The concerns that remain that we have barely touched on tonight are the definition of a terrorist act contained in section 101.1 of the Criminal Code, the offence of providing support to a terrorist organisation in section 102.7 of the Commonwealth Criminal Code, the offence of providing training to or receiving training from a terrorist organisation in section 102.5 of the Criminal Code, balancing the risk to national security against the rights of the defendant in section 31(8) of the National Security Information (Criminal and Civil Proceedings) Act that I spoke of at some length earlier and the requirement for lawyers to have security clearances in terrorism cases under the NSI Act, as I spoke of before, preventative detention orders which are proposed to be reviewed eventually by COAG—if the minister wants to update us as to the progress of that review that would be appreciated—and control orders to be reviewed by COAG. There was not a word about ASIO, who managed to escape this process entirely unscathed, unamended and unconsidered as far as we can tell.

I commend amendments (2) to (4) to the chamber. If the minister is able to provide us with any comfort or any update at all as to those other matters, particularly the ones before COAG, that would be greatly appreciated but I will end tonight as I began. This is a colossal missed opportunity not just from the government but from the apparent extraordinary silence of the opposition which simply disappeared from view towards the end of a process in which they had participated fully and I thought actually quite meaningfully. They disappeared when it came to the crunch and this is where we come to tonight. I commend these amendments to the Senate.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I commence where Senator Ludlam left off. The opposition did participate and thank you for your compliment. We did participate in a very robust and healthy way through the committee process. At the conclusion of the committee process we were satisfied with the amendments and we were satisfied with what the government is putting forward. Again, I will indicate that we will be opposing the three amendments (2), (3) and (4) that Senator Ludlam has just moved. He did not really address amendment (2) but if I could draw the attention of Senator Ludlam to page 7 of the bill which indicates at clause (h) that the committee has the power:

to inquire into any question in connection with its functions which is referred to it by either House of the Parliament, and to report to that House upon that question.

So either chamber of the parliament itself, the Senate or the House of Representatives, by simple majority can instruct the committee to inquire into matters that would fall within the purview of the amendment (2) that Senator Ludlam has indicated his support for.

The other matter is in relation to the reporting of the reasons for the minister not disclosing his or her reasons for making a determination under subsection (4). The amendments that Senator Ludlam is putting forward do not really strengthen those provisions because in 5A under amendment (3) the minister still does not have to provide the information and so what would be gained from the clause I do not know. Also we must give the minister the freedom to not disclose any information even if it is within the limited form that Senator Ludlam is suggesting. Even in a limited form material that is disclosed by the minister to the committee may include enough material for identification of a person or a reason that would be not in the interests of the minister, the agency or indeed the country. I indicate that we will not be supporting those final three amendments, (2), (3) and (4). We do support this bill, Senator Ludlam, as I indicated earlier. We did have robust discussion, as you know because you were present with me during the stages of the legal and constitutional committee and also as we have discussed around the table at the Australian Crime Commission and Australian Commision for Law Enforcement Integrity PJCs. We believe that there has been enough robust debate, enough thorough examination, which you acknowledge, so therefore we are satisfied with the government’s bills and that is why we will be supporting them.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

With respect to Greens amendment (2) the government does not support that amendment. It is our view that it is not necessary to add a specific function for the Parliamentary Joint Committee on Law Enforcement to review the exercise of the emergency entry powers proposed in the bill. To do so would be in our view inconsistent as the bill does not give the committee functions in relation to other specific powers. It confers a more general function of monitoring and reviewing the AFP and ACC in the performance of their functions which could include the use of any relevant powers. It is also open for parliament to refer any matter specifically to the committee for inquiry.

With respect to amendments (3) and (4) the government does not support those amendments. The minister can be asked by the committee to determine if information that the Australian Crime Commission or the Australian Federal Police has declined to provide to the committee is sensitive information and if so whether the public interest in providing it to the committee is outweighed by the prejudicial consequences. The bill currently provides that a minister is not required to disclose his or her reasons for making a determination. However, the minister does have discretion to provide reasons to the committee. The amendments as proposed would require the minister to include reasons for making his or her decision in a determination but would not be required to provide information that would disclose the content of the sensitive information. Given that the purpose of not requiring the minister to provide reasons was directed at protecting information that could disclose the content of sensitive information, the amendment as proposed would not add much to the existing provision. Finally, you asked a question about the COAG review. I am advised that it is due to commence in December 2010 and report within six months of that date. I am advised that it is on track, as expected, and that that time frame should be delivered.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Minister, when will the government be hiring the independent National Security Legislation Monitor?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

As I indicated in my earlier contribution, when we were discussing the first bill, I understand that the monitor is under active consideration at the moment. The technical answer, Senator, is soon, but I understand that the matter is in front of the Prime Minister at the moment.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I made this assertion before, and it is probably a little unfair to do so without testing your views on it directly. Have you held back on the appointment of that monitor consequent on the passage of this legislation—that is, were you seeking to avoid the monitor’s evaluation of these matters? Is it the case that you preferred to get this legislative package through before you held the monitor up? Will we be able to find evidence anywhere that the government in fact delayed the installation of this office until such time as these rather feeble bills—particularly the first one—cleared the parliament?

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Link to this | Hansard source

I am advised absolutely not. Any delay in appointing the monitor has had nothing to do with the passage of this legislation at all. The monitor, as you know, will play a role in work that proceeds from this point. I think I need to make it very, very plain that the answer to your question is: absolutely not.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question before us is that Greens amendments (2), (3) and (4) be agreed to.

Question negatived.

Bill agreed to.

Bills reported without amendment; report adopted.