Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The committee is considering Australian Greens amendment (12) on sheet 7594 moved by Senator Wright. The question is that that amendment be agreed to.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I would like to recap what is happening in this debate. Late last night, the government was ramming through laws that they say will make Australians safer. But we know that they involve a fundamental weakening of the rights and freedoms that make Australia one of the world's top democracies.

The government's approach to this bill has been rushed, and the bill is flawed. The Greens have said it, the country's top legal experts have been saying it and, as we saw yesterday, even the government-dominated Parliamentary Joint Committee on Human Rights has said it. Yesterday afternoon, Senator Smith, the Chair of the Parliamentary Joint Committee on Human Rights, stood in this chamber and told the Senate that parts of this bill are likely to be incompatible with human rights. That was a unified position that the committee took. I am on the committee and I know that, for the committee, that is as strong as it gets: parts of this bill are likely to be incompatible with human rights.

It is a damning review. The human rights committee has found the new declared area zones offence to be incompatible with human rights. Other parts of the bill have caused the committee to raise concerns about the right to freedom of expression, the right to freedom of movement, the right to freedom from arbitrary detention, the right to privacy and the right to a fair trial, as well as the right to a presumption of innocence. And yet this bill—if the government, aided by Labor and some of the crossbench, have their way—will pass this place in three short hours, by 12.30 pm today. In the committee stage of this debate, we can see there are still so many questions about how it will really affect people into the future and what the implications are.

Late last night, the Attorney-General was at pains to reassure us that the concerns raised about this bill by some of the country's top legal experts in the area of human rights and civil liberties—the Gilbert + Tobin Centre of Public Law, the Law Council of Australia, the Castan Centre for Human Rights Law, Human Rights Watch, Professor Ben Saul and the Human Rights Commission—should not worry us. But in the cold hard light of day, once again we have to remember and take stock of what this bill is seeking to do and, if passed, what it will do. It will change whether and where people in Australia travel; it will change the circumstances in which people can be detained and questioned by ASIO, customs and police; it will change the kind of personal information that is captured and stored at the airport; and the kind of public commentary or reflection on controversial issues that is legal. As we saw with the first tranche of national security legislation, it is simply too late to ponder the consequences and, in some cases, to rue them, once the legislation has been passed. I know that if this law is to be passed in haste we will regret it at leisure. Over time we will come to fully realise the freedoms we have traded away for a situation that many say will not actually make us safer.

Coming to the offence of advocating terrorism, this is a new offence where a person will be guilty of the offence if they intentionally counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorist offence and the person is reckless as to whether another person will engage in a terrorist act or commit a terrorist offence. It is a serious offence; it carries a maximum penalty of five years in prison. The Australian Greens' first amendment, item (12) on the sheet, substitutes 'an intention'—a fault element of intention—to commit the act for 'recklessness'. The Australian Greens say that this amendment is necessary because the offence of advocating terrorism in this bill duplicates and unnecessarily expands what are already-existing criminal offences which capture conduct or speech that advocates the commission of terrorist acts. For instance, there is already an offence on Australia's statute books to urge another person to engage in intergroup violence or violence against members of groups. There is already an offence to recruit others to join terrorist organisations or organisations engaging in hostile activities against foreign governments. There are already incitement offences which cover a person who urges the commission of an offence, such as a terrorist-related offence. It is already an offence to be a member of, or provide support to, a terrorist organisation. This Greens amendment seeks to tighten the scope of this new proposed offence to ensure that it will only apply to those who intend to cause another to engage in a terrorist act or commit a terrorist offence. This amendment is needed because this serious criminal offence, as it is currently drafted, only requires a person to be reckless as to whether another person will engage in a terrorist act or commit a terrorist offence.

The legal commentators from whom we have sought advice, and whose position is similar to the position that the Australian Greens are taking in relation to this, are the Gilbert + Tobin Centre of Public Law, the Law Council of Australia and Human Rights Watch. I have a question to put to the Attorney-General. It has been suggested that the new offence of advocating terrorism duplicates and unnecessarily expands existing criminal offence provisions, and contains terms that are so broadly defined that they will pose problems for prosecutors, as well as potentially encroaching on freedom of speech. Attorney-General, can you please explain, in clear terms, what the term 'promotes means in the context of this offence?

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

Let me respond to a few of the observations that have come from Senator Wright. First of all, Senator Wright, I wish you would not falsely claim that this legislation was rammed through the chamber last night. Each of the amendments—government, opposition, Green and Senator Leyonhjelm's—were dealt with by the chamber in an orthodox parliamentary debate, subject to no time limitation. There are time limitations in place later in the day, but last night's debate was not limited or circumscribed or foreshortened in anyway. You know that, Senator Wright, so why you would choose to say it was rammed through the chamber when in fact it proceeded in a routine, regular and orthodox parliamentary way I have no idea. Perhaps it is because you do not want to come to terms with the substance of the legislation that you make remarks like that.

Senator Wright, it is still not clear to me what your concern is. You seem to be saying in one breath that the problem with this new provision is that it duplicates existing law and therefore is unnecessary, and then in the very next breath you say it unnecessarily expands existing law and therefore takes the law beyond where it ought to be. You cannot have it both ways. You cannot say on the one hand that the provision is otiose because it merely restates what is already in the law and then in the next breath say the provision is dangerous because it takes the law too far beyond where it already is. It is not clear to me what your complaint is but, as I say, you cannot have it both ways.

The lacuna in the law that this provision seeks to fill is where the advocacy of terrorism is not caught by the existing law relating to the incitement of violence. That is the answer to your question. That is not merely my opinion; it is also the unanimous opinion of the Parliamentary Joint Committee on Intelligence and Security, which in its review of this bill observed—I am quoting from its report:

… the current incitement offence is not appropriate to capture the range of activity being encountered and investigated …

Senator Wright, I think you are a lawyer, are you not?

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I think you know I am, yes.

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

I thought you were. So you would be aware that the existing criminal law of incitement to violence requires a very direct correlation between the words that constitute the incitement and the violent act. But when we are dealing with the advocacy of terrorism—terrorism, as you know, is a defined term in the act—the immediacy of that correlation which the existing criminal offence requires is not always there. It is not necessarily there. This legislation seeks to address that area where the existing offence of incitement of violence is not available to prosecutors. It does that by saying:

(1) A person commits an offence if:

(a) the person advocates:

  (i) the doing of a terrorist act; or

  (ii) the commission of a terrorism offence … and

(b) the person engages in that conduct reckless as to whether another person will:

  (i) engage in a terrorist act; or

  (ii) commit a terrorism offence …

A terrorism offence is one of the existing terrorism offences set in part 5.3 of the Criminal Code. 'Advocates' is a defined term. 'Advocates' is not a term of art. It is not a term with a particular technical legal meaning, so it is defined by subclause 2 of the proposed section in these terms:

… a person advocates the doing of a terrorist act or the commission of a terrorism offence if the person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence.

What those words, those synonyms, seek to capture is the essence of advocacy, the essence of advocacy being an attempt by language or other verbal forms to persuade someone to do something. The relevant event being caught here is 'the doing of a terrorist act or the commission of a terrorism offence'. Now, Senator Wright, if you and your colleagues from the Greens party want to go out into the public space of Australia and say it should not be against the law to advocate the doing of a terrorist act or the commission of a terrorist offence, you go right ahead, Senator Wright. But the government believe, the opposition believe as well and most of the crossbench senators to whom I have spoken also believe that it should not be lawful in this country to advocate the doing of a terrorist act or the commission of a terrorist offence.

Lastly, Senator Wright, let me address what you said about freedom of speech. The Australian Greens having led the campaign against freedom of speech in the early part of this year, it seems to me, Senator Wright, that it is beyond bizarre that you would now be posing as a champion of freedom of speech. But, that being said, there is all the difference in the world between advocating the doing of a terrorist act or the commission of a terrorism offence, and expressing an opinion, bearing in mind that terrorism is defined in terms of violence or causing fear, on the one hand, and expressing a point of view, on the other hand. There is not a word in this bill—not a word—that impinges upon or restricts freedom of opinion. If a person wants to express radical views, if they want to promote or proselytise a radical view of the world or a non-mainstream view of the world, they are perfectly free to do so.

What they are not free to do and what they should not be free to do is to advocate the commission of a terrorist act or the commission of a terrorism offence, because that goes beyond merely the expression of an opinion. What that involves is encouraging or promoting or urging other people—almost always vulnerable people, I might say, who are susceptible to the injunctions of these predators—to do harm or violence to innocent people and, indeed, in many cases, to themselves. If, Senator Wright, that is okay with you, then that is a matter between you and your conscience. But I think most of the Australian people would agree with the government that it ought not to be lawful in this country to do so.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Attorney-General, I will pick up on a couple of things you said. First of all, I think you are a lawyer; is that right? Is my memory serving me correctly that you are a lawyer too?

Senator Ian Macdonald interjecting—

I did not start this, Senator Macdonald—so, a bit of respect, Senator Brandis. I do not think you would want to mislead either this chamber or the public who might be listening to this debate. First of all, let me make it really clear: at no time has this amendment sought to remove that provision. We are working with the bill that the government has drafted, but we are reflecting genuine and widespread concerns about the broad and risky potential of this offence to have unintended consequences for freedom of expression in Australia.

At no point did I say in my comments earlier that we should remove the term 'advocates'. I specifically referred to the word 'promotes' and I asked you a specific question about how that would be defined—and I allow you as a lawyer to tell us what would in fact amount to 'promoting' under this bill so that people who are listening have some idea of the type of behaviour or speech they may not be able to be involved with if the bill is passed.

I will say a couple of other things. One of them is that you quibbled with me about using the words 'ramming through' about these laws. Certainly, last night there was debate about various amendments that were being put up by the Australian Greens, by Senator Leyonhjelm and by the government. But the sad reality is that the time allowed for this debate has been truncated; there is a guillotine hanging over us—at 12.30. So, much as I would have liked to ask further questions about the amendments that were being moved last night, I had to be very careful, knowing that I had other, substantive matters to deal with today. That has been hanging over my head and, no doubt, over the heads of other people who might want to engage in the debate today. So that is why the Australian Greens say that there was no justifiable reason to have an arbitrary guillotine that allowed less than eight hours of debate in the Senate.

I will go to the question that I put to you, and I do not think I received an answer, because you went off to suggest that the Australian Greens somehow do not care about the safety of Australians and that we perhaps are not concerned about people who might be in the community advocating some form of violence against others in the form of terrorism. So I will come back to my question: can you please as a lawyer explain in clear terms what the term 'promotes' means in the context of this offence, given that 'promotes' is one of the words used to define the term 'advocating' or 'advocacy'.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Before the minister answers that, I have a similar question about definitions, and perhaps he could address both at the same time. I am wondering if the minister could indicate what the term 'reckless' means in the passage that he read out here.

Before I elaborate on that, could I say I am flabbergasted that Senator Wright should be complaining about guillotining bills and restricting debate when I sat through six years of dysfunctional government supported by Senator Wright and her party, when no fewer than 150 bills were guillotined, some of them very important bills, with not one word of debate, Senator Wright. Where was your holier-than-thou opposition at that time? You were part of it. You and your party were part of that disgraceful episode in Australian politics where important legislation was indeed rammed through with not one word of debate. For you to get up and say that two days of debate is restriction really shows the hypocrisy of the Greens political party.

I support the general thrust of the government's legislation. I just want to indicate to the minister that, whilst some people say this does perhaps have restrictions on things that we might have been able to do in the past, I am one of those—and I think I speak for the majority of Australians here—who are prepared to forgo just a little bit of the freedoms that I would otherwise have had if it means that I and my family and the people that I know, love and respect are a little safer in their daily events and lives.

This is a situation which the government and the majority of Australians have not created, but it is a real situation. We are, I guess, lucky—and perhaps you make your own luck here. We are well prepared and we have in place a number of agencies and facilities that allow us to stop these terrorist acts before they happen. But I think that, when I and all Australians—indeed, all citizens of the world—see again just what happened in Canada last week, we cannot help but think that could happen here.

I have to say that for years I have left my front door of my office in Parliament House open, because I always want my office to look like it is welcoming. If people want to pop in and see me, they do it. I have to say that in the last few weeks I have started to shut the door in case someone comes through.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Mr Chairman, on a point of order: Senator Macdonald is continuing the second reading debate. The issue before the chair currently is the amendment moved by the Greens. We are operating under a guillotine—a time limit—and I think it would be appropriate if we return to the matter at hand.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Mr Chairman, on the point of order: if Senator Leyonhjelm is that concerned, perhaps he should have taken the same point of order on Senator Wright when she was giving what was clearly a second reading debate speech.

The CHAIRMAN: Senator Leyonhjelm, I understand the point you are making, but it is not a point of order that I can rule on. I think the debate is still within the realms of the question before the Chair.

I will be brief. I am conscious of the need to deal with a lot of amendments from all sides and I do want the minister to explain to me how the term 'reckless' is defined and how it operates in this context. Senator Leyonhjelm is quite right: I did not take part in the second reading debate because I did not want to take 20 minutes as most contributing speakers did, therefore restricting others from the debate. I think it is appropriate in dealing with Senator Wright's amendment to indicate my view generally on her amendment, on the amendments being proposed by the government and, indeed, the whole bill, which I hope will be passed as amended. I repeat that most Australians are prepared to forgo some of the rights we have had throughout our existence if it means that people who might otherwise be harmed or killed are protected in this country.

Over the years I have had bits to do with ASIO, the Crimes Commission and the Australian Federal Police through the different committees I have been involved in. They do a magnificent job but they always abide by the rules—the rules that are passed by parliament. The people whom they are competing against—the organised crime, the terrorist cells, those who would harm Australians—never follow one rule. They do not worry about human rights or getting warrants or unlawful killings—all that just happens as a matter of course. We have to give our agencies the maximum powers that a democracy can possibly give them to enable them to fight—not for anything they might get out of it—to protect me, my family and all other Australians. I think it is essential that, within the constrained limits that the Attorney-General has spoken about and that do understand the way Australian democracy and freedoms work, we do have to give them maximum amount of powers. If that means giving up a little of what we always thought we had in the way of freedoms, then most Australians—I think I can speak for them—are prepared to forgo them in return for keeping themselves, their families and their loved ones safe.

Minister, in answering Senator Wright's question, I wonder if you could address the issue of how 'reckless' is interpreted.

The CHAIRMAN: Thank you, Senator Macdonald. Senator Brandis? Senator Collins.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I thought it might be useful for the opposition to deal with our position before we go into what might be a more lengthy question-and-answer discussion. Senator Wright, we have reached the provisions in the bill that deal with the very important issue of advocating terrorism. During my second reading contribution and others from the Labor Party—we did have a rather limited second reading debate—I did not cover the full detail of Labor's concerns about this area to assist the committee stage consideration or, indeed, the amendments that we will be moving. I will do that when we come to our amendments, but in relation to this particular amendment (12) I should indicate, as I think Senator Brandis has already noted in his comments, that Labor supports a new offence for counselling or urging the commission of a terrorist act. We believe that it is right that this captures those whose reckless conduct leads to someone committing a terrorist act. This Green amendment would mean this offence goes no further than existing incitement crimes which would apply already where someone urges or counsels a terrorist act intending that act to be committed. Senator Wright, that is our specific concern in relation to your amendment (12).

On some broader issues, I understand that, like Senator Macdonald, Senator Dastyari did not have an opportunity to contribute to the second reading debate but also wants to highlight to the government some of the important issues around concerns in the community about how we need to get advocating terrorism right in this bill. I hope there will be some small scope in this committee consideration for Senator Dastyari to cover a few points for the opposition as well, appreciating the limited time that we have available.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I do not want to unduly delay consideration of this amendment, but I do want to place on the record that I will support Greens amendment (12) moved by Senator Wright. I will also support Greens amendment (13). I will support the Labor amendments along the same lines. The intention of each of those is to limit the scope of the bill in relation to advocating terrorism, with various attempts to bring it closer to the definition of 'incitement', which I think is the appropriate approach. The Attorney-General says that 'incitement' is not appropriate. I am not a lawyer, just to make things clear, but I do think that something close to 'incitement' is the appropriate definition for this. I do not intend to speak on these amendments again, but I will be supporting each of these amendments—those of Labor and the Greens—to bring the definition of 'advocating terrorism' to something that I think we can live with.

I have to say that if it comes down to it I am probably an advocate of terrorism in terms of overthrowing the regime in North Korea and perhaps in Zimbabwe as well. We really are talking about specific circumstances in relation to this bill, yet the bill is not specific to those circumstances.

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

Let me deal with the questions that have been put to me by Senator Macdonald and Senator Wright. Senator Macdonald, you ask for a definition of 'recklessness'. I know, Senator Macdonald, that you are a lawyer and, from my recollection—because we have known each other for a very long time—a much respected lawyer in North Queensland before you turned your career to public service. So, Senator Macdonald, as you would be aware, recklessness is a term with a technical legal meaning as well as a common-speech meaning. The concept of recklessness involves doing something heedless as to the consequences of one's conduct. So it is something more serious than negligence but something less serious than intention, because it does not involve the element of volition but it does involve the element of doing something heedless of the consequences for others of your conduct.

It is given a reasonably architectural definition in division 5 of the Commonwealth Criminal Code, which I might read, just to give you a complete answer. Section 5.4 of the Commonwealth Criminal Code defines recklessness in these terms:

  (1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

  (2) A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

  (3) The question whether taking a risk is unjustifiable is one of fact.

Senator Macdonald, what we are dealing with here is recklessness in relation to the commission of a terrorist offence or performing a terrorist act. The way in which the provisions of section 5.4 of the Criminal Code would be attracted, particularly subsection (2), recklessness as to a result, could be seen in a case like this.

Let it be said that somebody advocates the doing of a terrorist act. If, in their advocacy, they were aware that there was a substantial risk that that would occur—that is, the terrorist act they advocate—and, having regard to the circumstances known to them, it was unjustifiable to take that risk—that being a question of fact to be determined objectively by a jury—that is where the recklessness element would be satisfied, and that is what it means. So, to put flesh on the theoretical bones here, we have all seen instances—whether directly or on social media—of hate preachers advocating, and saying, particularly to young people, 'Go out and commit a terrorist act.' Now that is not the offence of incitement to violence, as I tried to explain to Senator Wright, because there is not the immediacy of the connection between the words and the act. But I think, Senator Macdonald, an experienced lawyer like yourself would well understand that that is a circumstance of recklessness. If you are a person who advocates to impressionable, radicalised youth, that they should go out and commit a terrorist act—a terrorist act being defined elsewhere, of course, as an act of violence for a religious, political or ideological cause—then it may very well be that a jury would conclude: 'You were reckless as to the consequences. You were more than negligent; you were reckless—because in those circumstances, there was a very substantial risk that the audience whom you were addressing would go and do the very thing that you were advocating.' I hope that satisfies your inquiry, Senator Macdonald.

Senator Wright asks what is the definition of promotion. Senator Wright, with respect, you asked the wrong question, because what is being prohibited here is 'advocacy', and 'promotes' is one of the four verbs that are used to define advocacy. So it is the 'advocacy' of a terrorist act or the commission of a terrorist offence, that attracts the operation of the new offence provision. To deal with your question directly, a court would read or interpret that word in the context of the words that appear around it, applying ordinary canons of statutory interpretation. So the word 'promotes' would take its meaning from the words around it in the statute: 'counsels, encourages or urges'. None of which, I see, you seek to omit. You are probably aware, Senator Wright, that there are certain areas of the law where the word 'promotes' does have a more technical meaning—for example, in the promotion of companies. But that is an entirely different area of law. So the word 'promotes' can have a technical legal meaning but in this case it does not; it has its ordinary, common-speech meaning, derived from the words that appear adjacent to it in the statute, and that much is made clear by paragraph 700 of the replacement explanatory memorandum. Let me read it to you, since you are not evidently familiar with it—

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

No; I am familiar with it.

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

Well, then why did you ask the question, Senator Wright, if you are familiar with it?

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I can explain that.

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

However, let me read it to you:

The terms ‘promotes’ and ‘encourages’ are not defined. The ordinary meaning of each of the relevant expressions varies, but it is important that they be interpreted broadly to ensure a person who advocates terrorism does not escape punishment by relying on a narrow construction of the terms or one of the terms. However, some examples of the ordinary meaning of each of the expressions follow: to ‘counsel’ the doing of an act (when used as a verb) is to urge the doing or adoption of the action or to recommend doing the action; to ‘encourage’ means to inspire or stimulate by assistance of approval; to ‘promote’ means to advance, further or launch; and ‘urge’ covers pressing by persuasion or recommendation, insisting on, pushing along and exerting a driving or impelling force.

That is the way in which these expressions are treated in the replacement explanatory memorandum. But, as the explanatory memorandum also says—and as I said—the expressions will have their ordinary language meaning. Therefore, Senator Wright, you do not have to be a lawyer to know what these words mean. They have the same meaning in this section as they have in common speech. The courts and juries, I believe, given the guidance that this provision gives them, can be relied upon to decide whether or not conduct amounts to encouraging, urging, counselling or promoting.

Lastly, Senator Wright, because you did make some rather extravagant claims, I emphasise a point that is too often lost in this debate. We are criminalising conduct. You could not work out before whether this was unnecessary because it was already covered by the law or it was extravagant because it was not already covered by the law. But I think you settled on saying it goes too far because it is not already covered by the law. Whenever the parliament declares something to be unlawful and, indeed, a crime which is not currently a crime, it should do so after careful deliberation, which is why we are having this debate and why the Parliamentary Joint Committee on Intelligence and Security looked at this so exhaustively. But we should always remember that the ordinary principles of criminal law are not suspended. That means that the burden of proof lies on the prosecution to prove every element of the offence, including the recklessness element.

But, secondly, the criminal standard of proof also applies. Let's never forget that. In all of these debates we have about the language of particular statutes and safeguards, the greatest safeguard of all is a principle of English criminal law going back centuries—namely, that the standard of proof for a crime for every element of an offence is beyond reasonable doubt. That is the greatest safeguard of the law. It has been part of our law, as inheritors of the English legal system, for centuries. Every element of this offence, like any other criminal offence, needs to be proved beyond reasonable doubt.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I think it is important that I begin by saying that, much like Senator Leyonhjelm, I am not a lawyer. Only in the rarefied air of the Australian Senate, Senator Leyonhjelm, do we have to apologise for not being lawyers! But I assure you that, while in this place we apologise for not being lawyers, once we leave the Senate chamber it is they who have to apologise for being lawyers!

I have a few questions for Senator Brandis, but I wanted to touch on something that Senator Macdonald said that I think was unintentionally clumsily phrased. Senator Macdonald made the point that he is prepared to give up some of his freedom for security and safety. That is the kind of language and debate that we have heard a lot in recent times when we talk about these things. While I see the point that Senator Macdonald is making, I always get concerned when people use that kind of language because I hold—and I know others in this chamber do as well; maybe almost everyone in this place does—a slightly more sophisticated view, which is that our safety stems from our freedom, not the other way around. I do not like the characterisation that we sometimes make in this place or in simplistic media commentary that there has to be some kind of trade-off between being free and being safe and that there is somehow an equilibrium. While I understand in a practical sense that they sometimes can come into conflict with each other, I think we have to be more sophisticated and more intelligent in how we approach these debates and start talking about how we can have an environment in which we are safe and secure that makes us more free, not less free. That is the challenge that we have in this place.

I also want to note that I have a lot of sympathy for where Senator Wright is going with her amendments. I am going to explain a bit about why I slightly disagree with her. The point that is being made here—that is, making sure the bar is high—is the right one. I did not have a chance to speak in the second reading debate and I do want to speak specifically to the amendments, but in doing so I will ask for a tiny bit of indulgence from the Senate to talk around the issues that relate to the amendment as well as the wording of the amendments. Senator Brandis, I think it is really important as we go forward and look at the amendments in this debate that we acknowledge the real obligation here is not just what we do as law-makers to set the regulations but how we engage with the communities themselves—the Muslim communities in particular, which are obviously more directly impacted by some of the debates that are happening—and how we create an environment of engagement with them. I want to note and put on the record the incredible work of adult of Muslim leaders around Australia, in particular, as I come from Sydney, people like Samier Dandan from the Lebanese Muslim Association, people like Dr Jamal Rifi, people like Maha Abda from the Muslim Women's Association and Muslim community leaders who have actually stepped up and said, 'This isn't part of our community. There is no place for this in our society. We do not support this.' When we have these debates we have a real responsibility to acknowledge and respect the fact that those Muslim community leaders at the coalface who are confronting these issues on a regular and daily basis deserve our encouragement and our acknowledgement of the work they do.

We talk about who the victims are of those who are out there inciting or encouraging or promoting—whatever language you want to use—terrorism. I do not want to forget the fact that the victims of this are not just those people in Syria, Jordan, Iraq and the Middle East region where foreign fighters go to fight. They are the victims, of course, but in a lot of cases you have impressionable young people at a very delicate age who are, let us face it—I would like to use the word that Senator Leyonhjelm used on the outside of parliament, but I do not believe that the word beginning with the letter 'd' and ending in the word 'head' is parliamentary, so I will not use it. We forget that they also can be victims of this. The community becomes a victim. Their families also become victims. In a lot of cases they are impressionable youth, a lot of whom come from south-west Sydney, and—I want to be honest here—a lot of their life experiences up to a certain point were not all that different from some of my life experiences. That makes me wonder about and question what influences they have had and what community influence has at times led those impressionable youths to make those kinds of decisions.

Those in the Senate chamber know me well. I was four when I came to Australia. I came from that part of the world. I was born in a small fishing village in northern Iran. I look at the incredible opportunity and experience that this country has given me and, when I see a 17-year-old youth on the front page of The Daily Telegraph out there making ridiculous statements halfway across the world, I question what led to that happening. Why I support a lot of this is that part of what these laws are doing is acknowledging that the people who also have a responsibility are the people who incite, who encourage, who promote and who push impressionable youth to make foolish and ridiculous decisions. I would say to Senator Brandis that where this legislation is going on that front is a good step and that the implicit acknowledgements we can make are that there are many victims of terrorism, that there are many victims of this kind of behaviour and that the community itself and the families of these people also become victims. The responsibility should and needs also to lie with them. Do not get me wrong: if people travel halfway around the world to participate in horrible, brutal acts they deserve to be punished and as they commit crimes they deserve to have the full force of the law thrown at them. But the people who are inciting them, the people who are pushing them, the people who are promoting them, the people who are using their positions of power over impressionable youth to make them make these foolish and improper decisions also deserve to have punishment. The wording of the amendment concerns me, Senator Wright. I understand the intention of what you are trying to achieve. I have a very strong view that these impressionable youths can also at times be victims, based on the information that they are being provided.

On the idea about how much time there is for the debate, I think Senator Wright makes a fair point about the guillotine and deliberations. I am not an expert in Senate procedure; I do not pretend to be. I do not know what is an appropriate amount of time.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

You're not even a lawyer!

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I'm not even a lawyer; that's right. I think what has been a good part of this process—I have spoken to other senators as they were going through the parliamentary committee process and the recommendations were being developed—has been the ability to have had some of this debate out there.

Senator Wright interjecting—

What is important is that there be more of this kind of debate. I will take the interjection from Senator Wright, who made the point that my party was part of those deliberations and through the committee process her party was excluded. If that is the case, that does not allow for good legislation. The opportunity to have those kinds of debates in the committee environment as a rule leads to better legislation and better amendments. I acknowledge that Senator Brandis has really gone out of his way to make sure that, from the perspective of the Labor Party, we were fully engaged in this debate. I think that adds to it.

I also acknowledge the real work that a lot of not just the Muslim community leaders that I mentioned earlier but the parliamentarians who have been engaging with the Muslim community. I was at Lakemba mosque on Saturday morning with Scott Morrison. That is not something that most people can say they have done. It was good to see the Minister for Immigration and Border Protection go there. I acknowledge that Senator Fierravanti-Wells in particular has spent a lot of time engaging with the emerging communities of Sydney and the Sydney Muslim communities. We have to be careful in the language we use in this chamber and about the message we send. I am not going to get into a debate now about things like the debate we had on the burqa and whatnot, but we have to be very careful that we are not sending the wrong signal to the sections of the community that are doing their best to try to engage, who want to be part of this process. We have to empower them, speak highly of them and bring them in as part of the process. I know the law enforcement agencies have really gone out of their way—they deserve our congratulations—to try to engage with the community. If the real issue here is a group of impressionable, young, mostly, men—I think almost all are men—from a Middle Eastern background, some of whom were born here, many of whom came here while they were quite young, as I did, then the best people to counter the narrative that they are getting, of hate and of the incitement of violence, are those within their own community. It is about empowering those kinds of voices.

Senator Brandis, turning more specifically to the question, I hope this question is not too far from the amendment so that it is one you can answer. I would not mind if you are able to touch on, while we talk about the specifics and the wording of this amendment, what the government is doing not just in the letter of the law but to try and make sure that we are engaging with Muslim community leaders and empowering them. When we talk about the issue of those who incite and those who encourage reckless behaviour we must talk not just about punishing those who have committed the crime but encouraging those who on the opposite end are trying to send the right kind of message to the community.

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

The very message we are trying to send to the community is a message to discourage its members, particularly its young members, from engaging in this kind of conduct. In a sense, Senator Dastyari, once a person has been radicalised and once a person has travelled to Syria or northern Iraq to fight with ISIL—as, sadly, we have seen some young Australian men doing in media reports in recent days—in most cases, frankly, they are lost. They are lost. One aspect of social conduct that is very troubling is how swiftly apparently ordinary, everyday Australian youths can be radicalised. There have been many instances of individuals being radicalised in a very short span of time that we know about. That, Senator Dastyari, by the way is why we need to have this advocacy of terrorism offence. I do not seem to be able to get through to some members of the Senate, but I am sure you understand, Senator Dastyari, that, when you create a climate in which the advocacy of terrorism is acceptable, then you constrain your capacity to prevent those who by advocating terrorism encourage young men—sometimes unsure of their identity, sometimes unsure about the path or the course of their life, sometimes unsure about their belief system and where they fit into family or social structures—to embrace this radical solution.

So, Senator Dastyari, preventing young people becoming radicalised by measures, such as the measure we are now debating, is absolutely critical. The measures for the advocacy of terrorism are not directed, at least primarily, at the vulnerable young men who are the targets; they are directed to the evil old men who are the proselytisers, the predators and the advocates who seek to ensnare young men in this false, perverted and distorted version of the Islamic faith.

Another important element, Senator, is our engagement with Islamic communities. I am glad you were at Lakemba the other day with my friend Scott Morrison. He, Senator Fierravanti-Wells, I and many other members of the government in our own electorates and our communities have spent a lot of time—as I am sure opposition members of parliament like you have done as well—reaching out to these communities. I spoke in the debate last night about the many meetings I have had with leaders of the Islamic community to engage them as our partners in this task. They are some of the most enthusiastic supporters of this legislation—they are because they know it is designed to address a problem that arises, in particular, in their communities. It is intensely, deeply threatening to those communities and threatening to the vulnerable young people in their communities. We will continue to engage. When the Prime Minister and I announced a suite of measures on 5 August, one of the most important of those measures was a very substantial sum of money to invest in our Countering Violent Extremism programs, which are being delivered through the Australian Federal Police, through state police agencies and other government agencies.

There are other things that civil society does and can do. Only recently, on the day before the AFL Grand Final, I went to Melbourne to present the Bachar Houli Cup, which is a wonderful initiative promoted by the AFL in Melbourne. It recruits young Muslim men who want careers as AFL football players into a scholarship and mentoring program inspired by Australia's first great AFL player who professes the Islamic faith, Bachar Houli—it was my great privilege to meet him that morning—and engage them through sport. I can say, as a former sports minister, that engagement of young people through sport is one of the best possible ways of avoiding alienation and promoting a sense of belonging and inclusion. In a broad sense that is what the Prime Minister means whenever he uses the term 'Team Australia'—that we are all part of the team. In a narrow sense, that is what the AFL is doing, by saying to these young men who are participants in the Bachar Houli program, 'You are part of our particular team'—which is but an element of the great variety of the many community groups to which people feel a sense of belonging and which, in aggregate, amounts to 'Team Australia'.

Senator, the observations you have made are very wise, if I may say so. I know you have been very constructive in your own communities and networks, and have been a very constructive force in promoting this agenda of inclusion in trying to prevent young men feeling so alienated that they become radicalised and prey to the false doctrines of those who would seek to recruit them for evil purposes, to do violence to themselves and to others. The legislative element of this is only one element of a whole-of-government approach, and I appreciate the Labor Party supporting and seeing the wisdom of having this element securely in place.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I have a couple of very brief comments to make in response to the answers that the Attorney-General gave to my question about the meaning of 'promotes' earlier.

I would also like to seek the guidance of the chair. Last night, when I began to address this amendment (12) on sheet 7594, I indicated that I would like to move this amendment separately to amendment (13), although they are amendments that relate to the same offence of advocating terrorism. In the interests of time, I am wondering if it would be possible to deal with these two amendments together.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Wright, that is entirely appropriate, if you would like to. Is leave granted for Senator Wright to move amendment (13)?

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I would like to speak on the leave question.

The TEMPORARY CHAIRMAN: It is not a question; Senator Wright is seeking leave. Leave is either granted or it is not.

Leave is granted, but I want to address amendment (13), which I have not yet addressed.

Leave granted.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I move Australian Greens amendment (13) on sheet 7594:

(13) Schedule 1, item 61, page 64 (line 1), omit "promotes,".

The TEMPORARY CHAIRMAN: We are now considering amendments (12) and (13) on sheet 7594 standing in the name of the Australian Greens.

I would like to do that; indeed, we have been discussing the second amendment inadvertently anyway, which is removing the word 'promotes' from the definition of advocating terrorism. We have been having a relevant discussion about that particular amendment.

If I could come back to the question that I posed to the Attorney-General, which was asking for what the meaning of the word 'promotes' is. The Attorney-General suggested that it takes its ordinary meaning. In that case, I guess any of us in the chamber would probably be equipped to try to define what 'promotes' means.

The Attorney-General tried to reassure me about the concerns that I was expressing, but that have also have been expressed by many legal commentators, about the broadness of the word 'promotes' and the uncertainty that that would create, in terms of understanding whether particular behaviour would be defined to be promoting terrorism. The Attorney-General was wanting to reassure us that if it went to a court case and a prosecution, then the burden of proof is 'beyond reasonable doubt'. However, one of the concerns raised is that, when we are dealing with laws that do not define particular behaviours with certainty and clarity, there is a chilling effect on those people who do not want to end up in a court where the prosecution has to be put to the standard of proof of beyond reasonable doubt. The risk is that people will pull right back from what would, potentially, be considered to be legitimate activity—because they are justifiably fearful about the consequences.

The Attorney-General also sought to reassure us that the government's view on what 'promotes might mean is set out in the explanatory memorandum. But—as Senator Leyonhjelm has pointed out several times in this debate already—courts, in interpreting legislation, will only have recourse to the explanatory memorandum if they feel it necessary to do so. In fact, it is quite rare. They would generally prefer to look at the wording of the offence itself in the legislation. That is why it is also desirable to have clarity and certainty about what words and terms mean.

An example that has been raised by legal commentators to illustrate the risks associated with having terms like 'promotes'—where it is not really clear how far they extend—is that of a person who 'likes' a Facebook comment which contains a favourable reference to terrorist activity. Would that fall within the definition of 'promoting or advocating terrorism to others'? What about someone who is wearing a T-shirt with an ISIL symbol on it? Although that is not a T-shirt that would be in my wardrobe, and I would not be encouraging my kids to wear it—it would be abhorrent to me—that would be, arguably, a legitimate form of political expression in Australia. I think most of us would be reluctant to prevent it—someone indicating an allegiance to something that we do not necessarily agree with. But there are serious issues here about freedom of expression and how far that freedom of expression may be affected by this legislation. So in absolute good faith, that is the reason that, if we cannot get clarity about the word 'promotes', the Greens will be seeking to have the word 'promotes' removed from the definition of 'advocating terrorism'. That is all I intend to say in this debate. I seek leave to move these amendments together.

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

Chairman, could I respond to that, before Senator Collins makes her contribution?

The TEMPORARY CHAIRMAN: Yes.

Senator Wright, I have told you and I have pointed out to you the relevant paragraph of the explanatory memorandum. The word 'promotes' has its common-speech meaning, so please do not say to the chamber that I cannot tell you what it means, when I have just told you what it means and I have just directed you to a longish discussion about the meaning in the explanatory memorandum. Frankly, Senator Wright, because it has its common-speech meaning you need look no further than the Oxford English Dictionary or the Macquarie Dictionary to satisfy yourself what the word means if you do not already know.

There is no useful purpose to be served by imagining hypothetical instances of what may or may not be caught by a statutory definition expressed in common English, because that is what courts do. We have a separation of powers in this country. It is not for the parliament to define, by legislation or by regulation, every single imaginable instance. That would be bad legislative practice. It is not for the parliament to set out in an act of parliament whether, for example, a T-shirt or a particular form of words is caught by a general statutory prohibition. That is what courts do. They apply the generic language of statutes to the facts of particular cases.

I think we can rely upon and trust the judges and juries to apply this clear statutory language to particular instances. The debate is not served by imagining instances which could conceivably come before the courts and ask, 'What does the statute have to say about that?' That is not our job. It is not my job as the Attorney-General and the person moving this bill; it is not your job or our jobs as senators deliberating upon this bill; it is the job of the courts to apply the law.

Senator Wright, I do not think I need go beyond that. I have already made the point. I do not want to be tedious and repeat myself, but it does not seem to be getting through to you that this is not about freedom of expression. This is about the advocacy of terrorism. The advocacy of terrorism is not the expression of an opinion; it is the injunction to an act of violence. If you cannot see the distinction, Senator Wright, I suspect most senators can.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

As I indicated before, I am happy for the Greens to move amendments (12) and (13) together. However, my earlier comments were quite discrete with respect to amendment (12). Whilst I indicated that we were now dealing with the 'advocating terrorism' element of the bills and that we had circulated amendments to deal with that issue, I would like to deal with Labor's position in more detail at that stage.

I should now, for the benefit of the Senate, indicate that Labor has circulated revised and further amendments because, through further consideration and discussions, we have determined to take a different approach to dealing with this issue. I will come to the detail of those when I receive advice as to where in the running sheet we should address those amendments.

With respect to Greens amendment (13), which was similar to our previous approach, in the amendments that we first provided, I should indicate that on the basis of Labor's new approach addressing this issue we would be opposing amendment (13) with respect to removing the word 'promote'.

I appreciate the Greens' concern here. Indeed, up until recently we had sought to address the issue in a similar way. On the basis of further advice—senators will see our changed position in amendments on sheet 7605—we believe that this approach ensures that our concerns that the breadth of these provisions not touch behaviour which would not be reasonably regarded as advocating terrorism are dealt with in this new fashion.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The committee is considering the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 and amendments (12) and (13) on sheet 7594 standing in the name of the Australian Greens and moved by Senator Wright. The question is that the amendments be agreed to.

Question negatived.

The TEMPORARY CHAIRMAN: We will now move to opposition amendments. Is it appropriate, Senator Collins, for us to deal with opposition amendment (1) on sheet 7601 (revised) and opposition amendment (1) on sheet 7605 concurrently, now?

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

At this stage I hope to proceed simply with amendment (1) on sheet 7605. I move the amendment:

(1) Schedule 1, page 64 (after line 14), after item 61, insert:

61A After subsection 80.3(1)

Insert:

(1A) Without limiting subsection (1), section 80.2C does not apply to a person who engages in good faith in public discussion of any genuine academic, artistic, scientific, political or religious matter.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

61B Subsection 80.3(2)

After "subsection (1)", insert "or (1A)".

As I mentioned before, these deal with our further considered approach in relation to managing our concerns about advocating terrorism. As we have indicated, we are concerned about the breadth of the new 'advocating terrorism' offence. In our consultation with the Australian community—and especially with representatives of the Muslim community, that I think Senator Dastyari has covered today—we have heard concerns that this new offence might capture quite legitimate speech on controversial political matters or that it might capture legitimate religious discussion, debate or preaching.

Labor agrees with the need for an offence addressing conduct which might cause others to engage in terrorism. We know that there is a line to be carefully drawn. We would never want to criminalise legitimate religious conduct or to cause the Muslim community to fear that honest religious activity would be criminalised. That would be completely contrary to our purpose.

Labor's amendment would expand the existing good faith defence in section 80.3 of the Criminal Code as it applies to the new advocacy of terrorism offence to make it clear that those who engage in good faith in public discussion of any genuine academic, artistic, scientific, political or religious matter will be protected from liability. We think this strikes the right balance. We support the new offence, but we want to make sure that it does not capture innocent conduct. We think that this amendment will make sure that this new offence does not go too far.

I am in the hands of the Senate as to whether, given that these amendments have been recently circulated, we might want to defer consideration to a later stage in the committee stage of debate to allow some consideration of the detail of these. Maybe I will add some humour to the debate at this stage. I also am not a lawyer. It might entertain senators to understand that Senator Brandis, many years ago, had assumed I was a lawyer, to which I laughed and indicated that it might have been my major in logic!

Senator Brandis interjecting—

This was many years ago, Senator Brandis, I think in the context of the 'children overboard' investigation. That said, I obviously have been dealing with making laws for many years. I appreciate that some time to consider the new approach that Labor has taken on this issue might be important to other senators, so I am in their hands as to whether they might seek to defer dealing with these amendments until later in the debate, if some further consideration is warranted.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I am in a position to indicate to the opposition that the Greens would be happy to deal with this now and that we would be supporting the amendment.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I also wish to advise that I will support this amendment. It is very well drafted, very well thought through and I think it would be difficult for the government to oppose it. Bear in mind that we have had the word 'bipartisan' used a great deal in the debate about this bill and also the national security bill that we considered last month. I just make the comment that I think bipartisanship works both ways.

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

The government opposes the Labor Party's amendment. This is, as Senator Collins has said candidly, the second position the Labor Party has taken on this issue. There has been some reconsideration evidently within the Labor Party's inner circles. I welcome the fact that the initial amendment has been withdrawn, but nevertheless the government cannot support this amendment. We do not support the amendment for a very simple reason, Senator Collins: it is entirely unnecessary because what the amendment does is provide—we are talking about 7605 at the moment?

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

No, Senator Brandis. We are dealing with 7601.

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

I am sorry.

Honourable senators interjecting—

The TEMPORARY CHAIRMAN: No, I beg your pardon, senators. We are dealing with 7601.

That is not what Senator Collins was talking about. She was talking about 7605.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Amendment (1) on 7605.

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

Senator Collins and I understand each other. We are dealing with a proposed amendment to subsection 80.3(1) of the Commonwealth Criminal Code, by which the opposition would include a provision specifying that section 80.2C—that is, the advocacy of terrorism offence—does not apply to a person who engaged in good faith in public discussion of any genuine academic, artistic, scientific, political or religious matter. The government opposes this amendment for a couple of reasons. On a narrow reading it is unnecessary because what section 80.2C would do is make it an offence to advocate terrorism—to advocate the commission of a terrorist offence or to engage in a terrorist act. It is inconceivable that a person could, if they are advocating the commission of a terrorist offence or engagement in a terrorist act, be merely acting bona fides in a public discussion of political or religious matters.

The amendment that Senator Collins has moved, for reasons I explained to Senator Wright earlier in the morning, is quite unnecessary. There is nothing in the proposed advocacy of terrorism offence which would capture the expression of political or religious opinions, unless they were to trespass beyond being merely the expression of opinions and become the advocacy of violence. That is what this captures. The distinction between the expression of opinions and the advocacy of violence is a very clear distinction. So the Labor Party amendment, on a strict view, is unnecessary.

It is also invidious for another reason. You will recall that I said to Senator Wright before that we should always conduct these debates about the introduction of new criminal offences mindful of the fact that the onus of proof lies on the prosecution to prove beyond reasonable doubt before a jury that every element of the offence has been committed, and the jury must also consider any defences that might be raised. The very vagueness of the terms 'academic', 'political' or 'religious' matters as such could very well cause confusion in the minds of jurors. I would not expect that the typical juror would be a scholar of the Koran. Let us say that, in relation to a particular prosecution in which terrorism was advocated, it was said by an expert witness, 'This is really consistent with a particular passage of an Islamic holy book.' There are a variety of claims made about every religious faith. There are a variety of contestable claims made about what constitutes the doctrine of every religious faith. I have said from start to finish in this debate that Islam is a religion of peace and that those who preach the doctrines of ISIL and Jabhat al-Nusra and the other radical deviants from that religion do not represent the views of that religious faith. But let us say that in a prosecution a particular scholar with a particular point of view were to contend to the contrary. Does that mean that a jury could not be satisfied beyond reasonable doubt that there should be a prosecution even though what was involved constituted the advocacy of terrorism? So I think, from a technical point of view, this amendment is unnecessary, but from a practical point of view, from the point of view of giving effect to the amendment in the real-world circumstances of a criminal prosecution, it may very well defeat the effect of section 80.2, and that is why the government oppose it and we call on the crossbenchers other than the Greens—who, of course, would support this—to oppose it as well.

The TEMPORARY CHAIRMAN (10:53): For the purpose of the committee, I called upon 7601 when I called Senator Collins, but we will deal with 7605. Senator Collins, I would now invite you to move that amendment formally.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Thank you, Chair. I am happy to move as you suggested, but I understood that, when encouraged to deal with 7601 and 7605, I said I sought to just proceed with 7605.

The TEMPORARY CHAIRMAN (10:54): That is fine.

I have moved it, but I am happy to do so again if it clears that up. As I think I said previously, I was prepared to defer consideration of this, but the senators in the chamber have indicated their positions. The government has too. I am quite disappointed that, given the consultation and effort that has been put into settling this matter, the government has indicated that it will oppose these amendments. Although senators on the crossbench may not have been party to those discussions, into which some considerable effort has been put overnight, to try to reach an acceptable understanding, I would encourage them to understand that these amendments represent a move from Labor's first approach to address this very important issue, as was highlighted by Senator Dastyari. The Australian community's concern is that we get this balance and this provision right, since it is important to our multiculturalism, to our nation and to protecting Australians, whatever their race or creed. I encourage senators on the crossbench, even reflecting on the reservations that Senator Brandis may have made, to err on the side of caution and to support these amendments on that basis.

The TEMPORARY CHAIRMAN (10:55): I invite you to move the amendments, Senator Collins.

I thought I had moved them twice now.

The TEMPORARY CHAIRMAN (10:55): No. The first time, Senator Collins, you put it to the Senate about deferring the amendment and you never actually moved it, that I recall.

I do so move.

The CHAIRMAN: The question is that opposition amendment (1) on sheet 7605 be agreed to.

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

by leave—I move government amendments (17), (18) and (21) together:

(17) Schedule 1, page 64 (after line 16), after item 62, insert:

62A Subsection 100.1(1) of the Criminal Code

  Insert:

  engage in a hostile activity has the meaning given by subsection 117.1(1).

(18) Schedule 1, item 71, page 66 (lines 24 and 25), omit "(within the meaning of subsection 117.1(1))".

(21) Schedule 1, item 73, page 67 (lines 11 and 12), omit "(within the meaning of subsection 117.1(1))".

These amendments are technical amendments. Amendment (17) inserts a definition for the term 'engage in a hostile activity' into section 100.1 for the purposes of part 5.3 of the Criminal Code. Amendment (21) is a consequential amendment to amendment (17). The effect of the amendments would be to provide that for the purposes of part 5.3 of the Criminal Code 'engage in a hostile activity' has the same meaning as it has where it is defined in the new section 117.1(1) of the Criminal Code. The amendments amend the need to cross-reference that subsection each time the expression is used.

Question agreed to.

by leave—I move government amendments (19), (20) and (22) to (24) together:

(19) Schedule 1, item 71, page 66 (line 26), omit "or a foreign country".

(20) Schedule 1, item 71, page 66 (after line 29), at the end of paragraph 104.2(2)(b), add:

     ; or (iv) been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914).

(22) Schedule 1, item 73, page 67 (lines 13 and 14), omit "or a foreign country".

(23) Schedule 1, item 73, page 67 (line 17), omit "and", substitute "or".

(24) Schedule 1, item 73, page 67 (after line 17), after subparagraph 104.4(1)(c)(iv), insert:

     (v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); and

These amendments implement recommendation 9 of the Parliamentary Joint Committee on Intelligence and Security by separating the grounds for requesting, making, confirming and varying a control order on the basis of a conviction for a terrorism related offence in Australia, on one hand, and a foreign offence. These amendments also limit the ground in relation to foreign convictions to circumstances where the conduct that resulted in the conviction would be a terrorism offence if it occurred in Australia. The practical effect of the amendments is to require a correlation between a foreign conviction and conduct that would be considered a terrorism offence in Australia. As such, these amendment seek to provide confidence that the control order regime will apply only in relation to the recognised Australian standards of criminal law.

Question agreed to.

I move government amendment (25):

(25) Schedule 1, page 69 (after line 20), after item 81, insert:

81A Subsection 104.23(1) of the Criminal Code

  Repeal the subsection, substitute:

(1) The Commissioner of the Australian Federal Police may cause an application to be made to an issuing court to vary, under section 104.24, a confirmed control order, by adding one or more obligations, prohibitions or restrictions mentioned in subsection 104.5(3) to the order, if the Commissioner:

  (a) suspects on reasonable grounds that the varied order in the terms to be sought would substantially assist in preventing a terrorist act; or

  (b) suspects on reasonable grounds that the person has:

     (i) provided training to, received training from or participated in training with a listed terrorist organisation; or

     (ii) engaged in a hostile activity in a foreign country; or

     (iii) been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or

     (iv) been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914).

This amendment further implements recommendation 9 of the Parliamentary Joint Committee on Intelligence and Security by separating the grounds for requesting a variation of a control order on the basis of a conviction for a terrorism-related offence in Australia on the one hand and a foreign offence. It is, in a sense, an analogue of the previous amendments.

Question agreed to.

by leave—I move government amendments (28), (29) and (30) together:

(28) Schedule 1, item 94, page 72 (lines 10 and 11), omit the item, substitute:

94 Paragraph 105.8(6)(a) of the Criminal Code

  Repeal the paragraph, substitute:

  (a) any of the following:

     (i) the true name of the person in relation to whom the order is made;

     (ii) if, after reasonable inquiries have been made, the person's true name is not known but an alias is known for the person—the alias of the person in relation to whom the order is made;

     (iii) if, after reasonable inquiries have been made, the person's true name is not known and no alias is known for the person—a description sufficient to identify the person in relation to whom the order is made; and

(29) Schedule 1, page 72 (after line 20), after item 95, insert:

95A Subsection 105.8(8) of the Criminal Code

  After "must", insert ", as soon as reasonably practicable after the order is made".

(30) Schedule 1, item 96, page 72 (lines 21 and 22), omit the item, substitute:

96 Paragraph 105.12(6)(a) of the Criminal Code

  Repeal the paragraph, substitute:

  (a) any of the following:

     (i) the true name of the person in relation to whom the order is made;

     (ii) if, after reasonable inquiries have been made, the person's true name is not known but an alias is known for the person—the alias of the person in relation to whom the order is made;

     (iii) if, after reasonable inquiries have been made, the person's true name is not known and no alias is known for the person—a description sufficient to identify the person in relation to whom the order is made; and

96A Subsection 105.12(8) of the Criminal Code

  After "must", insert ", as soon as reasonably practicable after the order is made".

These amendments implement recommendation 11 of the Parliamentary Joint Committee on Intelligence and Security by providing that an initial preventative detention order can only be made in relation to an alias or by using a description of the person where the person's true name is not known and the description is sufficient to identify the person. The effect of the amendment is to ensure that a preventative detention order can only be made using an alias or description of a person where the issuing authority is confident that the alias or description satisfactorily identifies the person.

Question agreed to.

Debate interrupted.