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

I have a few questions for the minister, if I may? Minister, in your summing up speech you referred to the constitutional robustness of this bill not having been made publicly available and that you have relied on the Solicitor-General's advice. As a result, getting everyone in this place to agree at least is, as it were, legislating in the dark. Would you be able to make that advice public, please?

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

I do not think I used the word 'robustness', Senator Leyonhjelm. What I did say was that we have throughout been informed by the advice of, among others, the Solicitor-General, the Australian government solicitor, and constitutional lawyers within my department to ensure that the bill is in the strongest possible constitutional shape.

It is not the practice of Australian governments of either party to make public legal advice on these matters—in particular advice from the Solicitor-General, and I do not intend to depart from that long-established practice.

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

Thank you, Minister. In that case I will change my line of inquiry. As you will see from the amendments circulating in my name, I seek to unwind the retrospective provisions in item 8 of schedule 1. I do acknowledge that the retroactive provisions are narrow and only apply to convictions up to 10 years before commencement for sentences of at least 10 years. On that basis, it would appear that you have certain people in mind to which they will be applied. Is that the case, minister?

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

Certainly, there are people to whom those provisions would apply, but we have not drawn this legislation in an ad hominem fashion. We have drawn this legislation—as you rightly say, Senator—'narrowly' because it embodies a very important principle, a principle that has been part of our law since 1948—as I explained. We do not legislate in an ad hominem fashion. We have configured the bill in this way because we think the principles underlying it are sound.

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

Yes, Minister, I accept that, but could I ask: if you do not have particular people, particular individuals, in mind, why did you choose 10 years and not eight or six or 12? Is there anything specific about 10 years? If the intention is to keep us safe from certain individuals, why 10?

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

Some of the premises of that question are based on an incorrect assumption which I answered in response to your previous question, Senator Leyonhjelm. Many of the terrorism offences in the Criminal Code provide for imprisonment for up to 10 years. Ten years is a common standard used in the criminal law. In all the circumstances, it seemed to be the appropriate standard to apply in this case to reflect the gravity and seriousness of the terrorism offences to which it could potentially apply.

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

Thank you, Minister. First of all, I do not understand the first sentence of paragraph 205 on page 39 of the supplementary explanatory memorandum. This is seeking to explain the application of section 33AA of the bill. I am wondering if you would please read it to the chamber and explain it.

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

Paragraph 205 of the supplementary explanatory memorandum, if we have the same iteration of the document, reads:

This provision is not retrospective as it does not have the provisions of the amended Bill apply prior to the day after the Royal Assent. However, it does capture conduct that commenced before, on or after the commencement of the amended Bill.

That reflects, Senator Leyonhjelm, what you have yourself acknowledged to be a very narrow operation of this particular provision.

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

I have no wish to be pedantic, Minister, but the sentence says:

This provision is not retrospective as it does not have the provisions of the amended Bill apply prior to—

This is curious language, and I confess I do not understand it.

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

I am sorry if I cannot assist you, Senator Leyonhjelm, but I did try in my summing up speech to explain the way in which this provision will operate, and I thought you did gather that it applies only to people who within the last 10 years have been convicted of an offence with imprisonment for at least 10 years. I must confess that I am not the draftsman of the explanatory memorandum, but I think the point that the draftsman is trying to make in paragraph 205 is that this is not a provision like a retrospective provision, which creates a liability which did not exist before. This only operates in relation to people who have committed an offence which was a pre-existing offence. So the retrospective element, if you like, of this provision is the visiting upon such a person of a new consequence, not the creation of a new offence.

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

Minister, I note that officers of law enforcement and intelligence organisations, pursuant to section 35AB, do not risk revocation of their citizenship if they assist terrorist organisations. Does the government envisage that Australian officers of law enforcement and intelligence organisations might assist terrorist organisations?

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

Before I answer that question, can I add to my answer to your earlier question. Of course, the recommendation as to what we might describe as limited retrospectivity in relation to section 33AA was a PJCIS recommendation.

Now, Senator, the provision of the bill to which you have drawn my attention is section 33AB; is that right?

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

35AB.

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

Section 35AB, yes. You have left out some very important words, Senator. The exemption is in relation to conduct engaged in by 'a person in the proper performance of a function of an Australian law enforcement or intelligence body'. We discussed this, I remember, in a different context during some of the earlier counter-terrorism legislation.

As you know, from time to time law enforcement officials and members of the intelligence community undertake covert operations in the proper performance of their duties as intelligence officers and law enforcement officers. In undertaking those covert operations, they might find themselves associating with terrorists or associating with people who are engaged in terrorism attack planning. In fact, the whole point of a covert operation of that kind would be to penetrate a group of people covertly planning a terrorist operation. In the ordinary manner in which intelligence officers and law enforcement officers undercover operate, they may have to, as it were, play along to ensure that their identity as an intelligence officer, for example, is not apparent or revealed to the people who are engaged in planning the terrorism operation. Technically, in those circumstances, they might commit the crime of participating in a criminal conspiracy or commit the crime of engaging in preparation for a terrorism act because they were playing along for the purpose of in fact discovering and stopping the commission of that act of terrorism. So, routinely, this is not an unusual provision at all. It is a routine provision both in Commonwealth law and in state law to protect undercover officers, undercover intelligence officers or police officers who are engaged in the penetration of criminal networks.

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

You may have partially answered this question already, but I am aware that the Kurdistan Workers' Party, the PKK, is currently listed as a terrorist organisation. Given this, can you advise this chamber whether any Australian government employee has assisted the Kurdistan Workers' Party in its fight against Islamic State?

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

I think I will take that on notice. We do not ordinarily talk about what has been disclosed by operational intelligence.

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

You may also want to take this on notice, although perhaps not. Given that the Kurdistan Workers' Party is leading the fight against Daesh and appears to be the only body supporting civil liberties in the region, is it wise to treat as terrorist sympathisers those who support it?

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

It is a very good question you ask, Senator Leyonhjelm, and it poses this dilemma, which I know we have discussed privately: should Australian law or the policy underlying Australian law—that is, that it should be against Australian criminal law for an Australian to fight in a foreign civil war as a private individual—be applied universally? There are some who say there are some virtuous participants in foreign civil wars and there are some who say that the Kurdistan Workers' Party is one of them. There is no doubt that in some aspect of its activity the Kurdistan Workers' Party does fight against ISIL, which is a common enemy between that party and Australia. The problem with adopting, as it were, a case-by-case approach to this is the uncertainty of the message it would send to the Australian public if we were to say on the one hand that it is all right to fight in a foreign civil war on behalf of one belligerent irregular army or group but in another case that it is not okay to fight in a foreign civil war on behalf of a different belligerent army or group.

So the view that Australian governments of both persuasions have taken since this provision, the genesis of which is the 1979 foreign incursions and recruitment act, is that it is better to have a general rule but to create a circumstance of excusal so that a prosecution under that provision may only be commenced with the permission or the fiat of the Attorney-General. As you know, ordinarily the permission of the Attorney-General is not required for the commencement of a prosecution. The commencement of a prosecution is ordinarily entirely a matter for the exercise of a discretion by the Director of Public Prosecutions. But in certain circumstances—and there are a number of examples of this in our law, of which this is one—because of the unusualness of the provision, because of the very considerations to which you advert, Senator Leyonhjelm, the parliament has decided that before a prosecution can be commenced it has to be authorised not just by the Director of Public Prosecutions but by the Attorney-General in his capacity not merely as the first law officer but as the politically answerable minister who must take responsibility for the fact of committing such a prosecution.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Just while we are on the PKK, it has come to my attention that we are actually supplying them arms and humanitarian supplies. So how does that work when they are a terrorist group? If you are saying they are terrorists, if a terrorist would be an enemy, is this why you have a problem with treason and sedition laws—because actually, if you put it in context, you would actually be helping out the terrorists, and therefore you would be coming under terror or sedition laws? Come on—why don't you just remove them from the list?

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

The reason they are on the list is that the list—that is, a list of terrorist organisations that is published under machinery provided for by the Commonwealth Criminal Code—provides that the intelligence experts, not politicians, recommend applying certain criteria to whether or not certain organisations should be listed as terrorist organisations. Senator Lambie, there are many of us in this chamber—and I know you are one of them and I am one as well—who take a very close interest in these matters, but I do not think any of us would be so bold as to say that we are intelligence specialists, so we rely upon the professional advice of intelligence specialists in making this professional judgement.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

That is not what I am asking. What I am asking is: if they are classified terrorists and you are supplying them arms and they are now the enemy and you are assisting them by any means whatsoever, where does that put the government that is supplying them with arms? That is what I am asking you—just a clean-cut answer.

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

Senator Lambie, I am trying to address your question on why it is that these provisions exist in our law, and I have tried to explain to you and to Senator Leyonhjelm as best I can the rationale for those provisions. This particular organisation, as I understand it, has a variety of different activities, and the advice to us of the intelligence professionals is that, because of at least some aspects of its activities, it should be listed as a terrorist organisation under the Criminal Code, and it is. But I should also point out to you that within this bill there is a narrower listing provision so that not all organisations listed under the Criminal Code are organisations to which the relevant provisions of this bill will apply. It is only those from within the existing list of proscribed terrorist organisations that the minister administering this bill declares. So there is, as it were, a process of double declaration.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Should this bill pass and it be subsequently successfully challenged in the High Court, have you done an analysis of what it is going to cost the taxpayer?

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

I know what the Solicitor-General's annual salary is: it's more than yours or mine! The Commonwealth is engaged in constitutional litigation quite often. That constitutional litigation is usually led by the Commonwealth Solicitor-General, who is paid a salary. His salary I dare say is considerably less than the cost of a private senior counsel of equivalent standing, by the way. So, the cost of constitutional litigation in a sense is already built into the salaries paid to the Solicitor-General and other counsel and government lawyers who are engaged in defending constitutional litigation on behalf of the Commonwealth.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

So, you cannot give the Australian taxpayer a guarantee that this is not going to make its way to the High Court and be successfully challenged. Why are you even bothering with the laws? They are not watertight, are they?

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

I certainly am not going to tell you that somebody might not choose to challenge the laws. Under the Constitution, anyone with the relevant interest can challenge a law on the grounds of constitutionality. But I cannot really do better than remind you of what I said in my speech on the second reading. Let me say it again: nobody should make hard and fast predictions about what may be decided by the High Court, and I do not intend to do so. That is a mistake that has been made by other attorneys-general in the past and it is not a mistake I intend to make myself. But what I can say is that the government has been informed by the best legal advice we can get, including from the Solicitor-General, Mr Gleeson SC; the Australian Government Solicitor; and constitutional law specialists within the Attorney-General's Department in order to ensure that the legislation is as strong as we can make it from a constitutional point of view.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

Is there any reason why you have not beefed up treason and sedition laws? Don't you think that would be a much better deterrent—those laws are already in place—than making up new laws?

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

The crime of treason and what used to be defined as the crime of sedition—it is slightly differently described now in the Commonwealth Criminal Code—do not carry with them, at least in the case of a dual citizen who may commit those crimes, automatic loss of citizenship. That is not what those laws provide for. This bill is not about creating new offences; it is about creating new consequences for certain already defined offences: that is, in those defined circumstances, in the case of a dual citizen, who is therefore not somebody protected by the statelessness convention, the loss of Australian citizenship.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

I am wondering whether you have any respect for Greg Craven's argument, which he wrote on 4 June this year:

By conferring a profoundly judicial power on a minister, it mocks the separation of powers. It would be swatted down like a bug by the high court.

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

I have read Professor Craven's article. I have read a lot of commentary on this bill by a number of constitutional lawyers, some of whom have opined that it would not survive a constitutional challenge and others of whom have expressed the view that it would. But the point I would make to you is that the article that you quote was published on 30 June. Since 30 June this bill has undergone very considerable change and, I might say, very significant narrowing in order to address the very point that Professor Craven made about an earlier iteration of the bill—that is, in order to ensure that it does not effect, either de jure or de facto, a vesting of judicial power in a minister. That is the whole point of these amendments, because, if it did effect a vesting of judicial power in a minister, that would be what lawyers call a chapter 3 problem—a problem of the kind explained by the High Court in the 1950s in the boilermakers case and lots of subsequent authority. So, the whole architecture of this bill is designed by using the principle of renunciation by conduct rather than ministerial determination in the event that section 33AA or 35 were to be involved. The whole point of the architecture of the bill is to avoid that very problem.

Jacqui Lambie (Tasmania, Independent) Share this | Link to this | Hansard source

If the terrorist does not have dual citizenship and you will not be able to take that dual citizenship off them, exactly what laws are you going to use against that terrorist? Are we going back to sedition and treason laws? What are we floating around here?

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

Two points. First of all, you are right: the bill only applies to dual citizens. The reason for that is that Australia has since, I think, about 1962 been a party to the UN convention on statelessness, which basically says that no Australian parliament shall pass a law with the effect of rendering a person stateless. We adhere to the provisions of that convention. We respect that convention and, therefore, because that is a very considerable limitation, as you rightly say, on the way in which a loss-of-citizenship law can work, we have specifically limited this to dual citizens.

In the case of a person who has Australian citizenship only and therefore to whom these provisions could not apply, because of the statelessness convention, we have the armoury of the criminal law, particularly those provisions of the Commonwealth Criminal Code which create specific terrorism offences and which also create certain unusual mechanisms such as preventative detention orders and control orders, which are other mechanisms to keep our community safe. We are adopting a belts-and-braces approach: wherever we can find a way of keeping the community safer consistently with the law, we want to enact it.

Progress reported.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

It being 9.30 pm, I propose the question that the Senate do now adjourn.