Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

[by video link] Here we go again, because the Morrison government didn't do its job again all of us here are now expected to pick up the slack. I rise to speak on the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021. There are three particular measures in this bill that are about to sunset. The 'do nothing Morrison government' did not do its job. That's why we're here, right? The Prime Minister forgot that the terrorism legislation was about to expire. That's why we're all here debating why we should let the kid that came with his homework late, didn't do the reading, didn't do the research—we are here to now discuss the problems with it that Labor are supporting to just push through. It's unbelievable. The 'do nothing Morrison government' obviously hasn't done their job, and Labor can't be bothered either, so let's just rush it through.

You've only just realised that these provisions are about to expire. The Prime Minister just realised they are about to expire. Now you are scrambling to do something about it. What kind of leadership is that? Who is running the country? But that's how you operate: do nothing until someone makes it an issue. The Greens are the only ones that are going to pick it up and actually talk to the human rights body, and those that are interested and understand the problems with this bill. I'm not sure whether Labor have picked up the phone or even the government. But obviously you haven't done your homework, you haven't done your job and you're too lazy to even have a conversation about it and allow further scrutiny.

Anyway, the three provisions in this bill that are about to expire, and I do mean that they're about to expire in a matter of days, are: (1) the declared areas provisions in section 119 of the Criminal Code (2) the control order regime in division 104 of the Criminal Code and (3) the preventative detention orders regime in division 105, for a further 15 months. There are also amendments to the Intelligence Services Act as well as the Crimes Act to extend the operation of the stop, search and seizure powers in division 3A part IAA. I will deal with these in that order.

Section 119.2 of the Criminal Code makes it an offence to enter or remain in an area declared by the Minister for Foreign Affairs, who is also the 'Prime Minister for Women', apparently. I note that a person is still allowed to travel to those declared areas for legitimate purposes, like providing aid or performing official duties, either for governments of this country or for international organisations like the International Committee of the Red Cross. Journalists are also able to travel to declared areas, if they are acting in a professional capacity, as are people visiting or reuniting with family. These provisions were part of a number of legislative measures that were introduced in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014. Labor, you should listen, because you haven't done your homework. Understand what the people are saying and what the experts are saying; that's who we're listening to.

The explanatory memorandum of that act did not really articulate why the length of the sunset provisions was prescribed. In fact, the former Independent National Security Legislation Monitor Bret Walker SC is on the record on this matter. Listen, Labor:

The former INSLM stated that he found sunset provisions problematic and that a period of ten years appeared arbitrary, stating that sunset clauses should either be 'really very short' or not used at all—

Labor, wake up!—

in which case there would be 'trust in future parliaments to amend, repeal, leave in force laws as the future parliaments see fit in light of circumstances that cannot possibly be predicted at the moment'.

Are you awake, Labor?

There are some key concerns with the declared areas provisions. I expect this from the Libs—but, seriously! The Australian Human Rights Commission—I'll send you their number if you like—has made clear that the expectations should be reframed to operate more broadly, instead of being a shopping list of purposes, as appears now. Human Rights Watch—I'll give you their number, too, Labor—also expressed concern that the proposed list of exemptions fails to recognise that, during times of war and conflict, there are a number of legitimate reasons for people to travel to areas involved in armed conflict. These include: doing business; selling property; working for a civil society organisation; running or voting in an election; and for religious reasons. Where are you, Labor? Get out from under that desk. Like pilgrimages—I struggle with that word. I haven't been totally decolonised. The English language is very violent sometimes. For example, Labor, during the Sri Lankan conflict, a number of Australian Tamils returned to sell their possessions but then assisted civil society groups, advocating against the war, or were forcibly held by the Tamil Tigers. None of these acts are covered by the exemptions at the moment, and they should be, seriously. The offence of remaining in a declared area is particularly problematic because, when an area becomes a declared area, it's an Australian citizen or resident or a holder of an Australian visa who has to leave the area. An area could be an entire country.

So, instead of fixing this flawed legislation and rolling your sleeves up and doing what's right for the people, Labor—I expected it from the Libs, but I didn't expect it from you fellas—are seeking to extend the sunset clause until well past the election. They want to completely disregard the processes and procedures of making laws, including committee review and proper debate and scrutiny in the Senate and the other place. That alone should cause everyone concern. It's not clear that the government has fixed the issue in the legislation. Instead, it's trying to kick it down the road for, hopefully, a new government to deal with. But, jeez, you fellas have got to do some work and do the right thing by the people.

But I say no. The control order regime in division 104 of the Criminal Code Act allows a court to impose obligations, prohibitions and restriction on a person. Restrictions may be imposed on the basis of a lower standard of proof, on the 'balance of probabilities', instead of 'beyond reasonable doubt', and even on the basis of secret evidence. The police are not obligated to provide any information that would prejudice national security. These control orders can be put on children as young as 14. Labor, I'm telling everyone that you are supporting this—children as young as 14! You're not our mates.

Only 20 control orders have been issued to date. The Morrison government is considering changes to the control order and preventative detention framework to make it even worse than it is now, with the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020. Human Rights Watch—got the number here—has expressed concern that 'control orders are imposed on individuals in a cumulative manner so as to be tantamount to indefinite detention'. Australia's Independent National Security Legislation Monitor previously recommended the repeal of control order provisions. If only the Morrison government, and their buddies on the other side, were paying attention!

The preventative detention orders regime under division 105 of the Criminal Code Act allows a person to be taken into custody for up to two days to prevent a terrorist attack or for preserving evidence. The issuing authority for an initial order is a senior AFP member. Since the orders were legislated, they have never been used—they have never been used, in the whole time—yet you want to extend them? Since the orders were legislated, they haven't been used. I need people to understand that. Labor and the Libs want to extend something that's never been used before. They don't want to take it back to the people; they just want to rush it through.

We had terrorists, literally Neo-Nazis, burning crosses on my country, Gariwerd—Gunditjmara, Warrnambool. The colonisers call it Halls Gap. It's called Gariwerd. Those terrorists and Neo-Nazis danced on my ancestors and burnt a cross. What happened to those fellas? Nothing. If these orders are so good at preventing terrorism, they would have been working, but they haven't been.

Stop, search and seizure powers in division 3A of part IAA of the Crimes Act allow a police officer to stop, question and search people as well as seize items without a warrant, as long as the police officer suspects that someone is committing or about to commit a terrorist act. That says a lot about human rights. These powers have not been used at all since they were legislated, but you want to extend them anyway. The Greens don't support this. The Greens are for the people, for grassroots democracy. I've given you 15 months to come back and fix some of these issues, particularly in regard to declared areas provisions. I need the Senate to support this so that our people can have a say. All Australians need to have a say, and Liberal and Labor are stopping that from happening. I can keep going if you want.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

The senator's time has expired.

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

At the request of Senator Watt, I move the second reading amendment on sheet 1380:

At the end of the motion, add ", but the Senate:

(a) notes:

(i) in February 2021, the Parliamentary Joint Committee on Intelligence and Security tabled a report in the Senate following its review of the "declared areas" provisions in the Criminal Code Act 1995;

(ii) the Committee made four unanimous and bipartisan recommendations, including three recommendations to amend the Intelligence Services Act 2001 and the Criminal Code Act 1995; and

(iii) this bill would implement Recommendations 1 and 2 of the Committee's report, but the Government has refused to implement Recommendation 4, which is to amend the Criminal Code Act 1995 "to allow Australian citizens to request an exemption from the Minister for Foreign Affairs to travel to a declared area for reasons not listed in section 119.2, but which are not otherwise illegitimate under Australian Law"; and

(b) calls on the Government to implement Recommendation 4 of the Committee's unanimous and bipartisan report".

David Van (Victoria, Liberal Party) Share this | Link to this | Hansard source

Fundamentally, the role of the Australian government is to ensure that all Australians are safe, secure and free from the threat of violence so that they are able to pursue their individual interests. It is the government's responsibility to ensure that our sovereign rights remain untainted by malicious actors and groups. Australia's current national terrorism threat level is listed as probable. This means that there is credible intelligence, assessed by our security agency, that indicates that individuals or groups have the intent and/or capability to conduct a terrorist attack in Australia. Unfortunately, the harsh reality is that we live in a world where there are those who wish to take what we have and destroy what we have built.

We have world-class intelligence, security and law enforcement agencies who work day in and day out to protect us from these threats. These agencies are equipped with some of the brightest and most dedicated minds in Australia, using some of the most advanced technologies to fight these threats. To ensure Australians are safe, we must ensure that these agencies have correct legislative frameworks to ensure they can do their job effectively and help us ensure that all Australians are safe.

This is why the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021 is vital and must be passed without delay. To delay passing of this bill could threaten the lives of every Australian. This bill provides for the continuation of key counterterrorism powers that have helped since its enactment to protect the lives of Australians and our communities. In response to the Parliamentary Joint Committee on Intelligence and Security and its 2021 review of declared area provisions, the bill will extend the sunsetting of declared area provisions in the Criminal Code Act 1995 to 7 September 2024 and amend the Intelligence Services Act 2001 to provide for the Parliamentary Joint Committee on Intelligence and Security to review these provisions by 7 January 2024, ahead of their new sunsetting date. The declared areas offence forms an integral part of the Australian government's efforts to stop the flow of foreign fighters and also mitigates the risk that returning foreign fighters pose to Australians. The bill will also extend the 7 September 2021 sunsetting of AFP counterterrorism powers until 7 December 2022 and emergency stop, search and seizure powers in the Crimes Act 1914.

Control orders are an important tool in preventing a terrorist attack or foreign incursion and for managing the risk posed by persons who continue to present a risk to the community. It is important to note that control orders must be issued by a court. The Australian Federal Police can apply to the court to issue a control order against someone and must also have the consent of the Minister for Home Affairs.

Preventative detention orders are also an important tool in preventing an imminent terrorist act and preserving vital evidence in the aftermath of a terrorist act. Emergency stop, search and seizure powers ensure police are able to respond consistently and effectively to a terrorist incident or threat. This bill seeks to extend those powers for a further 15 months. These powers allow for police to request information, to conduct a search and to seize property where they suspect a person might have committed or be about to commit a terrorist act. I cannot stress enough that, if these powers were to sunset, particularly those with respect to control orders, all control orders would cease to be in effect, which would significantly inhibit agencies' ability to manage individuals who pose a risk of terrorism and threaten our way of life. If anyone in this house is okay with that happening, then they're essentially saying that they are okay with Australians' lives being placed at risk. I commend this bill.

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I rise to sum up the debate on the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021. Protecting the Australian community from the evolving threat of terrorism is and will continue to be among the Morrison government's highest priorities. This bill will provide for the continuation of key counterterrorism powers to keep Australians safe. The declared areas offence is an important part of the Morrison government's efforts to stop the flow of foreign fighters to overseas conflict zones and to mitigate the risk that returning foreign fighters pose to Australians. Control orders and preventative detention orders are important tools used to prevent terrorist acts and manage the risk posed by persons who continue to present a risk to the community.

The emergency stop, search and seizure powers ensure that police are able to respond consistently and effectively to a terrorist incident or threat. The extension of the reporting date for the Independent National Security Legislation Monitor to review division 105A of the Criminal Code will enable the monitor to engage in interstate consultations which were disrupted, as I think we all know, by COVID-19 travel restrictions and to provide a greater body of evidence to draw upon in his review of the practical operation of the provisions.

The Parliamentary Joint Committee on Intelligence and Security is currently conducting a statutory review of control orders, preventative detention orders and the stop, search and seizure powers. This bill ensures that these powers do not cease while this important review is going on. The committee's separate review of the declared areas provisions was tabled on 25 February 2021. This bill implements key recommendations made by the committee in this review, including that the Criminal Code Act 1995 be amended to provide that the PJCIS may review the operation, effectiveness and proportionality of the declared areas provisions by 7 January 2024, ahead of the new sunsetting date of 7 September 2024.

I note that the committee also recommended—and I note that the opposition has moved a second reading amendment in this regard—that the Criminal Code Act 1995 be amended to allow Australian citizens to request an exemption from the Minister for Foreign Affairs to travel to a declared area for reasons not listed in section 119(2) of the act but which are not otherwise illegitimate under Australian law. The government does not support this proposal. It is unnecessary, because the legislation already provides for a range of carefully defined exemptions, including for bona fide visits to family members, journalism, a range of official duties and the provision of humanitarian aid. There is also an ability to prescribe additional exemptions through regulations.

The government is not aware of any cases where a person has sought to travel to a declared area for a reason otherwise legitimate under Australian law and was unable to do so to the current scope of legitimate purpose exemptions. The proposal would create a scheme which would undermine the intent of the legislation, which is to keep Australians safe and prevent travel to extremely dangerous conflict zones where terrorist groups are active. The government has strong concerns that if such a scheme were put in place it could not be effectively implemented and monitored, and it would directly contradict the government's approach to travel advice. The government would have limited information to assess an exemption application, including to consider whether the intended travel was for a genuine reason. Moreover, the time and resources required to obtain information to assess an application would be significant and would divert security and intelligence resources from national security priorities. In putting forward this proposal, the committee recommended that the Minister for Foreign Affairs' decision to grant or not to grant an exemption be exempted from merits review. However, decisions made by the foreign minister, even if exempt from merits review, would still be reviewable by the courts.

There would also be significant practical difficulties in monitoring the movements of a person authorised to travel to a declared area, and it would be difficult to ascertain whether a person had complied with any conditions to which their travel authorisation was subject. Declared areas are, by their nature, dangerous conflict zones and persons who travel there do so at significant risk to their personal safety. The government sees no rationale for creating a scheme of this kind, which runs counter to the policy intent of the provisions and gives rise to significant practical challenges. Given we are not aware of any real-world instances where a person has been prevented from travelling for legitimate reasons, it is safe to conclude that such a scheme would result in little benefit for the cost required to set up and implement it.

Again, in summing up the debate, I say the bill reflects the government's ongoing commitment to protecting the Australian community from the threat of terrorism and ensuring our law enforcement agencies continue to be able to manage the evolving national security threat environment. With those words, I commend the bill to the Senate.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

The question is that the motion as moved by Senator Urquhart for Senator Watt, the second reading amendment on sheet 1380, be agreed to.