Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I rise to speak on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. This bill responds to recommendations made in 2017 by the former Independent National Security Legislation Monitor, Dr James Renwick CSC, SC, and proposes to amend the Criminal Code Act 1995 to introduce an extended supervision order scheme. This would complement the current suite of powers available to the Australian Federal Police to counter the threat of terrorism.

Currently, when authorities believe that a convicted terrorist offender would continue to pose a risk to the community at the expiry of the offender's custodial sentence, the Commonwealth may apply to the supreme court of a state or territory for an order to continue that offender's detention for up to three years at a time. In order to make a continuing detention order, the court must be satisfied that no less restrictive measure would mitigate the risk to the community of the offender's release. In line with the recommendations by the Independent National Security Legislation Monitor, this bill proposes an alternative to continuing detention orders—that is, an extended supervision order. This would be a less restrictive option than a continuing detention order. Under an extended supervision order, a convicted terrorist would be released into the community at the end of their sentence but would be required to comply with prohibitions, restrictions or obligations that are, in the court's view, reasonably necessary and appropriate and adapted to protecting the community.

These powers do introduce a less restrictive option than what is currently in existence, but that is not to diminish the significance of the new powers. As this bill introduces extended supervision orders and such an order could significantly restrict the liberty of an individual who has completed their sentence, this bill was very carefully considered by the opposition.

The bill also seeks to address what the government has described as the current lack of interoperability between continuing detention orders and control orders in the Criminal Code due to the different courts from which these orders may be sought. Currently, only federal courts can make control orders and only state or territory supreme courts can make continuing detention orders. That means a supreme court cannot make a control order or any other type of post-sentencing order if, in the view of the court, less restrictive measures would be effective in preventing the unacceptable risk. If this bill becomes law, a state or territory supreme court would be able to make an extended supervision order as an alternative to a continuing detention order.

This bill was referred to the Parliamentary Joint Committee on Intelligence and Security for review. The committee received valuable and considered submissions from experts on law and human rights, as well as from government departments and agencies. Amongst the issues discussed in submissions and hearings were the human rights considerations of extending restrictions to a person's civil liberties after they have served their sentence, the methodology for assessing risk of future offending, the standard of proof required for an extended supervision order and the safeguards and oversight accompanying the powers proposed by the bill.

The committee made 11 unanimous and bipartisan recommendations. These included requiring that the issuing authority must consider whether a person is already subject to other post-sentence supervision orders, and the cumulative impact of multiple post-sentence orders, including the risk of oppression; an independent review to be provided to the parliament of methodologies used to determine a person's risk of violent extremism and the effectiveness of mandating participation in deradicalisation programs; and provisions for the Commonwealth to bear reasonable costs associated with the offender's legal representation. The committee also recommended stipulations that conditions imposed under an extended supervision order cannot in effect amount to detention, and that these new powers be subject to a statutory review by the committee after the Independent National Security Legislation Monitor conducts his review.

These are important and necessary recommendations that further demonstrate how seriously the Parliamentary Joint Committee on Intelligence and Security takes its role in calibrating the important issues of national security, human rights and procedural fairness, all in a bipartisan way in the national interest. I am pleased, then, both as a member of the intelligence and security committee and as a member of this chamber, to note that the government has advised that they will be accepting the majority of the committee's recommendations. As such, Labor will support this bill, strengthened and improved as it is by the amendments made.

Labor takes the issues of national security very seriously. Australia's national terrorism threat level was raised to 'probable' in 2014 and has remained there since. 'Probable' means there is a credible threat that people have the capability and intent to conduct terrorist attacks in Australia. In the time since 2014, the threat level has remained constant but the threat itself has transformed, including a now increased threat of ideologically-motivated violent extremism, fuelled largely by a rise in right-wing extremism and, sadly, as evidenced by the mass-casualty terrorist attack committed by an Australian right-wing terrorist in Christchurch. ASIO, the AFP and state law enforcement agencies have all warned that extremists are exploiting the fear and insecurity created by the COVID-19 pandemic, vilifying culturally-and-linguistically-diverse communities, spreading disinformation as a means of recruitment to sow fear and incite violence. The Attorney-General's Department and the Department of Home Affairs told the committee that, of the 86 individuals convicted of Commonwealth terrorism offences, 13 are due to be released over the next few years. With this in mind, it is important that our security and law enforcement agencies have a range of options to monitor the threat posed by terrorism, particularly by convicted terrorists who continue to demonstrate an intent to harm Australians.

These amendments, the amendments recommended by the committee, are important, which is why it is surprising that it took the government three years to introduce this legislation, as it had been recommended by the Independent National Security Legislation Monitor back in 2017. It is also surprising that the Minister for Home Affairs, Ms Karen Andrews, told the Australian Strategic Policy Institute in September that the need for this legislation was greater than ever, when the Morrison-Joyce government only handed its response to the committee's recommendations in late October. It is surprising to learn that the former Attorney-General, Christian Porter, had told the Australian newspaper in 2018 that 'the government intends to introduce legislation to create an extended supervision order scheme as soon as possible'. Perhaps we should not be surprised that 'as soon as possible' for the Morrison-Joyce government is actually in three years time. It is perhaps just another example of a headline and an announcement without the detail, and of acting too little, too late.

However, the bill is now at the parliament. It has now gone through a review by the Parliamentary Joint Committee on Intelligence and Security. It has been considered carefully by the committee, and as a member of the community, I acknowledge and thank all committee members for their diligence in conducting the review of this legislation. I acknowledge that the chair, Senator James Paterson, did considerable work on this legislation, particularly given that he only took on the leadership of the committee earlier this year and that a fair amount of the work done on the committee was prior to his taking on responsibility as chair.

We have arrived at a bipartisan report done in the national interest and focusing on what is important for Australia's national security. Having worked collaboratively and with diligence to review and improve this bill, Labor supports the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021.

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

I rise to speak on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. We will not be supporting this bill, because it is highly flawed. I say to the government: come back to this place when you want to do the right thing, and then we can negotiate.

This parliament has passed well over 70 counterterrorism laws in the last two decades, and often they have simply never been used. This bill proposes to establish a new type of post-sentence order in the Criminal Code to manage the future risk presented by a person who has finished their imprisonment for a terrorism or security offence. This extended supervision order would enable someone to be released into the community subject to conditions on their activities and movements after they have completed their sentence. However, the Criminal Code already contains provisions that permit a state or territory supreme court to make what's called a 'continuing detention order' in relation to the same category of offender. These continuing detention orders require a person convicted of a serious terrorism offence to remain in detention for up to three years after they have completed their sentence.

I note that the Human Rights Commission has called for the introduction of an extended supervision order regime because it provides a less-restrictive way of managing the risk of serious crime in the community. The Human Rights Commission argues that where a risk is proven to exist and a court considers that the community can be protected through conditions imposed on a person after they're released then this should be preferred instead of continued detention because it's a more proportionate response. It is also consistent with the general principle of the criminal law that an offender should be released from custody once they have done their sentence. However, the continuing detention order regime that we have now will not be repealed. It will continue to exist alongside provisions in this bill. Also, what's worse is that this bill is not at all what the third Independent National Security Legislation Monitor suggested as a better way forward.

As I mentioned earlier, this parliament has passed over 70 counterterrorism laws in the last 20 years. Many of these laws create really broad, extensive and often overlapping powers. This means that it is becoming more and more probable that the human rights of people are being impacted due to the snowballing nature of all these laws. I urge my fellow senators not to consider this law on its own, but in the broader ecosystem in which it lives. If this bill is passed the new extended supervision order regime would add to this country's already extensive and often unjustified counterterrorism powers. Once given to police and spy agencies these powers do not come back.

This bill cannot be seen in isolation. It must be seen in the context of the many, many powers that this parliament has already given the police and intelligence agencies of this country. At the very least, the extended supervision order regime should replace the continuing detention order regime. These two extensive powers should not sit side by side. I foreshadow a second reading amendment to reflect this and I ask the support of my fellow senators. There is no need for these two regimes to exist at the same time. If this bill is passed as it is and control orders are not repealed then offenders in New South Wales could be subject to up to four overlapping post-sentence order regimes.

I say to the government: this bill is not it. Come back to this place, put forward something that at the very least abolishes the continuing detention order regime. Act on the advice from the Independent National Security Legislation Monitor and then we can negotiate. I say to the government: go do your job, come back to this place when you've got something that is worthy of the Senate to consider. The Australian Greens cannot agree to this bill in its current form. I move:

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

(a) this bill is not supported by key stakeholders in the logistics, technology, and education sectors, among others;

(b) in the review of this bill undertaken by the Parliamentary Joint Committee on Intelligence and Security, numerous stakeholders reported insufficient consultation by the Government with their respective sector or industry and many reported that this bill would result in the imposition of an excessive regulatory burden on their business, including the potential duplication of regulatory systems;

(c) this bill imposes very serious obligations on entities deemed to be providing critical infrastructure, including:

(i) the potential for the takeover of business or operations by Government security agencies, and

(ii) the ability for the Minister to authorise the Secretary of the Department of Home Affairs to direct an entity to gather information, undertake an action (or direct that an action not be undertaken), or authorise the Australian Signals Directorate to intervene, when a cyber security incident has occurred, is occurring, or is likely to occur; and

(d) this bill would give the Minister considerable powers under the guise of protecting the security of critical infrastructure".

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

The national terrorism threat level was raised to 'probable' in September 2014 and since then there have been nine attacks and 21 major counterterrorism disruption operations in relation to potential attack planning in Australia. Since 2001, 92 people have been convicted of terrorism related offences in Australia, including seven who were juveniles when charged. More than 50 are currently serving custodial sentences and a number of others remain before the courts for terrorism related offences. One need only look back to the horror of the Lindt Cafe attack or the Bourke Street attack in my home state of Victoria to know that these threats are real and present within our society. This is something that the Morrison government takes very, very seriously. It is resolutely committed to pulling every lever of government to protect Australians and prevent the threat of terrorism from occurring on our shores.

It is vital to remember that the security of Australians underpins the recovery of Australia from COVID-19. If our citizens are not safe, they cannot prosper. While COVID-19 has put a halt to many of the norms of our daily lives, the threats against Australians and our communities continue to propagate. For those intent on violence, more time at home spent online meant more time in the echo chamber of the internet on the pathway to radicalisation. It was noted by the director-general of the Australian Security Intelligence Organisation, Mr Mike Burgess:

COVID has reinforced extremist beliefs and narratives about societal collapse and a race war. As a consequence, we are seeing extremists seeking to acquire weapons for self-defence, as well as stockpiling ammunition and provisions.

An ideologically motivated terrorist attack in Australia remains plausible, most likely by a lone actor or small cell rather than a recognised group, and using a knife or a vehicle rather than sophisticated weapons.

As we learnt from the horrific 2019 London Bridge attack and the 2020 Streatham attack in the UK, convicted terrorists can pose a very real and ongoing threat to public safety when they're released back into the community after serving their full jail sentence. In the case of the February 2020 attack in London, Sudesh Amman injured two people before he was shot dead by police officers who had had him under close surveillance. The attacker had been released from prison just 10 days before he carried out the attack. Had this individual not been under close surveillance, it is most likely that many more would have been injured or killed.

Terrorist attacks perpetrated by individuals who have previously been incarcerated on terrorism charges reinforces the complexity of the challenges that prisons around the world face in relation to terrorist offenders. Despite the efforts of correctional officers to deradicalise prisoners, recidivism still occurs. At a fundamental level, recidivism constitutes the continuation of, or a return to, a previous pattern of criminal behaviour. While our correctional officers put a great deal of effort into reducing the rate of recidivism, unfortunately many individuals walk out of prison more radicalised than before they went in. This is why we must have the right rules in place to ensure that if and when recidivism occurs, our fine law enforcement agencies are prepared and can prevent it before our citizens are harmed.

Peter Severin, the former commissioner of New South Wales prisons, spoke earlier this year to the fact that some of Australia's most notorious terrorists have not disavowed their extremist beliefs in prison and they remain dangerous as their re-entry into the community looms. Six offenders who were convicted following Operation Pandanus in 2005, which dismantled a terrorist network operating between Sydney and Melbourne, remain in custody in New South Wales and will become eligible for release between now and 2026. If and when these individuals are released, we must ensure that the right framework is in place so that our law enforcement agencies are able to adequately ensure that, when back in the community, these individuals pose no threat to the greater public and that, if they do pose a threat, law enforcement agencies can quickly act upon it.

In 2016, the Australian government introduced the high risk terrorist offender regime into the Commonwealth Criminal Code. This provides for the continuing detention of high risk terrorist offenders who pose an unacceptable risk of committing serious terrorist offences at the end of their custodial sentence. This was a significant step towards keeping our community safe from those that wish to threaten the lives of innocent Australians. The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021 government amendment builds upon the work the coalition government has done so far to make our communities safer. The bill before us will ensure that the risk posed to the community from high-risk terrorist offenders is mitigated, following their release from a custodial sentence. It will do this by creating an extended supervision order, an ESO, for high-risk terrorist offenders who are released into the community. This will ensure they are subject to supervision and monitoring conditions which are proportionate to the level of risk they pose to community safety. The new scheme will ensure public safety is the No. 1 priority for our courts when making decisions about the release of high-risk offenders. Under an extended supervision order, the court may impose any conditions that it is satisfied are reasonably necessary and reasonably appropriate for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence.

The extended supervision order scheme will complement the existing continuing detention order scheme in the Criminal Code Act 1995 and will broaden the range of tools available to protect the community from terrorist offenders. Currently, there are only two options for managing such offenders. The first is a continuing detention order, under which a court may order that the person remain detained, where they pose an unacceptable risk to the community and where that risk cannot be addressed through less restrictive means. The second option is a control order, which allows conditions to be placed on a person in the community. These orders are not tailored for the post-sentence context as they only allow for a defined set of conditions and are issued by different courts to continuing detention orders. In creating extended supervision orders, the bill will broaden the range of measures available to address the risk of terrorism to the Australian community. The government has put in place robust legal frameworks to provide agencies with appropriate powers, including control orders, preventive detention orders and emergency 'stop, search and seize' powers. The Parliamentary Joint Committee on Intelligence and Security has recently reported, following its consideration of these powers, and recommended that they be continued. The Australian community rightly expect that their government will do everything within its power to prevent individuals who have a proven track record of causing harm, or who have had intentions to cause harm, from further threatening the community when they get out of jail. This improved scheme delivers on our commitment to keep Australians safe.

The bill also amends other legislation to support the effective implementation of the extended supervision order scheme. To ensure the compliance of an offender on an extended supervision order, the bill amends the Crimes Act 1914 to extend the existing regime of monitoring warrants for control orders to also include supervision orders and interim supervision orders. These amendments will allow law enforcement to monitor the compliance of an offender, either with their consent or with a warrant to search their premises or person. Amendments to the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979 will allow law enforcement to obtain warrants for electronic surveillance to monitor compliance with supervision orders and inform the minister's decision as to whether to apply for a post-sentence order. The bill also amends the international production order regime, which was introduced through the Telecommunications Legislation Amendment (International Production Orders) Bill 2020, allowing for improved cross-border access to communications data for law enforcement agencies. These amendments will ensure that agencies are able to obtain international production orders for the purpose of monitoring compliance with extended supervision orders.

The bill amends the National Security Information (Criminal and Civil Proceedings) Act 2004 to extend existing provisions which apply to control order proceedings, to allow the court to consider sensitive information in extended supervision order proceedings without that information being disclosed to the offender or their legal representative. This will ensure that the process of applying for an extended supervision order does not reveal sensitive sources— which is of the utmost importance in a custodial environment. To ensure that the offender receives a fair hearing the bill extends the existing special advocate regime that is in place for controlled order proceedings. The bill expressly prohibits the court from considering court-only evidence in determining whether to make continuing detention orders, as is currently the case.

The government amendments also address recommendations by the PJCIS in relation to the bill. The government accepted 10 of the 11 PJCIS recommendations in full, in part or in principle. In the context of the recent New Zealand terror incident and the operational need for the ESO scheme to manage high-risk terrorist offenders it is essential that this bill be passed. The bill ensures that our law enforcement agencies have the powers they need to respond to the evolving threat of terrorism and reflects the government's continued commitment to keeping Australian communities safe and secure. This bill demonstrates the Morrison government's commitment to providing holistic protection against the threat of terrorist activity. This will ensure that our communities remain safe and will address any gaps in the current legislative framework that may allow malicious individuals to cause harm. I commend the bill to the Senate.

Jim Molan (NSW, Liberal Party) Share this | Link to this | Hansard source

Like other senators in this place, I rise to speak to the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. I listened to other senators who have addressed this bill. It always restores my faith when I hear reports from the Parliamentary Joint Committee on Intelligence and Security. As explained to us by Senator Keneally, bipartisan support came out of the process within that committee. I spent some time on that committee in my first iteration within the Senate. It's an excellent committee. The way it gets bipartisan support for various bills is excellent. I was very happy to hear that Labor does support the bill.

I listened to Senator Thorpe, and I thank Senator Thorpe for her contribution. I guess there has to be an objection from the Greens in relation to this, but I would say that a very solid argument can be made that we do need both continuing detention orders and extended supervision orders. They are two quite different functions and they give an extraordinary amount of flexibility to courts and other officials in how they handle terrorists who have been incarcerated but still hold extremist views. I think these powers are justified. It is very important that we look at these powers as a whole, as Senator Thorpe explained. When you do look at them in context, I think it is possible to see that both the CDO and ESO are of value and are needed.

Senator Van spoke to us and reminded us that terrorism is a significant problem. There have been nine attacks and 21 disruptions. That's still a significant problem. Since 2001 there have been 92 convicted terrorists—50 of which are still incarcerated. He reminded us that the Director-General of ASIO spoke very strongly and openly about the impact of COVID on the terrorist situation in this country—ideologically motivated terrorist groups are there and they became more active during the COVID period. He also gave us examples of released offenders conducting terrorist activities. So I think that this is very relevant to every aspect of our life.

The government is well and truly committed to ensuring the safety and security of all Australians. As we've seen and as we were reminded by Senator Van, the recent terrorist attacks in New Zealand, as well as the 2019 London Bridge attack and the 2020 Streatham attack in the UK, convicted terrorist offenders continue to pose a risk to the community at the end of their sentence. This bill enhances the safety and security of every Australian by creating what's been explained to us this evening, extended supervision orders, ESOs, to ensure that high-risk terrorist offenders can be appropriately managed in the community at the end of their custodial sentence.

Part 1 of schedule 1 of the bill creates an extended supervision order scheme, for high-risk terrorist offenders, in division 105A of the Criminal Code. A state or territory supreme court would be able to make an ESO in relation to a convicted high-risk terrorist if satisfied, on the balance of probabilities, that the offender poses an unacceptable risk of committing a serious terrorism offence if released into the community at the end of their sentence. Under an ESO the court may impose any conditions that it is satisfied are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from unacceptable risk. ESOs would provide a less restrictive option—and this is the key for the Greens—if the court is not satisfied that a continuing detention order is necessary.

It's important to realise that with the balances that exist in this bill the state or territory supreme court will be able to impose an ESO for up to three years at a time, if the court is satisfied, as I mentioned before, on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence. One of the real benefits of this bill is that the court can impose any condition it likes, on an offender, that it considers proportionate to the risk the offender poses.

Part 2 of schedule 1 amends the Crimes Act 1914, which relates to surveillance devices—and is referred to as the Surveillance Devices Act, SD Act—and the Telecommunications (Interception and Access) Act 1979 to extend the existing surveillance and monitoring powers that are available for control orders to apply to ESOs, including search warrants and warrants for various types of electronic surveillance. Law enforcement agencies will also be able to seek electronic surveillance warrants under the SD Act, to inform the AFP minister's decision whether to apply for an ESO or a CDO.

Part 2 of schedule 1 also amends the National Security Information (Criminal and Civil Proceedings) Act 2004 to extend the court-only evidence provisions and the special advocate scheme that applies in control orders proceedings to ESO proceedings. It also amends the Administrative Decisions (Judicial Review) Act 1977 to exempt decisions made by the AFP minister under division 105A of the Criminal Code from judicial review under that act and to the Australian Security Intelligence Organisation Act 1979 to confirm that a condition imposed by an ESO or an action relating to electronic monitoring is not a prescribed administrative action for the purpose of the definition of an adverse security assessment under the act.

The bill also provides agencies, therefore, with the necessary tools not just to apply ESOs but to monitor compliance with those orders and to protect sensitive, national security information within ESO proceedings. The Parliamentary Joint Committee on Intelligence and Security has considered the bill and made 11 recommendations. The government is accepting 10 of those in full, in part or in principle. There is a part 3 to the bill, which makes minor consequential amendments to the Crimes Act to reflect the creation of ESOs.

Schedule 2 of the bill contains amendments to provisions introduced by the Telecommunications Legislation Amendment (International Production Orders) Bill 2020, referred to as the IPO bill—international production orders. The IPO bill was passed by both houses on 24 June this year and received royal assent on 23 July. As the IPO bill was in parliament at the same time as the ESO bill, it was necessary to draft contingent amendments in this way. The IPO bill was introduced for a framework to facilitate Australia entering into cross-border access to data agreements with foreign countries for an effective and efficient pathway for Australian law enforcement agencies to obtain communications data and vice versa. The proposed Australia-United States CLOUD Act agreement is an example of this.

This bill will amend the IPO framework to enable law enforcement agencies to obtain an international production order for the purpose of monitoring compliance with an ESO. The use and disclosure framework will also be amended to facilitate the use of information collected under an international production order to be used when making an application for a CDO or an ESO.

This is a good bill. It's a bill which has function and which is relevant. Even in the context of everything else this government has produced to counter terrorism over many years, it's an adjunct to those things and I commend this bill to the Senate.

Jenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Labor supports the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. As others before me have pointed out, it responds to a recommendation that was made by the Independent National Security Legislation Monitor quite some time ago in 2017. That recommendation was to establish a federal extended supervision order regime.

The bill went before the Parliamentary Joint Committee on Intelligence and Security and, before turning to the content of the bill, I just want to make some brief comments about Labor's broad approach to national security and how that affects the work in that committee. Whether in government or in opposition, we consistently work to ensure that our security agencies have the powers and resources that they need to keep our community safe, and that our laws are adapted to meet changing security threats. That approach is consistent. We take the advice of national security agencies seriously and we understand the context of our decisions—most specifically that in acting to protect our nation we act to protect a nation that is founded on the rule of law and respecting individual liberty.

Our approach to national security needs to reflect and respond to these core values. To the extent that individual rights are burdened—and they are burdened from time to time—such burden must represent the least-intrusive manner to achieve a security objective and be proportionate to the actual threat. We scrutinise evidence carefully and we never politicise national security. Labor is committed to working through the evidence of agencies, stakeholders and experts in a deliberative manner, and our bipartisan approach means exactly this: we expect the PJCIS to interrogate the issues that are placed before it robustly, without seeking to obtain narrow electoral advantage. We seek to embed in our national security architecture robust oversight. Strong and effective oversight does not undermine our national security; in fact, it enhances it. Public trust and confidence in our security and intelligence agencies are best ensured through strong and rigorous oversight and scrutiny.

As with all bills, that's the approach we took to this one. As I indicated, this bill has taken its time in arriving. The INSLM made a recommendation for a scheme such as the one contained in this bill in 2017. It took the current government three years after that to even introduce legislation into the parliament. In October 2018 the former Attorney-General Mr Porter told the Australian newspaper:

The government intends to introduce legislation to create an ESO scheme as soon as possible.

And yet legislation was not introduced until nearly two years later in September 2020. Now, in the last sitting fortnight of 2021, this bill has been listed for debate.

If this bill becomes law, it will be possible for federal authorities to seek an extended supervision order as an alternative to a continuing detention order. Under a supervision order, an offender would be released into the community at the end of his or her sentence but would be required to comply with prohibitions, restrictions or obligations that are, in the court's view, reasonably necessary and appropriate and adapted to protecting the community.

One of the key reasons for the bill is to address what the government describes as 'the current lack of interoperability between continuing detention orders and control orders in the Criminal Code due to the different courts from which these orders may be sought'. It is a genuine problem, and the committee took evidence about this. Currently only federal courts can make control orders, but only state and territory supreme courts can make continuing detention orders. This means that a state or territory supreme court cannot make a control order a less intrusive response to a threat, or any other type of post-sentencing order, if, in the view of the court, less restrictive measures would be effective in preventing the unacceptable risk, and this is because the making of these orders is not available to that court. If this bill becomes law, a state or territory supreme court will be able to make an extended supervision order as a less intrusive alternative to a continuing detention order, but only—and this is key—if this represents a proportional response to the risk that is posed and a response that is adequate to protect the community.

When the intelligence and security committee looked at this bill, we made a range of unanimous and bipartisan recommendations to improve the bill, including the inclusion of additional factors that an issuing authority must consider prior to issuing an extended supervision order, such as whether the person is already the subject of another post-sentence supervision order under state or territory legislation. We recommended that a court may make an order requiring the Commonwealth to bear all or part of the reasonable costs and expenses of the offender's legal representation for an extended-supervision-order proceeding.

These are important powers that have the capacity to intrude on a person's liberty. It is appropriate that a person be represented when these matters are being considered. The committee recommended that the issuing authority be required to assess the necessity and proportionality of the combined effect of all of the proposed conditions of an extended supervision order, not just each individual condition in isolation; ensuring that conditions imposed under an extended supervision order cannot amount to effective detention, by providing that a supervision order cannot require an individual to remain at a specified premises for more than 12 hours in any 24-hour period; that authorities cannot impose new conditions under an interim supervision order unless the subject of the order consents; and ensuring that authorities can exercise discretion when it comes to minor or unintentional breaches of a supervision order—that is, that they have the discretion not to prosecute if it is clear that this was not something intentional done by the subject of the order.

The committee also recommended that the government commission an independent review of the range of risk assessment tools that are available to evaluate whether a person poses a risk of committing terrorist acts, and that there also be a statutory review of their new powers within 12 months after the Independent National Security Legislation Monitor completes his review, noting that the monitor is due to commence that review as soon as practicable after 7 December of this year.

This is a good example of the committee exercising its authority and its role to review legislation and to ensure that it is balanced and proportionate. As I said earlier, the power to establish a post-sentence arrangement is a most significant power, and the committee's amendments largely seek to establish additional checks and balances to ensure that this power is not abused. The government has largely accepted each of these recommendations, though, with some justification, it has argued that legislative amendments are unnecessary to achieve two of the committee's recommendations. The government has, however, rejected part of recommendation 7:

The Committee recommends that proposed clause 105A of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 be amended to require that interim supervisions orders

The government has rejected the first part of this recommendation on the basis that it would like to retain the ability to have new conditions imposed under an interim supervision order, provided that those new conditions are agreed to by the independent issuing authority. Recommendation 7 was a considered, bipartisan and unanimous recommendation of the committee. In our view, the government has not offered a compelling reason to reject part of that recommendation, and for that reason I wish to place on record that, in the event that Labor is successful at the next election, it is a recommendation that we would revisit in government.

As the shadow Attorney-General noted in his remarks in the other place, not all of the concerns that were raised by submitters to the committee's inquiry are addressed by the government's amendments, nor were all of those concerns addressed by the Intelligence and Security Committee's recommendations. For example, the Law Council was not persuaded that amendments to the bill put forward by the Attorney-General's Department and the Department of Home Affairs in August, which would allow a control order or extended supervision order to apply to a person in immigration detention, were necessary. In common with a number of submitters, Labor members of the Intelligence and Security Committee also expressed concern that, where the bill departs from recommendations made by the Independent National Security Legislation Monitor, those departures have not been adequately justified by the department.

I note that, if the bill becomes law, the Independent National Security Legislation Monitor will be required to undertake a review of the measures contained in the bill as soon as practicable after 7 December 2021. Just as importantly, the Intelligence and Security Committee will be able to commence its own inquiry within 12 months of the INSLM's report being completed. Those reviews will provide the monitor, the parliament and civil society groups an opportunity to evaluate the practical application of the measures contained in this bill, and to consider whether further improvements are necessary or desirable.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

I too rise to address the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021, and I also do so as a longstanding member of the PJCIS. I highlight for those who are listening to this debate the two recent examples in New Zealand and the UK. In both of these examples, what was seen was people who had been convicted of terrorist offences and who had been released because they reached the end of their sentence. Yet the authorities knew and were concerned that the radical ideology which had caused them to offend in the first place had not been renounced, and for that reason they imposed various conditions under their laws in New Zealand and the UK that enabled police to monitor, follow and watch what people were doing. I note that, in both of those incidents, the fact that those conditions were in place did not stop the offenders in the case of the New Zealand incident walking into a supermarket, going to a shelf with knives, grabbing a knife and stabbing a number of people before the police were able to intervene. Similar things happened in the UK.

The reality we face today is that there are a range of reasons terrorist offenders do it and there are a range of circumstances for each person. We see, through groups like ISIS or ISIL—depending on how you want to define them—and their affiliates around the world, that many of these people are quite sane, balanced in their world view, not necessarily from low-income families who have been deprived and not necessarily uneducated. We have people who trained in Australia as doctors and physicians who have gone to join such organisations. If people hold these ideologies deeply, they don't give them up on the basis of a custodial sentence. We have seen much evidence from around the world that many deradicalisation programs are marginally effective at best and, in many cases, appear to have no real impact. As we look at some offenders, such as Benbrika and others in prisons in Australia who've been ringleaders in the past, the potential remains very high for them to not only continue to hold those views but also to continue to lead and inspire others to commit, and for them to commit, atrocities into the future. So, whilst I take the point, raised by others in this debate and during the inquiry, that measures such as extended supervision orders are an infringement on civil liberties, I would contest: so are terrorist acts against our citizens, and we have a duty as a government to protect the people of Australia.

The origins of this bill in part go back to the INSLM's review into division 105 of the Criminal Code, and I go back to the statement that he issued when he launched that inquiry. At the time when the original bill in 2016, the Criminal Code Amendment (High Risk Terrorist Offenders) Act, was legislated, the then Attorney-General, Senator Brandis, said:

… there is no existing Australian regime for managing terrorist offenders who may continue to pose an unacceptable risk to the community following the expiry of their sentence. Law enforcement agencies can seek to rely on control orders to manage the risk of terrorist offenders upon their release from prison. However, there may be some circumstances where, even with controls placed upon them, the risk an offender presents to the community is simply too great for them to be released from prison. This is a significant public safety issue.

So the INSLM was looking to see whether there were other options that could be effective, as this is fairly extreme in a plural, liberal democracy where we believe in the rule of law and that once somebody has finished their sentence they should be free. So he recommended an alternative approach, which has resulted in this bill.

There are two parts to the bill. Part 1, schedule 1, creates an extended supervision order scheme, the ESO scheme, for high-risk terrorist offenders, in division 105A of the Criminal Code. A state or territory supreme court would be able to make an ESO in relation to a convicted high-risk terrorist offender if satisfied, on the balance of probabilities, that the offender poses an unacceptable risk of committing a serious terrorism offence if released into the community at the end of their sentence. I go back again to the examples in New Zealand and the UK where that is not a hypothetical; that has been lived experience in comparable nations in very recent days. Under an ESO, the court may impose any conditions that it is satisfied are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. ESOs would provide a less restrictive option if the court is not satisfied that a continuing detention order, or CDO, is necessary. So that's the direct outcome of the INSLM's review.

Part 2 amends the Crimes Act, the Surveillance Devices Act and the Telecommunications (Interception and Access) Act, the TIA Act, to extend the existing surveillance and monitoring powers which are available for control orders to apply to ESOs, including search warrants and warrants for various types of electronic surveillance, so law enforcement agencies would be able to seek electronic surveillance warrants under the SD Act and the TIA Act to inform the AFP in its decision as to whether to apply for an ESO or a CDO.

The committee ended up making a number of recommendations, having heard evidence from a range of people. The key one is recommendation 1:

… that proposed clause 105A of the Counter-Terrorism Legislation Amendment (High-Risk Terrorist Offenders) Bill 2020 be amended to provide that an issuing authority must have regard to:

This goes directly to the concerns that were raised by Senator Thorpe, by the Greens. The government accepted that recommendation and it has agreed to amend the bill in line with the recommendation.

The government notes in its response that the extended supervision order scheme, the ESO scheme, will operate independently of post-sentence or PSO schemes at state and territory level. Where an offender is eligible under a state or territory scheme and the ESO scheme, the Commonwealth would work in close collaboration with the relevant jurisdictional partners to consider appropriate options on a case-by-case basis. It is not the intention that an offender would be subject to concurrent Commonwealth and state or territory orders. That's an important clarification to make, given some of the concerns that have been raised here tonight.

Recommendation 2, though, is one that I'm very pleased to see. Having been on the committee for a number of years, I have raised this issue on several occasions. The Violent Extremism Risk Assessment 2—VERA-2—framework is the tool that is used to try to determine whether somebody poses an ongoing risk. This goes to the heart of the issue around the nature of the people who are wedded to an ideology that informs their actions. The basis for this tool comes from people trying to analyse other criminals and violent offenders, such as sex offenders, to determine whether or not the condition that has caused them to be susceptible to offending against children or other people in violent sexual acts remains. It's trying to assess whether there is an illness or a propensity in somebody, from a psychological or mental health perspective, whereas evidence has shown time and again that many terrorist offenders—in fact, I would argue the majority of terrorist offenders—are quite sane and are quite competent; they just believe and intend to act upon their beliefs of the ideology they follow.

So the tool that is used is, I would argue, not sufficient. I have long argued that one of the key points should be appropriate experts who can look at the ideology and look at what the ideology promotes—the actions of people who adhere to it—so they can make an assessment that, if the person still adheres to that ideology and has in the past demonstrated that they are prepared to act upon those principles, instructions or encouragements from that ideology, then they will be prepared to apply either an ESO or, again, in light of the New Zealand and the UK example, a continuing detention order to somebody who has demonstrated that level of propensity for violence: the means and the motivation, if you like, to cause harm to Australia's population.

So I'm pleased to see that VERA-2 will be reviewed—and looking at other tools. But I would argue that a more comprehensive framework is required, with alternative sources of evidence for the judiciary to consider in terms of whether somebody still poses a risk to the Australian community. I'm pleased to see that the Department of Home Affairs will commission an independent review, given that the government accepted that recommendation. I certainly trust that the PJCIS will have the opportunity to examine that review and to engage with the independent reviewer when it is complete, to understand what they have found and where the recommendations go to, because it's a key element in deciding whether somebody should be subject to anything at all post their sentence but, if so, whether an ESO is adequate or whether a CDO is what is required. If we are going to operate in a rules based, evidence based, fair and transparent society, the ways we gather that information for our judicial officers have to be repeatable and fair to all concerned and, above all, effective. So I welcome and look forward to the outcome of that review.

There are a number of other amendments, the majority of which the government has accepted in full or in part. Senator McAllister has gone to recommendation 7, so I won't re-cover that part. But I think the key thing that comes out of this is that the government has been diligent in working in a bipartisan manner to make sure that the Australian population are safe, to understand the risks—whether through foreign interference and espionage or through terrorism—and put in place measures that give our law enforcement agencies the powers they need to discover, to protect and to apprehend and give our judicial system the powers they need to suitably punish or confine in order to protect society. One of the strengths of this committee—and, in an environment where so many of the Australian public are somewhat cynical of the institution of the parliament, I think this is a shining example from this parliament, this Senate and this committee—which is a joint committee with the House, is that we work constructively to put in place checks and balances, so that we achieve a workable balance that enables our authorities to be effective but still maintains the essential essence of Australia as an open, free, plural society. I commend this bill to the House.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. I welcome the opportunity to do so as chair of the Parliamentary Joint Committee on Intelligence and Security, which finalised the report into the proposed bill in September. I'm pleased to be following two of my fellow committee members, our new deputy chair, Senator McAllister and one of our longest-serving members, Senator Fawcett, who have made typically thoughtful contributions to this debate, as they do to the committee. At the outset I want to thank all members of the committee; in particular, our former deputy chair Mr Byrne and the shadow Attorney-General, Mr Dreyfus, who I worked with particularly closely in a bipartisan manner to finalise this report and to reach our unanimous recommendations, along with the other Liberal members of the committee.

In 2014, Australia's national terrorism threat level was raised to where it, unfortunately, remains today, and that is 'probable'. That indicates that there is credible intelligence to suggest that groups and individuals have the capability and the intent to conduct a terrorist attack here in Australia. Unfortunately, we cannot fully eliminate the threat of terrorism here in our own country, nor has any other country around the world been able to do so. Recent attacks in the United Kingdom and New Zealand, allegedly carried out in the name of violent ideologies, serve to remind us of this fact. What we can do is provide our intelligence, security and law enforcement agencies with the best tools, both operational and legislative, to manage the risk and reduce the threat posed to Australians. This bill goes to one of those key legislative tools.

We know that there are convicted terrorist offenders in prison right now whose sentences are soon to expire and, regrettably, many of those people represent an ongoing threat to the community because they are unrepentant in their ideology and have been unwilling, in many cases, to undergo any reform opportunities provided to them in prison, including de-radicalisation programs and other opportunities. There are currently two options available for managing such offenders. The first is a continuing detention order, which Senator Fawcett spoke about at some length. That allows a court to order that a person may remain detained where they pose an unacceptable risk to the community and where that risk cannot be addressed through less restrictive means. The second option is a control order, which allows conditions to be placed on a person after they are released back into the community.

While these tools have proven at times to be effective, there has remained a glaring hole in the suite of powers that our agencies have to manage this risk. The continuing detention order scheme requires—quite rightly, given the significant deprivation of liberty involved in keeping someone in custody after their sentence has been discharged—a very high legal threshold to be met for a court to agree to the ongoing detention of an offender who continues to pose an unacceptable risk. The scheme for control orders, which are currently issued by federal courts, only permits a defined set of conditions to be imposed upon a terrorist offender and it creates—unintentionally—an interoperability issue, whereby the court considering an application for a continuing detention order is not able to impose conditions on the offender where it is not satisfied that a threshold for the continuing detention of the offender is met. This is really important, and this bill will address this. This discrepancy continues to run the risk that some offenders may end up walking free with no ongoing supervision, even when the court has concerns that a person may pose a serious risk to the community.

This bill seeks to address these issues by introducing an extended supervision order scheme which would allow a state or territory supreme court to make an extended supervision order in relation to a convicted, high-risk, terrorist offender, if satisfied on the balance of probabilities that the offender poses an unacceptable risk of committing a serious terrorism offence if released into the community at the end of their sentence. The ESO scheme provides the court with a wider range of measures that can be used to better tailor the response to a particular offender and their individual circumstances. The evidence put to the committee was that those circumstances do differ and that different restrictions or supervisions are appropriate to be tailored to meet the needs of that offender and to meet the needs of the community in being protected from that risk.

The Parliamentary Joint Committee on Intelligence and Security reviewed the proposed legislation, as well as some further government amendments that were provided to us part way through our inquiry, and we're strongly supportive of the introduction of an extended supervision order scheme to manage this ongoing threat of terrorist offenders. The committee received submissions from agencies such as the Australian Federal Police as well as public interest groups such as the Law Council of Australia, which assisted us greatly in our consideration of this bill. I thank particularly those regular submitters to the committee for the way in which they assist us to do our important work.

The AFP advised the committee that the terrorism environment in Australia continues to grow in its complexity:

While the National Threat Level has remained at PROBABLE, ongoing challenges to law enforcement include the demise of the IS territorial caliphate and the need to investigate and prepare for the possible return of foreign fighters; continued investigations into domestic attack planning; the aftermath of the March 2019 Christchurch attack - the first mass-casualty terrorist attack by an Australian right-wing terrorist; the increased threat of right-wing terrorism; the role of technology in propagating violent extremist ideologies; and the heightened need to address the reintegration and continuing risks associated with the release of convicted high risk terrorist offenders completing their head sentence.

The committee noted in particular the evolving nature of the terrorism threat and the increasing complexity associated with people who, unfortunately, are being radicalised online. Quite disturbingly, in evidence to the committee and since in public, this is at a much younger age. Unfortunately, this has continued, and we fear was likely accelerated, during the COVID pandemic.

In considering the evidence provided we recommended what we think are practical and sensible amendments to the bill, including ensuring that issuing authorities consider whether an individual is subject to a post-sentence order under a similar state or territory regime and ensuring that the individual and combined effect of all of those conditions remain both proportionate and necessary.

The government has accepted in full, in part or in principle 10 of the 11 recommendations made by the committee. I want to thank the AFP, the Attorney-General's Department and the Department of Home Affairs, as well as the other submitters, for their engagement with and contributions to the committee. And I want to thank the government for its constructive response to the committee's recommendations, which it has tried very sincerely to implement as consistently as possible with our report. That's a very important part of what we do.

The PJCIS continues to strongly support the AFP and the important work they do, ensuring that they have the necessary tools to disrupt the activities of those who would seek to harm the Australian community and our way of life, while also ensuring that the appropriate safeguards and oversight mechanisms are in place. These do go hand-in-hand, and the next bill on the agenda which we'll talk about relates to some of those oversight and safeguard mechanisms.

This bill, including the government amendments, which have now been approved by a majority of states and territories in accordance with the intergovernmental agreement on counterterrorism laws, is a really important one to ensure that the community remains safe and protected from this, regrettably, ongoing threat of terrorism. It will ensure that our agencies continue to have the appropriate and necessary powers that they need to combat complex terrorist offenders. Australians can therefore continue to have confidence in the ability of our law enforcement officers to keep them safe. I commend the bill to the Senate.

Andrew McLachlan (SA, Liberal Party) Share this | Link to this | Hansard source

LACHLAN () (): I rise to speak about the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. This bill seeks to amend the Criminal Code Act 1995 to introduce the concept of an extended supervision order, which may be imposed on terrorist offenders if they're released into the community and the court finds that on the balance of probabilities they pose an unacceptable risk. It can then apply various conditions on that individual. There are also ancillary amendments in the body of the bill which expand monitoring and surveillance powers to support this initiative.

As an old defence lawyer, these types of bills always put a shiver up my spine. They always have the language of Orwell, and they should be considered at great length before passing any parliament. In this instance, in my review of the bill, I have found comfort in the process of the bill as outlined by my friend and colleague, Senator Paterson. It is not a knee-jerk reaction to a supposed problem. It is a real problem. The foundation stone of this initiative is that there is an existing and increasing terrorist threat to this country as groups seek to take away and challenge our liberty with asymmetric warfare. As my other colleague and friend Senator Molan has expressed, that is only going to increase, unfortunately, and become far more complicated.

What also gives me comfort in relation to this bill is that the parliament has already decided to have this type of order, so it would be presumptive of me, as a new member of the Senate, to rail against an order when the parliament has already settled on a regime of this nature. In fact, this provides an additional, less restrictive option for the courts, not only because there is a possibility for a person that will not reject their ways of evil and violence that they may fall between the current legislative regime and return to civilian life but also it is less restrictive and gives greater options. In this country we already have control orders, interim control orders, preventative detention orders and continuing detention orders. So the fact that this is less restrictive and provides for less restrictive options should find favour with members of this Senate.

It has gone through the Parliamentary Joint Committee on Human Rights, it has been examined by the Senate Standing Committee for the Scrutiny of Bills, it comes from a suggestion of the Independent National Security Legislation Monitor and, of course, it has been subjected to an inquiry by the Parliamentary Joint Committee on Intelligence and Security. The parliament and this Senate have worked hard to bring this bill to the chamber without any unnecessary oppressive conditions and sought to balance the rights of the individual against the needs of the collective. That is, of course, always a difficult conundrum.

There were two aspects of the bill which were, if I can use the term, 'debated' by the various committees. One was that this is a form of punishment. If a person commits a crime, they are tried, found guilty and punished. There is always an objection, once the punishment is complete, that they shouldn't be punished again. The rationale for the bill by the government, and it has some merit, is that this is a control order about future risk and not a compounding punishment. You have to accept that principle to accept this bill. I dealt with this ethical dilemma when I was in state parliament and similar legislation was brought in by the Labor government in relation to sex offenders who weren't rehabilitated but were leaving prison and posing a significant risk to the community. The parliament similarly settled on a like rationale.

The other aspect of the bill which was subject to much debate in the committees or in dialogue between the various parties, was the concept of the lower burden of proof on the balance of probabilities that there was the likelihood of an unacceptable risk. The government's view, which was accepted by members of the committee in its dialogue, was that this is a lesser condition placed on the individual. The others are detention orders and thus should have a higher burden. This is a less restrictive condition which potentially allows these individuals to return to the community, albeit under particular reporting conditions and/or surveillance. So, again, the resolution or the landing of both the government and the various committees has given me comfort, and I also appreciate the comments from across the aisle from members of the Labor Party, similarly taking a view that we appear to have landed at least in a position of some balance.

Speaking of balance, I've always had an interest in the debate about liberal democracies restricting individuals' rights in the pursuit of the collective security. It's a fascinating topic, and there are, dare I say, hundreds of articles—maybe more—on this topic. In my reading, in contemplating my comments for the debate tonight, I came across a 2006 article by Christopher Michaelsen, 'Balancing civil liberties against national security? A critique of counterterrorism rhetoric'. He argues, interestingly, that the dichotomy between civil liberties and restricting them for national security is a false dichotomy, a false debate, not a rewarding one that will lead you down the path of a rational conclusion. In fact, he points out that people always argue that we must curtail civil liberties to combat terrorism. On the flip side, others argue that if we curtail our liberties we're no better than the terrorists. That's an oversimplification of a complicated argument. But he does cite various aspects of German law. I do not profess to be an expert in German law at all. It is something I have never studied. I do have a degree in Scot's law, but it's unhelpful this evening. German constitutional jurisprudence uses a proportionality test, which consists of three main requirements. Any curtailment of constitutionally protected civil liberties and human rights must generally be (1) suitable, (2) necessary and (3) appropriate. I only raise this point for the benefit of members and perhaps their future reading. But I think, even if you apply that test, having regard to the various reviews of the committees, this bill should find favour with the Senate.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

At the outset can I say that I was privileged to hear three very thoughtful contributions to this debate before having the opportunity to speak myself. The first was from Senator Fawcett, who has been a longstanding member of the Parliamentary Joint Committee on Intelligence and Security. I thought he gave a particularly thoughtful contribution in relation to the practical matters of evidence-gathering and how these need to be considered in the context of the particular case. Then Senator Paterson, who I think is making an outstanding contribution as Chair of the Parliamentary Joint Committee on Intelligence and Security, provided some sobering reflections, based on submissions to the inquiry, in relation to Australia's current threat level and exhorted us to ensure that, as senators in this place, we have regard to the tools that are needed by our intelligence and law enforcement agencies to combat the terrorist risk on both an operational basis and a legislative basis. In that regard, Senator Paterson made the point about the two options currently available—continuing detention orders and control orders—and the need to have something else, that being the extended supervision order, which provides a bit more flexibility in relation to the controls which could be placed on a particular individual. Senator McLachlan spoke intelligently about the fact that this option provides the judiciary, in particular, with an order, an option, to impose some sort of control that is something less than a continuing detention order. That should really be front of mind as we consider this legislation before the chamber this evening.

Senator McLachlan's contribution to this debate should give the Australian public great comfort that, when matters such as this come before this chamber there are senators such as Senator McLachlan, Senator Paterson, Senator Fawcett and Senator McAllister—who's now deputy chair of the Parliamentary Joint Committee on Intelligence and Security—who think thoughtfully about these matters and are alive to the inherent tension between ensuring the protection of our community, on the one hand, and being mindful of every citizen's rights and liberties, and the rule of law, on the other.

I want to pick up on a few of the points that Senator McLachlan made. The first is about the process this bill has gone through. I believe vehemently—passionately—that process is extraordinarily important when this place considers legislation. It is so important that public peak groups, like the Law Council of Australia, have the opportunity to make detailed submissions with respect to proposed laws that those submissions are considered soberly and intelligently; that proposed amendments that should be considered and adopted are adopted and that necessary amendments are made; and that governments of whatever persuasion don't simply stand on their dig and refuse to make amendments to draft legislation.

I'm very pleased that Senator McLachlan referred to that process. The Parliamentary Joint Committee on Intelligence and Security made a number of recommendations to the government. Those recommendations were adopted by the relevant departments and amendments were made to this legislation, which we're considering this evening. In addition to that, as Senator McLachlan referred to, this bill has gone in front of a number of scrutiny committees. I'm a big fan of the Senate scrutiny committee process.

The Scrutiny of Delegated Legislation Committee is where I serve with my good friends Senator Davey and Senator Ciccone, who are with us this evening. They make an outstanding contribution to that committee. I see Senator McAllister's here as well. I gave her a compliment before—I didn't know she was in the chamber when I mentioned she serves as deputy chair on the Parliamentary Joint Committee on Intelligence and Security. There's also the Parliamentary Joint Committee on Human Rights.

This legislation has gone in front of both of those scrutiny committees. The security intelligence monitor has considered this matter as well. So that process should give a lot of comfort to the Australian public. Senator McLachlan also made the very intelligent observation that similar issues had been considered in the realm of sex offenders. This is not a case of compounding punishment but one of mitigating future risk and that needs to be considered.

I think the most important duty of any government is to protect our law-abiding citizens, our nation, against threats, be they external or internal. In doing so, the appropriate balance must be sought with respect to also protecting the rights and liberties of everyone residing in this country. I reflected on three recent terrorist attacks and how this bill interrelates with what occurred in those three cases. In the 2019 London Bridge terrorist attack the perpetrator had been serving a 16-year sentence on terrorist charges, had been released on licence and, notwithstanding some of the observation procedures which had been implemented with respect to him, managed to perpetrate a terrorist crime to great consequence and with a number of fatalities. There was the Streatham attack in 2020—another stabbing terrorist attack by someone who had committed a previous terrorism-related offence, was under surveillance but still perpetrated another crime against innocent people. Then there was the Auckland attack on 3 September 2021, closer to home, where eight New Zealanders were stabbed in a crime which was perpetrated by someone who had been released from prison—in this case, in July of 2021—and had been followed for 53 days straight by the security force in New Zealand. They followed him for 53 days straight but still they couldn't prevent that awful attack on those eight people who were stabbed during that awful incident.

This is a real issue, and we in this place would not be discharging our duty if we weren't to soberly consider whether or not, as Senator Paterson put it, our intelligence agencies have all the tools at their disposal to protect Australians. I have looked at the tests, as Senator McLachlan has looked at the tests, to consider whether or not there are appropriate checks and balances. And as Senator McLachlan did, I too have come to the conclusion that those checks and balances are certainly here. This applies only to high-risk terrorist offenders. The Supreme Court of a state or a territory has to be satisfied on the balance of probabilities that a convicted high-risk terrorist offender poses an unacceptable risk of reoffending and that any conditions which are imposed are reasonably appropriate and reasonably necessary to protect the community. I think that's an appropriate test. I don't think I'd be discharging my duty as a senator if I weren't to support the legislation which is before the chamber this evening.

It should also be noted that there are other reforms, other amendments, which are being brought in conjunction with this legislation around the use of search warrants and electronic surveillance. There has been appropriate consideration as to whether or not some of the decisions made under the course of the implementation of this legislation should be subject to judicial review. I think appropriate consideration has been given in that regard and an appropriate conclusion reached in that respect.

In summary, I think the regime in this legislation provides more flexibility. It allows courts to impose conditions which are more specific and more tailored to the idiosyncrasies of a particular case, and I think that's appropriate. Above all, it protects the community and strikes the right balance of protecting the rights and liberties of our citizens. I commend the bill to the chamber.

Claire Chandler (Tasmania, Liberal Party) Share this | Link to this | Hansard source

It's a pleasure to rise tonight to speak on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. I have been in sitting in the chamber for some time now, listening to the debate on this bill and looking around the chamber. It's always nice to be in here on a night when we are debating legislation and we see senators from both sides of the chamber nodding along in agreement to each other's contributions. It's a testament to the hard work and bipartisan regard undertaken by the Parliamentary Joint Committee on Intelligence and Security. We've heard many considered contributions in here tonight on this bill. I listened along to Senators Molan, Fawcett, McLachlan and Scarr, and they all made very reflective and considered contributions that go to all of the complexities around dealing with these very significant national threats.

Senator Paterson, as well, as Chair of the Parliamentary Joint Committee on Intelligence and Security, went through some of the nuances around this legislation and outlined the work that the PJCIS undertook to ensure that this legislation does strike the right balance. Senator Scarr mentioned in his contribution the importance, or indeed the primacy, of government's role in protecting our nation against threats. That is an incredibly important thing that motivates many people to seek election to this place and something for all of us to consider in the back of our minds when we are passing legislation through these chambers.

As a member of the coalition government, I'm proud of everything this government has done, since I was first elected, in 2019, to keep Australians safe. Indeed previously, in my role as a committee member on the Senate Standing Committees on Legal and Constitutional Affairs, I had the opportunity to question the Australian Federal Police, ASIO, Home Affairs, the Attorney-General's Department and the like about the current security threat in our country, which this legislation attempts to deal with, and about what we can do to keep our community safe from those who seek to harm us in such horrendous ways. The bill that we are debating this evening is another part—another brick in the wall, so to speak—of us doing everything that we can to keep our community safe. This legislation, we know, is necessary to keep Australians safe, to keep our community safe.

We know there are people in this country who want to kill and injure innocent Australians in pursuit of their extremist agendas. We know this because many of them have been caught in the act of preparing to commit mass murder and violence. They have been found guilty by a court and sent to prison. We also know that many of these convicted terrorists have been given sentences that allow them to be released from prison after just a few years behind bars. We know that, in many of these cases, security services will consider these people to be still committed to their dangerous ideology and determined to use their release to continue to pursue violence and murder. Again, this is something that I have pursued with the AFP previously at Senate estimates.

It continues to amaze me that, as a society, we insist on giving second and third chances to the worst kinds of criminals who have committed or planned to commit the worst possible types of crimes against innocent Australians. We see it all the time with sex offenders and child abusers. These dangerous criminals are sentenced to a few short years in prison and then they're back in the community despite the fact many of the experts believe that such offenders will never be rehabilitated and will always be at risk of causing more harm.

Terrorism is another type of crime where it is clear-cut: if you've planned or participated in a terrorist act, you shouldn't be out on the streets—not today, not tomorrow, not next year. Most of the responsibility for ensuring that is the case rests with the courts. As a parliament, we can only do so much. That's why it's important that we do exercise the powers we have as lawmakers to keep the community safe from those who we know wish to do us harm. The bill that we're debating here this evening helps to achieve this by improving the ability of our courts to make extended supervision orders, ESOs, on a convicted high-risk terrorist offender and, under that ESO, to impose any conditions that it is satisfied are reasonably necessary for the purpose of protecting the community.

Sadly, we've seen examples around the world where known terror suspects and previously convicted terrorists have committed further atrocities when they've been released, and we know that the risk of terrorist acts remains present. Last year the UK parliament had to rush through legislation to end the absurd practice of automatically releasing terrorists halfway through their sentence, after one of those terrorists committed another heinous act following their release. There is little doubt that law enforcement and security agencies have serious concerns about the release of convicted terrorists who not so long ago conspired to murder innocent Australians. It has been reported that some retain active contact and influence with terrorist circles, including actively working to recruit other violent criminals to their terrorist ideology. This revelation demonstrates the problem with courts giving terrorists the benefit of the doubt at sentencing. There's every chance that they'll walk out of jail on the date by which the court hoped they'd be rehabilitated, having spent their time in jail continuing to hold and expound to others the same murderous ideology.

Our security services and our police forces do a fantastic job of tracking down terrorists and putting them behind bars. So why do we let them back onto the streets and tie up our law enforcement services tracking and monitoring the same terrorists that they've previously caught? The terrorists certainly don't deserve that kind of generous optimism, and the Australian public doesn't deserve to be put at risk. For the large proportion of criminals who are not seriously dangerous and whose crimes are of lesser magnitude, rehabilitation is, quite rightly, a significant priority of the justice system. For those criminals, that is an appropriate avenue that we should pursue. But to prioritise the hope that a terrorist would have learnt the error of their ways after a few years in prison over the public safety measure of having them detained and off the streets is absolute madness. Our sentencing system and, indeed, the process that we have for dealing with these violent offenders on release need to be able to deal with the potential that, at the end of the initial head sentence, there is still a serious community safety concern. That's what this bill that we're debating, the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, is all about. The courts and the parliament must be putting community safety first and keeping these dangerous criminals off the streets and behind bars.

To go to the detail of the bill, part 1 of schedule 1 creates an extended supervision order scheme, the ESO scheme, for high-risk terrorist offenders in division 105A of the Criminal Code. A state or territory supreme court would be able to make an ESO in relation to a convicted high-risk terrorist offender if satisfied on the balance of probabilities that the offender poses an unacceptable risk of committing a serious terrorism offence if released into the community at the end of their sentence. Under an ESO, the court may impose any condition that it is satisfied is reasonably necessary, reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. Again, this bill minimises some of the guesswork that might have to be undertaken once an offender's sentence has expired and instead creates a new opportunity to make that assessment to determine whether the individual concerned is still of significant risk to the community, and that is incredibly important.

Part 2 of schedule 1 would amend various pieces of legislation—the Crimes Act 1914, the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979—to extend the existing surveillance and monitoring powers that were available for control orders to apply to ESOs, including search warrants and warrants for various types of electronic surveillance. Law enforcement agencies would be able to seek electronic surveillance warrants under the Surveillance Devices Act and the Telecommunications (Interception and Access) Act to inform the minister's decision on whether to apply for an ESO or a CDO. Part 2 of schedule 1 would also amend the National Security Information (Criminal and Civil Proceedings) Act 2004 to extend the court-only evidence provisions and the special advocate scheme that applies in control order proceedings to ESO proceedings. There are a number of further amendments to other important pieces of legislation in the remaining schedules of the bill, which, in the interests of time, I will leave to others to go into.

As I said, the government are committed to ensuring the safety and security of all Australians. In my opening remarks I noted that, as a member of the government, having commenced my term as a senator in 2019, I'm very proud of all the work that we've done in this space. We have seen recent terrorist attacks, and I mentioned the United Kingdom. But other colleagues have referenced ones far closer to home in their contributions—in New Zealand, where convicted terrorist offenders continue to pose a risk to the community at the end of their sentences. This bill will enhance the safety and security of every Australian by creating ESOs to ensure that those high-risk terrorist offenders can be appropriately managed in the community at the end of their custodial sentences.

As I've said, a Supreme Court will be able to impose an ESO for up to three years at a time if the court is satisfied, on the balance of probabilities and on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence. The court will be able to impose any condition on any offender that it considers is proportionate to the risk that the offender poses. The bill also provides agencies with the necessary tools to monitor compliance with these orders and to protect sensitive national security information in ESO proceedings. We know that it is incredibly important that our law enforcement agencies have all the tools which they should have available to them to be able to monitor compliance. This is because that can be an incredibly complex and often incredibly costly exercise, so we should be doing everything we can to make that process easier for law enforcement.

The Parliamentary Joint Committee on Intelligence and Security has considered this bill and made recommendations. The government has accepted 10 of those in full, in part or in principle. Again, it has been so interesting to sit here in this chamber this evening, to listen to the debate on this incredibly important bill and to see the fruits of the PJCIS bipartisan process in reviewing this legislation and ensuring that it strikes that important balance between, as Senator Scarr said before me, ensuring that all of our citizens are equal under the law, that we're all afforded the rule of law and natural justice on the one hand, but, on the other, ensuring that our community is kept safe.

I think that this bill, the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021, will go part of the way to keeping Australians safe. I know that we as a government have already done so much to ensure that Australians are safe, and we'll continue to do so into the future. We have a firm commitment to the Australian people that we'll do whatever it takes to ensure the safety of all Australians. On that note, I commend this bill to the Senate.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

I rise today to speak on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. It's great to follow some excellent contributions from my fellow senators. I enjoyed listening to Senator Chandler and to Senator Scarr before her. And I was in the chamber earlier, at the beginning of this bill, and heard Senator Keneally with her opening for the opposition. It's terrific to see the bipartisan way in which this bill is being addressed and I thank the Labor Party for their continued support for such important issues and matters, particularly as they come before the Senate.

I'm proud to be part of a government that's so committed to a strong stance on national security. I have seen that ever since I was elected. Since the beginning of my term I have seen the significant commitment that this government has to protecting Australians against the atrocities of terrorism, ensuring that that's dealt with and stamped out, and certainly addressed. But we must always remain vigilant; this isn't just a set-and-forget situation. We know that these threats are continually evolving, and legislation has to keep up with that. The way we address and police threats and the way we thwart potential attacks obviously have to continue to evolve. This legislation goes some of the way towards addressing some of those evolving and changing circumstances.

This government has committed over $270 billion to defence spending over the next 10 years. That figure is up 40 per cent since 2016. We are a government that is absolutely committed to the security of our nation and to protecting Australians, whether it be here on our own soil or across the world, thwarting the development and rise of terrorist actors that would seek to disrupt our way of life, impede our freedoms and, sadly, cause misery and attack upon Australian citizens—indeed, upon anyone in this country. The Morrison government is committed to ensuring the safety and security of all Australians. Australia has a robust national security and counterterrorism framework that ensures our agencies have the powers that they require to prevent terrorist attacks and manage those who would seek to commit them.

Since the terror threat level was raised to 'probable' in 2014 the government has passed 19 tranches of national security legislation. This legislation ensures agencies have the powers that they need to be able to prevent terrorist attacks. These laws are kept under constant review to ensure that our legal frameworks are appropriate and adapt to the evolving threat environment. Protecting the community from terrorist attacks is ultimately one of the Australian government's highest responsibilities. It's certainly one of our highest priorities. If the Australian people know one thing about the Morrison government, it is that it has not shied away from the key task of keeping them safe. The latest piece in our national and regional security puzzle, the AUKUS agreement, is an important example of this.

This bill will give our domestic law enforcement agencies an important tool in their toolbox to keep Australians safe. It will enable the creation of what is known as an extended supervision order, or ESO, that high-risk terrorist offenders can be placed under and that will operate under division 105A of the Criminal Code. Under this new scheme, respective state and territory supreme courts will be able to make an extended supervision order in relation to a convicted high-risk terrorist offender if they believe that, on the balance of probabilities, the offender poses an unacceptable risk of committing a serious terrorism offence if released into the community at the end of their sentence. This scheme will ensure the ongoing safety of the community from these criminals in situations where a court is not convinced that ongoing detention is necessary but where a risk is still present.

As we've seen in recent years, convicted terrorist offenders can continue to pose a significant risk to the community, even after they've served the sentence of their initial crime. This played out, sadly, in the tragic consequences of the 2019 London Bridge attack and also, more recently, in the recent terror attack in New Zealand. We must ensure that Australians are safe from convicted terrorists. With several convicted terrorist offenders due to complete their custodial sentences in the next five years, the need for effective risk management measures to keep our community safe is greater than ever. These people can never be allowed to perpetrate such an attack on Australian soil. If anything could or should unite all of us in this place, it should be that. As I said earlier, I'm very pleased to hear that the Labor Party is supporting this bill, and I'm pleased about their approach on the Parliamentary Joint Committee on Intelligence and Security. It is very important, and I thank them for the fact that they have approached this in a bipartisan way.

The implementation of an extended supervision order can be extended for up to three years by a relevant court and can involve any condition on any offender whom the court considers proportionally risky—that is, any condition can be applied to any convicted terrorist that a court feels is necessary to keep Australians safe. These conditions can include prohibitions, restrictions or obligations, and we need—our law enforcement agencies need—to be able to have the legal operations to make decisions to keep Australians safe. This is what this bill is enabling; this is exactly what this bill is doing.

The Parliamentary Joint Committee on Intelligence and Security has considered the bill and made 11 recommendations. The government is accepting 10 of those recommendations in full, in part or in principle. The Greens' refusal to support this bill is disappointing. It's predictable, but it is nonetheless disappointing—and shameful, in fact. They point out that many counterterrorism laws have never been used. That's a good thing, isn't it? Thank God we actually haven't had to use them, because that would mean there has been an atrocity that's occurred on our shores.

I'll return to the AUKUS agreement. Just hours ago, Minister Dutton signed an official agreement with the United Kingdom and the United States to access their nuclear submarine technology. This is a very big step for our country. We are taking it in lock step, and we're going in lock step with two of our closest allies, helping to ensure the safety and the security of our nation as well as those of our region and our regional allies. I just want to commend Minister Dutton, the Prime Minister, Minister Payne and all those involved in the negotiation of this very important and, indeed, historic agreement. There really hasn't been agreement like this for many, many years. It's emblematic of Australia's commitment to upholding our role in the Asia-Pacific, while recognising the importance of our traditional allies. It's also emblematic of this government's commitment to national security. I must admit that Labor's commitment to AUKUS in that regard is commendable, and, as I've said already, their bipartisanship on this bill is also much appreciated.

But it's not only on submarine technology that we are increasing our cooperation with the US and the UK. In 2019 it was announced that the United States and Australia had entered into formal negotiations for a bilateral agreement under the United States's Clarifying Lawful Overseas Use of Data Act, the CLOUD Act, as the first step towards significantly boosting law enforcement cooperation between two allies, with strong protections for the rule of law, privacy and, importantly, civil liberties.

Contained within this bill, the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021, is a schedule amending the framework that facilitates Australia's entering into cross-border access to data agreements. This will make it easier for data sharing between the United States and Australian law enforcement and border security personnel. This data can also be used to monitor ESOs and would cover all supervisory orders related to terrorism and terrorism related activities made under part 5.3 of the Criminal Code.

This bill is an important addition to the government's response to the terrorism threat. The amendments to the Criminal Code have been approved by a majority of states and territories, we've heard, and as required by the Inter-Governmental Agreement on Counter-Terrorism Laws.

To enable the parliament to give full consideration of this bill, it was referred to the Parliamentary Joint Committee on Intelligence and Security, who have reported back. As I said before, nearly all of the recommendations of the committee's report were implemented, and it really is time for this legislation to be dealt with here and to be passed. So I certainly do commend the bill to the Senate, but, in closing, can I just thank that committee for their dedication? Senator Keneally, in her opening remarks, made reference to the way that that committee works so well together and, in particular, pointed out that a lot of the heavy lifting of this was done by the previous chair, now the assistant defence minister, Mr Hastie, in his role, so I thank him and the current chair, Senator Paterson, for their commitment. The work they do on that committee is so important. They carry quite a significant administrative load. The work they do really is to be commended. They are dedicated. In particular I single out Minister Hastie, the former chair of this important committee—the Parliamentary Joint Committee on Intelligence and Security. I know he absolutely committed himself to this committee. He's a former SAS officer. He was very committed. He knows security. His dedication to this committee—and, indeed, the dedication of all members of that committee—is very much appreciated. I thank them very much indeed. I commend this bill to the Senate.

Richard Colbeck (Tasmania, Liberal Party, Minister for Senior Australians and Aged Care Services) Share this | Link to this | Hansard source

I thank my parliamentary colleagues for their contributions to the debate on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. Protecting the community from terrorist threats is and will continue to be one of the government's highest priorities. This bill will be an important addition to the government's response to protect the community and keep Australians safe from terrorist threats. Extended supervision orders will complement and add to the existing tools available to manage high-risk terrorist offenders at the end of their custodial sentences.

I thank the Parliamentary Joint Committee on Intelligence and Security for its detailed consideration of this bill. I also thank my colleagues across the chamber for recognising the need for these important measures. This bill reflects the government's ongoing commitment to protecting the Australian community from terrorists and ensuring our law enforcement and security agencies have the powers they need to respond to the evolving threat of terrorism. I commend the bill to the Senate.

James McGrath (Queensland, Liberal National Party) Share this | Link to this | Hansard source

The question is that the second reading amendment moved by Senator Thorpe be agreed to.

James McGrath (Queensland, Liberal National Party) Share this | Link to this | Hansard source

The question is that the bill be read a second time.