Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

The Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 is the sixth bill to be introduced since September 2014 making changes to national security and counterterrorism laws. Throughout the Abbott and Turnbull governments, Labor has been steadfast in its principled approach to national security legislation. Labor's bipartisan stance on national security has not wavered.

Through the Parliamentary Joint Committee on Intelligence and Security, Labor has worked with the government through a series of very complex and sometimes controversial bills. That committee worked well in the last parliament and is working well in this parliament. I commend the secretariat of that committee for their very hard work over the past few months.

Just as we are committed to our bipartisan stance on national security, so we are committed to ensuring that any new bills do not unnecessarily encroach on the rights and freedoms that Australians have a right to enjoy. This is an especially important consideration when we are faced with a bill such as the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, which is unprecedented in this country and indeed in the Western world. This bill introduces a framework into part 5.3 of the Commonwealth Criminal Code that provides for a continuing detention order regime for high-risk terrorist offenders who are considered by a state or territory supreme court judge to represent an unacceptable risk to the community. Put simply, it allows convicted terrorists who are judged not to have been rehabilitated to be kept in jail beyond their sentence.

The bill was introduced into the Senate on 15 September 2016 and immediately referred to the Parliamentary Joint Committee on Intelligence and Security. The committee received 18 submissions, including from the Australian Human Rights Commission, the Law Council of Australia, civil liberties groups and Muslim organisations. A public hearing was held, and the committee tabled its report on 4 November 2016.

This bill was closely scrutinised during the committee process. A concerted effort was put into ensuring that this bill has adequate protections in place to ensure that it strikes the right balance between keeping Australians safe and protecting people's rights and freedoms. Labor was particularly concerned to ensure that adequate and correct advice had been received as to the constitutionality of the bill given the breakdown in relations between the Attorney-General and the Solicitor-General at that time. The precedent set in the case of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, where the Attorney-General misled the committee as to the nature of the Solicitor-General's advice, must never be repeated. That is why Labor sought confirmation that the Solicitor-General had given advice on the constitutional validity of the final form of this bill and not an earlier draft. The committee recommended that the government seek advice on the final form of the bill, and we are pleased that the government has obtained that advice from the acting Solicitor-General, Mr Thomas Howe PSM, QC.

The committee made 24 substantive recommendations directed to improving oversights and protections in the bill. The government has now agreed to implement all of the recommendations. A number of amendments to the bill have been secured which implement extra safeguards and aim to strike the appropriate balance between protecting individual rights and community safety. This includes ensuring that terrorist offenders subject to continuing detention order proceedings have access to legal representation and receive a fair trial.

We recognise the extraordinary nature of this bill. That is why it is important that there are a range of review mechanisms, including a 10-year sunset clause and a review of the regime six years after its passage. There should be no assumption that the kinds of measures contained in this bill will become a permanent feature of Australian law.

It was important to ensure that the bill was properly targeted at terrorist offenders. The bill no longer includes treason or offences relating to publishing recruitment advertisements among the offences that would make an offender subject to the continuing detention order regime.

Expert witnesses will play a central role in continuing detention proceedings. The committee has ensured that both the Attorney-General as applicant and the offender as respondent to any application can bring forward their preferred experts and that an expert can be appointed at any time by the court.

The main elements of the proposed continuing detention order regime are contained in schedule 1 to the bill. Schedule 1 proposes to insert a new division 105A into the Criminal Code, comprising six subdivisions from A to F. Proposed subdivision A includes the object of the bill and definitions of key terms. The object of the bill is outlined in proposed section 105A.1 as:

… to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.

Proposed subdivision B provides that a continuing detention order has the effect of committing 'the offender to detention in a prison for the period the order is in force'. An order may be applied to a person if the person has been convicted of a serious terrorist offence.

In the original version of the bill, a continuing detention order could be applied for against a person who had been convicted of the offence of treason. Treason may include causing the death of or harm to the Sovereign, the Governor General or the Prime Minister; levying war or doing acts preparatory to levying war against the Commonwealth; instigating a person who is not an Australian citizen to make an armed invasion of the Commonwealth or one of its territories; materially assisting enemies at war with the Commonwealth; or assisting countries engaged in armed hostilities against the Australian Defence Force. The Law Council of Australia raised concerns that these offences are not necessarily comparable to the other terrorism related offences proposed for inclusion in the bill. The committee accepted this proposition and also noted that no person has been prosecuted in Australia for treason since the end of the Second World War. The committee was concerned to ensure that the scope of offences is rightly limited to terrorism-related activities and did not consider that the inclusion of treason is necessary or appropriate. The PJCIS recommended that treason offences be removed from the scope of the bill.

Proposed subdivision B also includes provisions about how a person who is detained in prison under a continuing detention order must be treated. In summary, an offender: must be treated in a way that is appropriate to his or her status as a person who is not serving a sentence of imprisonment, subject to reasonable requirements surrounding prison management, security and good order, the safe custody or welfare of the offender or any prisoner, and safety and protection of the community; and must not be accommodated or detained in the same area or unit of the prison as persons serving sentences of imprisonment except in certain defined circumstances.

Some submitters to the committee inquiry on the bill were concerned that it might not be possible for these matters to be achieved and that this may result in continuing detention being punitive, in breach of Article 15.1 of the International Covenant on Civil and Political Rights. The requirement that offenders be detained separately to convicted persons is a safeguard that the United Nations Human Rights Committee viewed as necessary to improve similar Queensland laws that were considered by the UN committee in Fardon v Australia and Tillman v Australia. This was also acknowledge by the Parliamentary Joint Committee on Human Rights in its report on this bill.

The PJCIS therefore considered that standards for housing arrangements should be agreed and implemented across all jurisdictions and that urgent attention must be given to ensuring that conditions of detention for offenders are appropriate and consistent with Australia's human rights obligations. The committee recommended that it be provided with a timetable for implementation of this issue by 30 June 2017.

Proposed subdivision C includes provisions about how a continuing detention order can be made. The Attorney-General or his legal representative may apply to a Supreme Court for a continuing detention order not more than six months before the end of the terrorist offender's prison sentence. The application must include certain information and a copy must be given to the offender within two days, subject to certain exemptions.

A number of submitters to the committee were concerned to ensure that crucial evidence that will be relied on during these CDO proceedings not be withheld from the offender. The Law Council of Australia indicated that secret evidence provisions undermined an offender's ability to obtain a fair trial. However, the Attorney-General's Department in the supplementary submissions clarified that secret evidence is not to be permitted. The committee recommended that the bill be amended to make explicit that an offender is to be provided in a timely manner with information to be relied on in an application for a continuing detention order.

Proposed subdivision C also includes provisions about the appointment of relevant experts, the assessments conducted by relevant experts and experts' reports. A 'relevant expert' is defined as a person:

… who is competent to assess the risk of a terrorist offender committing a serious Part 5.3 offence if the offender is released into the community …

The court may make a written continuing detention order under proposed 105A.7 if, following receipt of an application, it is:

… satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community—

and it is:

… satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

The court must have regard to a number of factors in forming its opinion about the level of risk posed by the offender. A number of submitters raised concerns about the bill requiring the court to appoint experts and then make judgements as to the admissibility of the experts' evidence. There are questions also around whether a specialised body of knowledge exists in relation to the prediction of a terrorist offender's likelihood of reoffending. Some submitters also called for the development of a risk assessment tool.

The prediction of future terrorist offending for the purposes of continuing detention order proceedings is of a very different nature to the current schemes in Australian jurisdictions which provide for post-sentence controls to manage sex offenders and violent offenders. There were questions raised about whether diagnostic tools can be used to assess terrorist behaviour in the same way that they are used to assess high-risk sex offenders which fall within a range of diagnostic categories that can be used by psychiatrists and psychologists to predict future risk.

The Law Council of Australia raised the issue that there are likely to be challenges to the qualification of people who may be called to provide expert opinions and that this may put courts in an inappropriate position of ruling on objections to the admissibility of evidence from experts whom the court itself has appointed. In response to these concerns, the committee recommended that the bill and the explanatory memorandum be amended to make explicit that both the Attorney-General, as applicant, and the offender, as respondent, will be able to bring forward their preferred relevant expert, or experts, and that the court will then determine the admissibility of each expert's evidence. A court may also appoint a relevant expert at any time during continuing detention order proceedings.

The period of the continuing detention order must be no more than three years. However, there is no limit on the number of successive continuing detention orders that may be made. The committee recognised that it is possible for a person to be held for a prolonged period beyond their sentence if successive continuing detention orders are applied for and granted by the court. Labor members of the committee were concerned to ensure that appropriate rehabilitation opportunities and programs will be made available to offenders.

Labor strongly believes in ensuring access to justice, and this includes ensuring that people have access to appropriate and adequate legal representation. In its submission to the inquiry, the Australian Human Rights Commission referred to the High Court's judgment in Dietrich v The Queen, noting that Australian law:

… has recognised the inherent power of the Court to stay criminal proceedings where an accused person does not have legal representation and where legal representation is essential to a fair trial.

The committee recommended that the bill be amended to provide that the court has the explicit power to stay proceedings for a continuing detention order and that the court be empowered to make an order for reasonable costs to be funded to enable the offender to obtain legal representation. This is an important step towards ensuring access to justice.

The new bill includes a requirement that the committee complete a review of the regime after six years and that the Independent National Security Legislation Monitor be required to complete a review of the regime after five years. It is of concern that the important position of the Independent National Security Legislation Monitor is presently vacant. To deal with this, the committee recommended that the government appoint a new monitor as soon as possible. We look forward to the government following through on their commitment to do so. That commitment is of course contained in the government's acceptance of the recommendations of the Parliamentary Joint Committee on Intelligence and Security.

We are very pleased that, through bipartisan negotiation, this bill now contains a number of safeguards and review mechanisms to ensure that an appropriate balance has been achieved between keeping Australians safe and protecting people's rights. I commend the bill to the House.

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