Christian Porter (Pearce, Liberal Party, Parliamentary Secretary to the Prime Minister) Share this | Link to this | Hansard source

The National Security Legislation Amendment Bill, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill and soon the Telecommunications (Interception and Access) Amendment (Data Retention) Bill represent collectively the most significant reforms to the legislative regime governing Australia's national security for many years. I rise first to support the Attorney-General for his stewardship of this suite of legislation, which is critical to our national security and which has been drafted in a way which is reasonably and proportionately adapted to its important purpose. Secondly, I wanted to make some comment on two points of criticism that have emerged regarding the package of bills that have been debated so far. This is worthwhile doing because it illustrates how sometimes when issues of civil liberties are raised in the context of what are often technical criminal law and security legislation there is a tendency to give undue weight to arguments that are just plainly wrong.

There are two examples of very weak arguments that moved almost seamlessly from being espoused by fringe adherents of completely unfettered civil liberties to the mainstream media: firstly, that the National Security Legislation Amendment Bill constructed new and unreasonable restrictions on press freedom and, secondly, that the Foreign Fighters Bill in its overseas travel exclusion somehow reversed the onus of proof in a manner that is radical or unacceptable. Of course, there is no such thing even close to resembling unfettered freedom of speech, of travel or of the press and there is always a balancing exercise to determine where to appropriately draw the line between public safety and the limits of a variety of types of personal liberty.

But a key rhetorical device used repetitiously in arguing against just about any security measures is that what is proposed is unheralded, new or radical. If true that argument carries some weight, but the problem is that it is rarely correct. I suspect that this claim will be incorrectly made with respect to the upcoming data-holding provisions. In anticipation of that, it is worthwhile looking at how true the claim was with respect to previous civil liberties arguments. It has been argued that clause 35 of the National Security Legislation Amendment Bill 2014 represented some kind of unheralded restriction on the ability of the press to report on law enforcement operations.

Leaving aside the fact that clause 35 applies to all persons, and that it is not exclusively or even primarily aimed at journalists, and leaving aside the fact that security intelligence operations are rare and are only conducted in the most serious of circumstances, and leaving aside the fact that the amendments do not allow for the suppression of information relating to unlawful conduct, which preserves the right of any person to provide information to the independent Inspector-General of Intelligence and Security for investigation and, where appropriate, public reporting, and leaving aside the fact the provision is designed for a clear and reasonable purpose of protecting the life and safety of ASIO officers. Leaving all that aside, it is simply incorrect to suggest that there is something new in the provisions. This is so because it is a principle, a mechanical provision and a legislative structure that already applies to protect AFP officers engaged in commensurate operations. There is simply nothing new, radical or novel in the provisions that have been passed through this House.

The second area where the very weak criticism of the coalition's national security package has received airtime which was hugely disproportionate to its merit was in relation to the creation of the offence of 'entering or remaining in a declared area'. Leaving aside that the section provides for a number of logical exceptions, we have had arguments such as this from Senator Wright in the other place:

… the offence does not include a fault element; it does not include a mental intention element; it does not require the person to be travelling with any kind of criminal or wrongful intent.

A number of opponents of the legislation have suggested that this provision should be opposed because of its operation and because it reverses the onus of proof and is therefore radical and therefore is the wrong place to draw the line.

Clause 119.2 makes it clear that the defendant bears an evidential burden under clause 13.3, not a legal burden of proof under clause 13.4. Quite simply, what this means is that a defendant who wishes to suggest that they have a lawful reason for being in the area must point to or adduce evidence to show that there is a reasonable possibility that he or she had a lawful excuse to be there—noting that the prosecution case may have already provided evidence. Once the possibility is evident, it must be negated by the prosecution beyond reasonable doubt.

Such a concept is simply not a reversal of the onus of proof, and it is certainly not a process which is novel to the law. Indeed, nothing under this exclusion provision is a novelty. Breaching geographic exclusions is far from novel, nor is the absence of a criminal mental element. Indeed, ever since the Criminal Code Act was introduced in 1995, clause 6.1 has operated to create strict liability offences, where no fault element has been required to be demonstrated.

State governments have been utilising geographic exclusionary orders, in one form or another, for many years to protect the peace and order of nominated domestically geographical areas. It is common in domestic violence orders and move-on notices. None of these are particularly new principles, and neither are those which have been passed through this House.