Michael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | Link to this | Hansard source

I present the explanatory memorandum to the bill and I move:

That this bill be now read a second time.

The Criminal Code Amendment (High Risk Terrorist Offenders) Bill introduces a framework into part 5.3 of the Commonwealth Criminal Code that will provide for the continued detention of high-risk terrorist offenders serving custodial sentences who are considered by a court to present an unacceptable risk to the community.

The bill has had the benefit of consideration by the Parliamentary Joint Committee on Intelligence and Security (PJCIS). The government has accepted all 24 recommendations of the committee, and all states and territories have indicated their support for the government amendments, now made in the Senate, arising from that and from further consideration of the bill. The government again thanks the states and territories for their partnership in this way in protecting the community against terrorism.

I also acknowledge with gratitude the valuable bipartisan work of the committee, very ably chaired by Michael Sukkar.

Terrorism poses a serious threat to Australia and its people. There have been 24 counterterrorism operations since September 2014. Across the jurisdictions, there are a total of 17 terrorist offenders serving a custodial sentence and 40 people currently before the courts.

While a majority of states and territories, as well as international counterparts, including the United Kingdom and New Zealand, have enacted postsentence preventative detention regimes dealing with high-risk sex or violent offenders, 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.

Commonwealth, state and territory governments are committed to ensuring that Australia's counterterrorism framework remains responsive to the evolving national security threat.

At a Council of Australian Governments meeting in December 2015, leaders agreed to develop a nationally consistent postsentence preventative detention scheme to enable a continuing period of imprisonment for high-risk terrorist offenders.

At a COAG meeting in April, states and territories agreed in principle for the Commonwealth to lead the process of developing a postsentence preventative detention regime that could apply uniformly across all jurisdictions.

On 5 August, the Attorney-General, Senator Brandis, met with state and territory attorneys-general to discuss the issue. The jurisdictions agreed in principle to the creation of a national postsentence detention regime on the terms of the Commonwealth draft bill. Subsequent to this meeting, all jurisdictions agreed to the provisions of the bill in accordance with the Intergovernmental Agreement on Counter-Terrorism Laws, which underpins the existing referrals of power on counterterrorism matters by the states to the Commonwealth.

The Commonwealth considers that the new framework has a sound constitutional foundation. Out of an abundance of caution, however, the Attorney-General has asked the states to enact amendments to existing referrals of power relating to part 5.3 of the Criminal Codeto make explicit that state support extends to the postsentence preventative detention regime.

The regime is modelled closely on existing state and territory postsentence detention regimes for high-risk sex or violent offenders. The government thanks the jurisdictions for the collaborative spirit in which this bill has been developed.

The object of the bill is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders serving custodial sentences who pose an unacceptable risk of committing a serious terrorist offence if released into the community upon the expiry of their sentence.

The bill will enable the Supreme Court of a state or territory to make two types of detention orders against a person. The first is a continuing detention order, which will enable a person to be detained in prison for up to three years. However, further applications may be made, and there is no limit to the number of such applications. An order can only be made against a person who is currently imprisoned and serving a sentence for specified offences under the Criminal Code, including offences related to international terrorist activities using explosive and lethal devices; serious terrorism offences or certain foreign incursions and recruitment offences.

The second type of order a court may make is an interim detention order, which can last for up to 28 days. An interim detention order will be available in circumstances where the terrorist offender's sentence or existing continuing detention order will end before the court has had the opportunity to determine a continuing detention order application.

The bill contains significant safeguards to ensure respect for the rule of law. Only the Commonwealth Attorney-General may make an application for a continuing detention order to the Supreme Court of the state or territory in which the person is currently imprisoned. The court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence if the offender is released into the community. A serious terrorism offence is an offence in part 5.3 of the Criminal Code that carries a maximum penalty of seven or more years of imprisonment. The court must also be satisfied that there is no other less restrictive measure that would be effective to ensure community safety.

A continuing detention order is appealable and must be reviewed every 12 months. Furthermore, a person must be at least 18 years old when their original sentence ends and cannot be accommodated or detained in the same area of a prison as persons serving ordinary sentences of imprisonment except in certain circumstances.

This government has worked and will continue to work closely with the states and territories on this important scheme to protect the community.

Commonwealth, state and territory governments are committed to ensuring that Australia's counterterrorism framework remains responsive to the evolving national security threat.

Countering terrorism is a priority for all Australian governments. We greatly appreciate the ongoing partnership with states and territories in protecting the community from terrorism.

This bill forms part of the government's comprehensive reform agenda to ensure Australia's counterterrorism framework is effective in keeping the Australian community safe. I commend the bill to the House.

Leave granted for second reading debate to continue immediately.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to 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.

Jason Wood (La Trobe, Liberal Party) Share this | Link to this | Hansard source

I rise today to speak on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. As a member of the Parliamentary Joint Committee on Intelligence and Security, I congratulate the committee chair, the member for Deakin, Michael Sukkar, for his great work, and also the deputy chair, who shares a boundary with me, Mr Anthony Byrne, the member for Holt.

The sad reality in my electorate of La Trobe, in south-east Victoria, is that in recent times we have had the awful situation of young people getting involved in violent extremism. There have been a number of arrests, including for attacks against police—and I will go into that further on in my speech. The first thing we want to do when it comes to this sort of situation is to try to do everything we can—and this legislation is obviously tough legislation—to prevent young people entering into that world of violent extremism. We had a program in my electorate called MyHack, and I congratulate Abdullah Alim, who is now the Western Australian Young Person of the Year, who ran the program in my electorate so well. It is a fantastic program. I recognise in the House the member for Cowan, Dr Anne Aly, who is an expert in the prevention of violent extremism. This is an outstanding program and needs to be run right across the country.

Terrorism is a concern we unfortunately face regularly in Australia now, and we cannot sit back and allow our legislation not to evolve with the problem that is evolving. I thank all the law enforcement officers—from the Australian Federal Police, the state police, the joint task force and all those members involved—for the work they do in making Australia such a great please to live. Sadly, we have had a number of terrorist attacks—three in New South Wales and one in Victoria. We have narrowly escaped 11 since September 2014—which, again, is due to great intelligence and great police work. As a former Victorian police officer and also involved in the counter-terrorism unit, I cannot give enough praise to those members who have protected us for so long.

One of the most awful planned attacks was for an attack in Melbourne this past Anzac Day. The plan was to stab and shoot police officers and members of the public. I remember how alert the police were at Anzac Day services and how concerned they were for their own safety. One of those charged was Sevdet Ramadan Besim, 19 years of age. After his plan was foiled, he pleaded guilty to a plot to run over and then behead a police officer before using his gun in a rampage.    In the Victorian Supreme Court in September 2016, Besim was given a 10-year jail sentence, and must serve at least 7½ years before he is eligible for parole.

There were also advanced plans to kidnap members of the public in Sydney and Brisbane and then behead them on camera and release the footage—absolutely shocking. Two schoolboys, who were allegedly preparing for a terror attack in Sydney's south-west, with police alleging they had links to Islamic State, were arrested and refused bail in October 2016. There was a plan to detonate bombs at a Mother's Day running event. There was also the plan to target government buildings, including the Garden Island Navy base and the Parramatta Court House. Again, the targets are regularly what we call the green and blue—the police and defence.

This is a real concern that we must take seriously.    One way to take this threat seriously is to support this amendment to part 5.3 of the Criminal Code Act 1995. I also congratulate Prime Minister Malcolm Turnbull, who has led the charge on this legislation. This amendment inserts a new regime which will enable the court, upon application by the Attorney-General—and I acknowledge the great work he has done on this along with Minister Keenan—to make an order for the ongoing detention of high-risk terrorist offenders serving custodial sentences.

The bill will enable the Supreme Court of a state or territory to make two types of detention orders against a person. The first is a continuing detention order, which will enable a person to be detained in prison for up to three years. An order can only be made against a person who is currently imprisoned and serving a sentence for specified offences under the Criminal Code, including offences related to international terrorist activities, using explosive and lethal devices, treason, serious terrorism or foreign incursions and recruitment. Sadly, we have people travelling overseas and getting involved in terrorism and endeavouring to come back to our country.

The second type of order a court can make is an interim detention order, which can last for up to 28 days. An interim detention order is only available in circumstances where the terrorist offender's sentence or existing continuing detention order will end before the court has had an opportunity to determine the continuing detention order application—which is obviously very important.

Now, I see that there may be public concern about this around whether this amounts to being able to keep someone detained indefinitely. My simple answer to this is: no, it does not. The orders available under this bill are time limited. An order for continuing detention can be made by a court only for a maximum period of three years, although there is no limit on the number of orders that a court can make in relation to a person. The court must review an order for continuing detention every 12 months. And a court's decision to issue a continuing detention order, or a decision to affirm the order upon review, can be appealed.

Adding to this, the bill contains significant safeguards to ensure respect for the rule of law. For example, only the Commonwealth Attorney-General or his legal representative may make an application for a continuing detention order. The court is the decision maker and must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence if the offender is released into the community. This is saying that the person in jail refuses to be rehabilitated and, if they are released into the public, there is a high probability they will get involved in a terrorist attack—which I am sure, Mr Deputy Speaker Vasta, you would be horrified to hear.

Some may ask why this is necessary. The object of the post-sentence preventative detention regime is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders serving custodial sentences who pose an unacceptable risk of committing serious terrorism offences if released into the community. This takes into account those who we know, through intelligence, have been radicalised in prison. There are so many people radicalised in prison, going back to the days of Richard Reid, the shoe bomber who was radicalised in Manchester prison. I had the great pleasure of going to the Victorian Police's Echo Taskforce, who look after the outlaw motorcycle gang members, presentations about the concerns in Barwon Prison in Melbourne, where you have violent extremists being patched over to the Mongols Motorcycle Club. The great news is that immigration minister Peter Dutton, strongly supported by the Prime Minister, put in place the need to have the ability to deport these people who are dual citizens. It is simply not worth the risk of allowing someone we know has terrorist inclinations back into society, because they may commit an act of terrorism. We just cannot take that chance.

At present, once a sentence of imprisonment has been served, convicted terrorists re-enter the community regardless of the risk they pose. It is important to remember that post-sentence preventative detention schemes are not new to Australia. In fact, the majority of states and territories, as well as international counterparts, including the United Kingdom and New Zealand, have enacted post-sentence preventative detention schemes for dealing with high-risk sex or violent offenders. New South Wales and South Australia, like the UK and New Zealand, have schemes which cover both sex offenders and violent offenders, while other states have schemes limited to sex offenders, but there is no existing Australian scheme that provides for post-sentence preventative detention of convicted terrorists.

To date we have had to rely on control orders for monitoring convicted terrorists and terrorism suspects upon their release from prison. These can include reporting requirements to police stations, the provision of fingerprints, restrictions on leaving Australia and prohibition from communicating or associating with a number of individuals. This is simply not good enough. With control orders it is very difficult to follow terrorist suspects. You cannot do it 24 hours a day. When I say 'terrorist suspects', I mean those who have been released with no sign of being rehabilitated. It is the equivalent of releasing a convicted terrorist and saying, 'Be good,' when we know that that specific person still has inclinations towards committing acts of terrorism. If we can preventatively detain sex offenders and violent offenders, there is no reason why we should not be able to do the same with convicted terrorists in order to protect our society.

This bill forms part of the government's comprehensive reform agenda to ensure the safety and protection of the community and it follows other legislative measures that have kept Australia's counter-terrorism framework responsive, effective and efficient. This is not an issue we can afford to drag our feet on. I strongly urge all states and territories to agree to these amendments, as this is very important right across the country.

I would also like to raise an issue that I have been greatly concerned about, even back in the Howard days—what is known as preventative detention. That is where a person is detained by police under preventative detention orders. This is completely separate to what we are talking about at the moment. The police have that person 'on ice', in policing terms. They cannot ask the person any questions regarding the activities they may have been involved in. If the police need to interview that person, they must be released and arrested under part IC of the Crimes Act. I have been greatly concerned about this since it was initially introduced. In relation to the evidence that this is not effective, there has never been a Commonwealth preventative detention order taken out. We have always relied on the states. To me, this is not good enough.

We saw the awful incident with Lindt Cafe in Sydney and we know—and I have previously spoken about this and I highly commend this—that New South Wales have gone down the UK path and have what we call a pre-arrest detention, where they can interview the person in custody. This is something which I know the Victorian state Labor government is dragging its feet on. This is something we need to ensure goes right across the country. The great concern I have is that you can have a person in preventative detention in a police interview room not being asked any questions yet that person has specific knowledge—for example, they know that, once a co-offender involved in a terrorist attack becomes aware that the person in custody got picked up, they will carry out a terrorist attack. To me, that is totally unacceptable and must be changed, and I have had so many frustrations about this over the year. Luckily, we have never had this situation occur, but it is one that I have spoken to the AFP about. No-one can guarantee that it will not occur. Today I strongly recommend the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 to the House.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

I call the honourable member for Cowan, and I welcome her to the 45th Parliament.

Anne Aly (Cowan, Australian Labor Party) Share this | Link to this | Hansard source

I support the proposed Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, with the implementation of the recommended amendments. I also commend the PJCIS on the work that they undertook of thoroughly examining the bill and the improvements to it in the form of 24 substantive recommendations. I would also like to take this opportunity to thank my colleague on the other side, Mr Jason Wood, the member for La Trobe. I had the pleasure of working with Mr Wood in this area before I entered the parliament and I would like to take this opportunity to commend him on his dedication to this field and to recognise the wealth of experience he brings to this parliament through his former role in law enforcement.

I note that the bill proposes a continuing detention order regime for high-risk terrorist offenders who are deemed by the court to present an ongoing risk to the community. I also note that the PJCIS made reference to proposed subdivision C, which includes provisions for the appointment of so-called 'relevant experts' to conduct and provide assessments about the likely ongoing risk presented by detainees, defining a 'relevant expert' quite loosely as a person who would be 'competent to assess the risk of a terrorist offender committing a serious offence under Part 5.3 of the Criminal Code' if that offender were to be released into the community. The PJCIS rightly recommends that the definition of 'relevant expert' be clarified and that each party be able to bring forward their preferred relevant experts.

Apart from the relative lack of expertise in Australia, it is also pertinent and utterly important to raise my concerns about this bill's absolute lack of a framework—any framework—for assessing the risk of reoffending in terrorist cases. There is no terrorist profile, and throughout history all attempts at profiling who is likely to become a terrorist or who is likely to reoffend among terrorist cases have come down to being able just to categorise some very broad demographics. It is generally accepted that terrorist behaviour can be seen as some form of equation which consists partly of cognitive radicalisation, which is the internalisation of extremist or radical beliefs; behavioural radicalisation, which is the acceptance of violence as a means of furthering those beliefs or the cause related to those beliefs; and, importantly, opportunity, which is the opportunity to carry out violent acts.

In addressing the bill today, the Minister for Justice, Mr Keenan, correctly pointed out that it is important that our counterterrorism framework remains responsive to the threat, and I would certainly agree with him. So I think it is very important that we continue to assess the changing nature of the threat and the changing nature of terrorism. What we are seeing, and what we have been seeing over the last five years in particular, is not what we were seeing five or 10 years ago. The cognitive and behavioural mix, in terms of terrorist behaviour, has changed. Most importantly, the opportunity factor in the equation has also changed.

Nowadays, opportunity to commit a violent or terrorist act does not rely on the ability and capacity of groups to form and communicate. Opportunity is as low tech as having access to a knife or a gun—or, indeed, any kind of household implement. In assessing risk, it is vastly more important that we take that into account and, in forming risk assessments, particularly around whether or not a detainee is likely to pose an ongoing risk to the community should they be released into the community, that we take that opportunity aspect of the equation into account.

Labor takes a bipartisan stance on all national security legislation. Our priority is to keep Australia safe. To do that we need a measured, effective and smart approach, with programs and policies that actually work. While this bill has been given the proper scrutiny and now properly targets terrorist offenders—no longer including treason or some of the other offences that were in the original bill—it would be remiss of me if I did not also speak to the urgency of other counterterrorism measures beyond legislative amendments that only impact a small number of people and are limited in the immediate impact they have on our ability to counter terrorism.

This government has promised several million dollars for countering violent extremism, which is the preventive aspect of counterterrorism. The government's much-lauded directory of services has not materialised, so we continue to operate in an environment where there are no programs, no support and no intervention. We have a situation now where we will have terrorist offenders being assessed with no robust assessment framework, in the absence of any robust expertise and, if released, with no programs for ongoing assessment and monitoring.

Before I entered this parliament I researched every single deradicalisation program in the world—those that occur in prisons, in the community and in specialised facilities. Best practice says that no deradicalisation program works without ongoing support, ongoing monitoring and ongoing programs. I must also mention that Professor Hamed El-Said, who is a much-lauded international expert in this field from Manchester Metropolitan University, has recently written an article about deradicalisation in Australian prisons and makes the point that there is need for further rehabilitation programs in Australian prisons.

In concluding, the substantive changes that have been brought to this bill clearly demonstrate that Labor is not just committed to ensuring that all Australians are safe and secure but, importantly, that we are also committed to ensuring that programs, policies and legislation actually work; that they actually target terrorism, they actually have an impact and they are actually effective. No more is this evident than in the fact that this bill, without the amendments that were largely pushed by Labor, would be ineffective, insufficient and simply unable to address the ongoing threat of terrorism. In saying that, I commend the bill in its current form.

Michael Sukkar (Deakin, Liberal Party) Share this | Link to this | Hansard source

I want to commend much of what has been said by previous members and, particularly, the member for Latrobe, who, as a part of the Parliamentary Joint Committee on Security and Intelligence, of which I am chair, contributed greatly to our deliberations of this legislation. Let there be no mistake, today is testament to the fact that the committee I chaired has provided a ringing endorsement to this legislation—an absolutely ringing endorsement. What was provided to us by the Attorney-General, of course with the imprimatur of the Prime Minister, was an A-grade piece of legislation in an extraordinarily difficult area. Yes, there are regimes around various state jurisdictions that relate to post-sentence detention, most particularly for sexual and violent offenders, but for the federal government to extend post-sentence detention, very importantly in our view and thankfully the view of this parliament, to terrorist offenders is something that many thought was so difficult, so hard that it was not worth pursuing. But it took our Attorney-General and Prime Minister to absolutely put their stamp on this legislation and I want to thank them for showing that leadership because nothing is more important—and this is said in a very glib way in this parliament, but nothing is more important—than the safety and security of our citizens.

We are dealing with a phenomenon now, a phenomenon of terrorism—home-grown terrorism in many cases—that we have struggled to react to, not just us in Australia but we have struggled to react to it throughout the Western world. The old thinking, very reasonably, was that you did the crime and you did your time, and then you left incarceration. What we have seen time and time again, not only in Australia but throughout the world, is that many terrorist offenders, due to the ideological beliefs that they hold, go into jail with that insidious ideology and they leave even worse. They are not rehabilitated in prison. They leave even worse. They leave posing an even greater threat to our society, an even greater threat to honest, ordinary men and women in our society. We have seen it time and time again here in Australia—those instances where a terrorist offence occurs and people like my parents, ordinary Australians, would say, 'How come we weren't able to stop them? It seems so obvious that that person was radicalised. It seems so obvious that that person was embarking on a path of destruction and seeking to hurt fellow Australians.'

In a sense, this regime is a last resort; it is a backstop. It is a last resort for the worst cases of terrorist offenders who, with a high degree of probability are determined by a court—not the government, not the Attorney-General but determined by a court—to be such a risk to our society that they must continue to be detained. I think the vast bulk of Australians will applaud this parliament today. I am very pleased that when this piece of legislation came before the Parliamentary Joint Committee on Intelligence and Security that our committee was able to reflect the views of that community. In the process of reviewing the legislation, we received 18 submissions, if I recall correctly.

One of the things that struck me was that, perhaps, there is still a segment of our society—quite a scary segment in my view—who disagree with legislation, extraordinary though it is, as sensible as this. We have just heard comments in this Senate from the Greens, who have opposed this legislation. We had submissions from the Council for Civil Liberties, who said under no circumstances could they ever support a post-sentence detention regime. We had representatives from the Muslim Legal Network, who effectively said the same thing: 'Under no circumstances, even if we knew somebody was very likely to seek to do fellow Australians harm.' Even then, they would not support this regime.

So I want to thank members opposite. I particularly want to thank my deputy chair, the member for Holt, for his counsel and great support during the review we undertook. Indeed, I want to thank most of the members of the committee for the wonderful work they did in ensuring that we were able to come up with 24 recommendations. May I say, yes, there were 24 recommendations, but in most cases those recommendations, in my view, were just performing a function that our committee should, which is just another pair of eyes. We sought clarification of certain aspects of the explanatory memorandum and we, in a sense, had only a handful of substantive amendments, which I think is a great credit to the Attorney-General.

The biggest amendment that we proposed, which our community unanimously presented, was that a 10-year sunset clause be placed on this legislation. My view—public view and private view—is that this phenomenon of terrorism, this phenomenon of individuals who, unfortunately, are beyond redemption and beyond rehabilitation, will not go away in 10 years. This will be with us for a lot longer than 10 years.

The committee felt that a 10-year sunset clause was a sufficient period of time to, in a sense, develop through the working group all of the additional work that will need to be done before applications for continuing detention orders can be applied for; a period of time where we can examine how the regime is working. In that 10 years there will be a body of evidence and, hopefully, a body of cases where we have successfully been able to detain terrorist offenders and then we can examine the legislation to see where it may need to be changed. I do not think this is a problem that will go away in 10 years, but the committee felt that that was very necessary.

I want to make some broader comments in relation to the conduct of the committee's inquiry, which is of course relevant to the legislation before the House. It is extraordinarily important that the PJCIS is a bipartisan committee. Each and every day, we are dealing with legislation that goes to the most fundamental aspects of the safety and security of Australians. It is so important and, to date, the composition and membership of the committee has supported that endeavour of bipartisanship. But in the process of this review, there has been some unfortunate conduct from the shadow Attorney-General of leaking information from the committee and speaking to the media inappropriately. I think the shadow Attorney-General has conceded that he regrets that conduct and I would hope that in future, noting that he does regret the way he has acted in some parts of this review, we can get assurances from him that he will live up to the standards of the other members of the Labor Party who sit on that committee. In the conduct of this review, he did not live up to those high standards. That is a very important point, that as a committee we are together as a parliament. We are not there as partisan warriors for one side or another. We are not there with a blind hatred or a single-minded focus on trying to destroy our political opponents. We are there to review legislation that will keep Australians as safe as possible. I think this legislation does that. I am very pleased to be supporting this legislation.

Another aspect of the review which took a lot of the committee's attention was around those who questioned the need for a post-sentence detention regime because we have control orders, which are where our security agencies, in effect, monitor and keep a very close eye on particular individuals and groups. The public evidence from the Australian Federal Police and other agencies is that control orders are extraordinarily expensive both from a human resource perspective and from a financial perspective. Many, many millions of dollars are required to keep an eye on a high-risk terrorist offender in the community. Even when a control order is in place, and with all that cost and all those resources, we cannot provide the community with a 100 per cent assurance of protection. The greatest and saddest recent example is that of the terrorist offender in France who slit the throat of a priest on the altar, killing that priest and injuring two other people. That person was subject to a French version of a control order. He was wearing an electronic bracelet on his ankle. He was being monitored by the police. But being monitored did not prevent him from being able to detain, kidnap and, ultimately, commit a ghastly terrorist act.

This post-sentence detention regime is the best way that this parliament can say with absolute certainty, 'That individual is so dangerous we are going to keep them detained, and we can provide the community with a 100 per cent assurance that that person will not be able to harm anybody for as long as they are detained.' That also means that instead of our security agencies spending vast amounts of resources, human resources and financial resources, in monitoring those individuals and groups, they can put those resources into other important endeavours to keep our society safe. It is not just a matter of throwing more money at it, as was the evidence from the public hearings. The skill, intelligence and human resources within the AFP are stretched and if we did not act to ensure that these types of terrorist offenders are detained, then we would not be doing them a service and we would ultimately be jeopardising the safety of our society.

On the last sitting day of the year this should be a very proud day for everybody in this parliament, perhaps minus the Greens. I want to commend the opposition for supporting this legislation. This is an area where it is so important that we maintain bipartisanship, and we have done it today. This is very hard, novel legislation and the fact that we have been able to do it and do it in a timely fashion, as requested by our security agencies, who said, 'We want this as soon as possible,' is a great testament to the parliament. But, most of all, I want to thank the Attorney-General and the Prime Minister for giving the committee their imprimatur for this legislation. It is hard but they have delivered it today. I look forward to the implementation working group over coming months developing the framework that is going to make sure that this is not just good legislation in principle, not just good legislation that sits on a shelf somewhere, but legislation that can be used practically by our security agencies to keep the worst terrorist offenders behind bars. That is the way in which we can give Australians a categorical assurance that those individuals will not do our society harm. I commend this bill to the House.

Mark Coulton (Parkes, Deputy-Speaker) Share this | Link to this | Hansard source

It being almost 1.30 pm, the debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour.