Wednesday, 29 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
I move government amendment (33):
(33) Schedule 1, item 109, page 76 (after line 17), after subsection 106.5(4), insert:
(4A) Section 104.23, as amended by Schedule 1 to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to variations of control orders, where the relevant interim control order is requested after that commencement.
This is an application provision. It provides that the amendments to section 104.23 of the Criminal Code, which authorise the Australian Federal Police commissioner to seek a variation of a control order on any of the grounds for requesting a control order, include the new foreign-fighting and terrorism conviction grounds. The effect of the application provision is to ensure that the ability to vary a control order applies only to a control order requested after the bill comes into operation.
Question agreed to.
by leave—I move government amendments (34) to (39) together:
(34) Schedule 1, item 110, page 77 (line 23) to page 78 (line 14), omit the definition of engage in a hostile activity in subsection 117.1(1), substitute:
engage in a hostile activity: a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):
(a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);
(b) the engagement, by that or any other person, in action that:
(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and
(ii) if engaged in in Australia, would constitute a serious offence;
(c) intimidating the public or a section of the public of that or any other foreign country;
(d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);
(e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).
(35) Schedule 1, item 110, page 78 (lines 15 and 16), omit the definition of engagein subverting society in subsection 117.1(1).
(36) Schedule 1, item 110, page 78 (after line 31), after the definition of recruit in subsection 117.1(1), insert:
serious offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for 2 years or more.
(37) Schedule 1, item 110, page 79 (lines 8 and 9), omit paragraph 117.1(2)(b), substitute:
(b) the engagement, in Australia or a foreign country allied or associated with Australia, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3); or
(38) Schedule 1, item 110, page 79 (line 12), after "relations", insert "(within the meaning of section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004)".
(39) Schedule 1, item 110, page 79 (line 13) to page 80 (line 7), omit subsections 117.1(3) and (4).
Amendments (34) to (39) implement recommendations 15 and 16 of the Parliamentary Joint Committee on Intelligence and Security by replacing the phrase 'engages in subverting society,' which is one of the elements of the definition of 'engage in hostile activity,' with a cross-reference to the conduct contained in the definition of 'terrorist act' in section 100.1 of the Criminal Code. These amendments also constrain that element to conduct that would be a serious offence—one that carries at least two years imprisonment if undertaken within Australia. The two-year threshold is consistent with the definition of 'serious offence' in section 3C of the Crimes Act.
Question agreed to.
I just want to seek the guidance of the chair. The Australian Greens also have amendments in this particular area. We have a series of amendments, but the first amendment that we would be moving would be to oppose the section of the act which creates the declared areas zone. I ask leave of the committee to that extent, to move the Australian Greens amendment first so that we can be clear on whether or not the committee is willing to support that amendment. It would just make sense logically to deal with that first and then move to the opposition's amendments.
The CHAIRMAN: I think that does make sense, but I have been following the order on the running sheet. I will just get some guidance from Senator Collins on whether she objects to that and also from the minister. There does not seem to be any objection. Senator Wright, if you could now move amendment (16).
I would like to speak that briefly, but I do appreciate indulgence of the committee on this. Thank you.
Senator Wright, could I ask some clarification, please? I think your amendments (16) and (17) are related, and I think amendments (18) and (19) might be as well. Are you just moving (16)? Or should we deal with all of your amendments on declared areas at the same time?
I am really at the indulgence of the committee. I am not wishing to gazump the debate, so I would be interested to know if Senator Collins would be prepared to agree to that. I would be happy to do that because it might be more efficient. Otherwise, we will just move the aspects of our amendments which would seek to knock out the no-go zones.
The CHAIRMAN: If I could just intervene. Amendments (16) and (17) have to be put separately, anyway. I am happy if the debate goes across the three of them, if it is the will of the committee at the time. Maybe if you just move (16) and, if people want to talk to the three amendments, that will be fine.
I move Australian Greens number (16) on sheet 7954:
(16) Schedule 1, item 110, page 82 (line 1) to page 85 (line 10), sections 119.2 and 119.3 to be opposed.
On moving item (16), being Australian Greens amendment to remove the declared areas offence in the bill, the bill seeks to create a new offence of entering or remaining in a declared area, which would be punishable by 10 years imprisonment, so it is a significant offence. Under the provision, if it were to be passed, areas in a foreign country can be declared by the Minister for Foreign Affairs, by way of legislative instrument, if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country. Declarations can last for a maximum of three years.
There is a narrow legitimate purpose defence available for those charged with the substantive offence. The Australian Greens amendment (16) would remove the proposed no-go-zone offence from the bill because it is considered that this offence will unnecessarily and disproportionately restrict freedom of movement in Australia. Certainly views have been expressed and the Greens are of the view that this is potentially an extremely counterproductive outcome. It risks entrenching feelings of isolation and alienation in the very communities in Australia that we rely upon to assist in this fight against terrorism and in order to build social cohesion and inclusion in the Australian community because this offence, if it stays, will criminalise what is perfectly legitimate travel. It will make it punishable by 10 years imprisonment for a person to travel to a declared area and because there is no fault element required, it has the practical—if not the technical—effect of reversing the onus of proof. It would require anyone who is charged with the offence after having travelled to a declared area to bring their own evidence to demonstrate that their travel was not only to fall within a narrow list of legitimate purposes but also that that travel was solely for that reason. For instance, an elderly couple who are travelling to a declared area to visit a dying friend or a young person who is travelling to a declared area to study, or a business person who remained in an area, after it had become a declared area, to conclude a business deal, there is no need to establish any criminal intent. Those people would be subject to potential prosecution upon returning to Australia. Even where there is a legitimate purpose provided for in the offence such as a journalist, they remain liable to be charged with the offence, brought before a criminal court and required to bring evidence to prove that journalism was the sole reason for their travel to escape conviction.
The legal experts we have been paying attention to have stated that this is yet one more example of a completely unnecessary new offence. The expert advice in this area which we would be referring to is advice from the Law Council of Australia, the Gilbert and Tobin Centre for Public Law, the Australian Human Rights Commission, Professor Ben Saul, Human Rights Watch and the Human Rights Law Centre. The Parliamentary Joint Committee for Human Rights has also expressed concerns about the potential incompatibility of this provision with human rights in Australia.
Australia's criminal laws, which we asked the chamber to consider, already cover well and truly circumstances where a person leaves Australia in order to participate in hostile or terrorist activities overseas, as well as circumstances where a person encourages or urges another person to engage in such activities or a person who financially or otherwise supports terrorist or criminal organisations. That is the reason that the Australian Greens are moving to have this offence removed from the bill. I have some questions to which I really would appreciate the Attorney-General's response. The first I will put to the Attorney-General in relation to the offence as it stands in the bill at this stage is why the government has chosen to frame this offence in such a way that departs so significantly from the type of established criminal law and rule of law principles that the Attorney has a tradition of vigorously defending.
Thank you for the compliment, Senator Wright, but I do not for a moment share your view that this is a departure from traditional rule of law principles. This is a new offence which is being created. I will wait until you have asked whatever questions you want to ask me before speaking at length about the desirability of the provision, but this is no departure from established rule of law principles merely to create a new criminal offence, a very narrow one, subject to the ordinary defences which are provided for in the generic provisions of the Commonwealth Criminal Code, transparent on the face of the statute with no reverse of the onus of proof, no reduction in the standard of proof and beyond the generic defences a series of specific defences which in the government's view deal with legitimate reasons for travel to declared areas. There is nothing unusual about this. How you think merely because it is a newly expressed offence that that is a departure from the rule of law escapes me.
I am happy to elaborate on why the Australian Greens and certainly other legal commentators are of the view that it is a significant departure from established principles and that is the offence has been drafted in such a way as to have the same effect, without being semantic, as a reversal of the onus of proof because, while the prosecution has to prove that a person was in the declared area, that is all they have to prove initially and the defendant is then guilty of the offence unless the defendant brings evidence to demonstrate that the travel was solely for one of the listed legitimate purposes—if you want to respond to that first, Attorney-General.
I am happy to, Senator Wright. This is a red –herring argument which has been raised many times. There is no reversal of the onus of proof here at all. The way the criminal law works is that an offence—let us assume we are talking about statutory offences—is defined and the prosecution bears the onus of proving every element of that offence beyond reasonable doubt. Then defences are provided for. If an accused person seeks to rely upon a defence then they have to bring forward evidence to discharge what, as you would know as a lawyer, Senator Wright, is known as 'the evidential onus', to show that there is sufficient material upon which that defence may be invoked. That is not a reversal of the onus of proof. It is merely to say that, if a criminal defendant seeks to rely upon a defence, he or she has to bring sufficient facts before the court to demonstrate the availability of that defence. That has never been regarded as a reversal of the onus of proof.
Given the way the committee is moving, I think it might be opportune for Labor to indicate its position in relation to the declared areas matter, rather than waiting until I formally move my amendments, in response to these amendments moved by Senator Wright, because we have now moved through the first of Labor's main concerns, which were those in relation to the issues that we dealt with around advocating terrorism. The second main area where we had concerns arising out of the intelligence committee's consideration was this declared area provision. The third major area in which we had concerns was that around the provisions with respect to welfare measures. I should indicate that we appreciate the government's cooperation in relation to those third measures, and we will come to those subsequently if we have time in the debate, but if we do not have sufficient time I want to indicate that we have appreciated the government's cooperation in accepting our concerns there. We would, however, like them to consider what we are now addressing in our amendments regarding declared areas. I will come to those in a moment.
As to these Greens amendments which would remove the entirety of the declared areas offence, we believe that the approach that we have circulated in revised schedule 7601 renders it a workable and useful tool for our agencies. So we obviously accept, with the intelligence committee's advice, that such a tool is warranted. Our concern about protecting the rights of the accused is what we will be dealing with in our amendment.
As we know, the bill creates a new offence in relation to people who travel to areas declared by the foreign minister. A number of members of the intelligence committee were unsatisfied with the prescription and limited range of excuses available to persons accused of travelling to or remaining in such a declared area. These committee members argued that a general exclusion should be available to those with a wholly legitimate purpose for being in a declared area. Specifically, the intelligence committee stated, at 2.387 of their report:
Committee members had different views about whether the declared area offence as currently drafted would be an effective and workable provision. Some members of the Committee questioned whether the legitimate concerns presented in evidence had been adequately addressed, particularly in relation to the evidential burden and the limited range of legitimate purposes for travel to declared areas. The Committee notes that the proposed INSLM—
the proposed security monitor—
and Parliamentary Joint Committee on Intelligence and Security reviews leading into the sunset provision will enable this to be more fully explored.
At 2.388, the committee reflected that:
Some members of the Committee believed that, given the seriousness of offences arising under this section that it is appropriate for there to be a 'wholly legitimate purposes' general provision in the legislation.
So, in accordance with these comments of the intelligence committee, Labor will be moving amendments to provide a general defence of wholly legitimate purposes for those accused of travelling to or remaining in a declared area. We do not believe that it is possible for the parliament to anticipate in advance every possible legitimate reason for a person to travel to a declared area.
Our amendment to this provision will recognise the critical role that the third arm of government, our judiciary and the criminal justice system, plays in our democracy. We think that it is entirely appropriate for the courts to determine whether a person travelling to a declared area has done so for a solely legitimate purpose. Labor believes that it is entirely appropriate and just for a judge or a jury to decide whether a person has travelled to a declared area for a sole and legitimate purpose, assuming that the police and the DPP have decided to charge that person with that offence. To expect that the parliament can, here and now, anticipate all legitimate reasons for a person to be in a declared area is a serious mistake that could potentially create a very unjust law. Our amendment, creating a general defence for a sole legitimate reason for travelling to a declared area, does not fix all of the problems with this offence, but it at least provides a more just and appropriate defence to those who may be charged, and our amendment recognises the critical role that the judiciary and our courts have in administering our criminal laws rather than trying to circumvent that role, as the government's more prescriptive approach clearly seeks to do.
I did not want to necessarily jump in ahead of the Attorney-General, if he wanted to respond, but I had some further questions for the Attorney-General, to make sense of how this would actually work in practice. As to being accused of using hypothetical examples: I think it is actually very much the role of this chamber to be saying: 'This is the law you want us to pass. How will it actually work on the ground? How will it be interpreted? What are the likely consequences, and the effects on people's lives?'
Attorney-General, you were saying that this is not a departure from traditional legal principles of criminal law. You have not acknowledged that what it does effectively do is to criminalise something that is without any intention on the part of a person. It criminalises something that would have been perfectly legitimate before the offence became law. But I am interested specifically to ask why the offence departs so significantly from the Attorney-General's Department's own guide to drafting Commonwealth offences which provides, for example, that:
The requirement for proof of fault is one of the most fundamental protections in criminal law. This reflects the premise that it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk (ie recklessness).
In this case, I am genuinely trying to understand what the fault is if you are going to criminalise what is perfectly legitimate travel. Is that the fault? Is the fault being in the declared area and staying there, or going into a declared area when in fact no malice or wrong intentions are necessary to create the offence? It is just a matter of having to prove when you come back that you had what the government considers to be a legitimate purpose. And we will go into the inadequacies in what legitimate purposes are in a minute.
That is a very good question, if I may say so, and I am happy to be able to provide you with the answer. The provision does not depart from the Attorney-General's Department's recommended guidelines. It does make clear the fault elements. There are two aspects to it. The fault element in relation to travel to or remaining in a declared area is intention, so that the prosecution must prove beyond reasonable doubt that the person intended to travel to or intended to remain in the particular locality.
The fault element in relation to the person's knowledge of whether or not the locality was a declared area is recklessness. Earlier on in the debate I read to Senator Macdonald the Criminal Code's definition of 'recklessness' for the purposes of the generic fault provisions of that statute, and you were in the chamber when I did that, so I will not waste time reading them to you again. So, that is the answer to your question. A fault element in relation to travel or remaining there is intention. The fault element in relation to awareness of whether or not that particular locality is declared is recklessness.
While I am on my feet, Senator, I might point out, particularly since you have frequently invoked the Australian Human Rights Commission in support of your position, that the Australian Human Rights Commission, in its commentary on this provision, some of which I acknowledge is critical, actually acknowledged that there was no reversal of the onus of proof. The Human Rights Commission acknowledged that the position is exactly as I have explained to you: that a person seeking to invoke one of the defences has an evidential onus to bring forward the facts before the court so that the court can be possessed of the facts constituting the defence. But in relation to all of the elements that constitute the offence, there is no reversal of the onus or proof.
I did actually say, and I made it quite clear, that it is an effective reversal of the onus of proof, not a technical one. When we consider the fault element you are relying on, the fault is travel or remaining in the geographical area. That is the fault at the heart of this offence. I would say that that is actually a serious departure from established criminal law principles, in that traditionally crimes have been actions or behaviour that have an element that is inherently negative, malicious or harmful to other people. It is actually quite unprecedented through the enactment of a provision, through the writing of a new offence, to criminalise something that on its own is perfectly legitimate. Indeed, freedom of movement is an important human right. To talk about the fault element of the travelling or remaining in an area as being within the scope of ordinary criminal law is nonsensical. There is no inherent harm or wrongful behaviour in people exercising their right to travel. There has not been previously, and the Australian Greens and many others are very concerned at the precedent this is setting.
What I am interested in following up is what will happen to a person who is already in an area when it is declared. How will they find out that they are committing a criminal offence by remaining in that area, if they are not aware that it has been declared, and are at risk of criminal punishment upon their return to Australia.
I am afraid that the law of evidence is by its nature a very technical area. So, Senator Wright, with respect it gets you nowhere to say, 'Well, Senator Brandis, you might be technically right about the law of evidence, but effectively this is a reversal of the onus of proof.' This is a technical area, and when you say 'Well, although you are technically right, effectively it is different,' you are coming very close to a Dennis Denuto like observation about it being 'the vibe'. The fact is that the law of evidence—and the principles by which courts determine where the onus of proof lies, and the distinction between the persuasive onus and the evidential onus—is a very technical area. Let us not try to mask our refusal to accept the technicality of the area by reverting to non-technical language.
Senator Wright, contrary to what you say—that this is unprecedented or unknown to the law—it is very common for our law to say that it is prohibited to go to a particular area. Let me give you a few examples. It is against the law of Australia to go to certain areas in South Australia that are used for the purposes of the Australian Defence Force. Indeed—although I am thinking of that particular example inspired by the presence behind me of the distinguished Senator Fawcett—in general it is against the law for a person to go to a military base or to attend upon a military base, without authority to do so. It is against the law, in many instances, for a person to go into Indigenous territories without appropriate permissions. It is, I think you will find, Senator Wright, against the law for people to go to certain areas of the Australian Antarctic Territories without permission. The idea that it is unknown to the law that there should be a prohibition on a person visiting a particular place is, with respect, quite erroneous. It is a perfectly commonplace form of prohibition and a prohibition of that kind has been extended in this particular case to areas declared by the Minister for Foreign Affairs as satisfying the statutory tests as being no-go zones for Australian travellers. This is essentially because those areas are areas where Australians have no place being, because they are areas under the control of terrorist armies. In a practical sense, that is the way this legislation is going to operate. There are exceptions and defences, as you have acknowledged, but I challenge utterly the suggestion that it is unusual for the law to prohibit a person visiting certain specified localities. That is just not right at all.
Attorney-General, I think you might have forgotten the question that I asked at the end of that, which was: what will happen to a person when they are already in an area when it is declared and how will they find out that they are at risk of criminal punishment upon return to Australia?
If a person is in an area when it is declared, they commit the offence by intentionally remaining there and they commit the offence if the recklessness element of having reckless disregard as to whether or not the area is a declared area is made out by the prosecution beyond reasonable doubt. The Department of Foreign Affairs and Trade will, in the event that an area were to be declared, take extensive steps to publicise that matter, including on the web and through social media.
How will a person demonstrate that his or her travel is solely for a listed legitimate purpose? And how will the prosecution rebut such a defence if it is raised? This requirement of 'solely' has been causing a great deal of concern among legal commentators.
It would not be causing a great deal of concern among legal commentators who are familiar with testing 'sole purpose'. It might cause vexation to Professor Ben Saul—Professor Saul is an international lawyer—but it would not be causing a lot of concern to practitioners and legal commentators who understand that, in many areas of the law, courts are every day seized of determining the question of purpose in determining the question of state of mind. That includes determining whether or not a person's purposes in engaging in a particular act are a sole purpose or one of a variety of purposes. This is not hard, Senator.
Let me give you an example in a practical sense of why it is necessary to have a sole purpose test if one is to invoke one of the variety of exemptions. One of the exemptions in proposed section 119.23(g) is making a bona fide visit to a family member. I imagine, Senator Wright, that you think that it should be all right for a person who makes a bona fide visit to a family member not to be caught by this prohibition. But let us say that a person would have travelled to a declared area and, in the course of making a bona fide visit to a family member, were also to facilitate the travel to, let us say, a township in northern Iraq under the control of ISIL, were also to facilitate the travel of foreign fighters to that township or were also to provide financial or other material sustenance to ISIL. Then, unless we have a sole purpose test, the ordinary law would be that as long as it was a substantial purpose, then the defence would be available. So if the person in the hypothetical case I have given were to say: 'It may well be that I travelled to this particular township in order to assist ISIL but, as it happens, my brother lives in this township and I actually did visit him and my desire to visit my brother was a bona fide desire to make a family visit.' We cannot have what I think we both acknowledge to be a legitimate exemption used as a mask or a pretext or a ruse to conceal purposes which, I am sure you would agree with me, ought not to be legitimate. But unless we have a sole purpose test, that could happen.
I suppose a different example that has been brought to my attention would be for us to perhaps imagine an elderly couple, who have been living in Australia for a long time, who return to see family, perhaps for the last time before they die. While they are there making a bona fide visit to a family member, because they are returning to an area where they have perhaps grown up, they are invited to go to a wedding of people who are not family members but who are in another town and they travel there for that. Again, I do not want to be accused of raising hypothetical examples, because these are the very live examples and fears that people have who need to take account of this legislation. My concern is that, even if in the end you say that a court will interpret this, a court will give people the benefit of the doubt and so on, the real concern here is that this restriction will have a chilling effect. Those people will not even potentially take the risk of going or will not take up an opportunity like that, of attending a wedding of a friend in a different village, which would seem to be perfectly legitimate, perfectly harmless, perfectly reasonable and perfectly understandable
The courts are very practised, as I said a moment ago, in determining state of mind, and part of that forensic process is to determine whether a purpose is a sole purpose or one of a multiplicity of purposes.
In the example you have given, it would seem to me that, if there were a trivial, incidental event that was not the sole purpose of the travel but was engaged in while the person was travelling to a declared area for the sole purpose of, in the example you have just instanced, making a bone fide family visit, that would not defeat their reliance on the defence. We can quibble at the margins. You know the old legal maxim 'de minimis non curat lex'? Trivial, incidental examples would not defeat the operation of this principle, but the principle is important: a person must be travelling solely for that legitimate purpose. Now, if while they are there they do something entirely incidental that is not the sole purpose or even a purpose of their travel, I would not think that that would defeat them.
I will come back to an operational question now, about the way the offence would operate in practice. How would areas be declared in such a way as to be responsive to the fluidity of war and conflict? For example, would a new declaration be made each time a new Syrian city or region is embroiled in conflict, or is it envisaged that a blanket declaration would be issued?
That would be a judgement for the Department of Foreign Affairs and Trade to make. Obviously, because we are talking about geography here, areas will be defined by descriptions of a location. In my view, the description of the location should be as specific as possible to give people as much guidance as possible. I take your point about the mobility of modern warfare. There is, of course, a lot of immobility in warfare as well, as we have seen in more recent wars, but, in a highly mobile environment where, for example, the front changes often, obviously that will require a judgement to be made on a case-by-case basis as to whether or not a particular locality should be added to the list.
I think we are a little bit jumping at shadows, Senator Wright. I said at the initial press conference with the Prime Minister on 5 August that I expected a provision like this would be used very sparingly. I remain of that view. It is, as you rightly say, an unusual provision. A decision, not by me but by the foreign affairs minister, to make such a declaration would be made on the best advice of the Department of Foreign Affairs and Trade and perhaps, I dare say, the Department of Defence and the description of the area would be a geographical description.
The CHAIRMAN: Senator Wright, before I give you the call, it was with the indulgence of the chamber that we moved away from the running order and I wonder if you might give an indication of what time you think we will bring this question to a close.
Thank you, Mr Chairman. That is a fair question and I was about to indicate that. I thought I would speak briefly to the consequential amendments so that I will not need to speak about those again, and then I will ask that this amendment, regarding the removal of the offence, be put to the chamber for decision. Then I imagine that Senator Collins will move her further amendment.
The CHAIRMAN: Yes, I then want to go back to that amendment.
Given that we have now, in a sense, moved in the debate to the other aspects of the amendments that the Greens will be moving, I will not need to speak to those later. I totally understand your concerns about the time. I will speak briefly about those amendments and then I will have nothing more to say on this.
I indicate that the consequential amendments that the Greens will be moving, if the first Greens' amendment is not successful, will add an element of intent to the offence—that is item 1 on sheet 7598—and to expand the definition or broaden the range of legitimate behaviour defences for this offence by expanding the range of legitimate purposes, to allow for the making of a bona fide visit to a friend or personal or business associate, to provide legal advice, or to perform a bona fide business, teaching or research obligation such as archaeology or some kind of research at an educational or teaching institution.
Finally, the Greens' amendment to deal with legitimate purposes in the way a court may interpret those is to create a provision whereby the court would ultimately have discretion—any other purpose that the court determines is legitimate in all the circumstances—which would, in the Greens' view, appropriately give the decision making about what is a serious criminal offence to the judiciary.
Certainly, the Attorney-General has reassured us that this provision would not be used very often, he envisages, and that we really need to trust that this is a sensible provision that will not be misused. Unfortunately, what we know is that, once there is a provision on the books—once legislation is there—governments come and go, attorneys-general and ministers for foreign affairs come and go, and the provision is there, able to be relied upon. Some kind of suggestion that we should just be reassured that it will not be abused is not actually satisfactory for many people because, if it is there, it can be used. That is why, ultimately, the Greens' third amendment suggests that we should allow the judiciary to be able to respond to circumstances which may not be envisaged in the other legitimate purposes that have been set out.
The CHAIRMAN: The question is that sections 119.2 and 119.3 in item 110 of schedule 1 stand as printed.
I and on behalf of Senator Collins move opposition amendment (1) on sheet 7601 revised:
(1) Schedule 1, item 110, page 82 (line 18) to page 83 (line 8), omit subsection 119.2(3), substitute:
Exception—entering or remaining for a legitimate purpose
I want to make some brief comments, not only on that amendment but also because I was away yesterday, on the broader issue of the bill.
As a general proposition, the Labor Party has taken a strongly principled and responsible approach to national security legislation. We on this side of the chamber do understand it is a fundamental responsibility of government to keep citizens safe. That is why we support appropriate resources and powers being given to our national security agencies to keep Australians safe from threats at home and abroad. At the same time, Labor recognises that such powers must be accompanied by the appropriate safeguards, by oversight of the security agencies. This is to ensure that the rights and liberties of citizens are not infringed.
Senator Collins has said our bipartisan assistance to the government on matters of national security is never a blank cheque. That is why the opposition sought significant changes to this bill. Labor worked tenaciously, as Senator Collins has outlined, to improve this bill. We sought to ensure that it assists our agencies in addressing risks posed by foreign fighters and we have insisted on necessary safeguards for fundamental democratic freedoms.
The government's original bill went to the Parliamentary Joint Committee on Intelligence and Security, where members and senators from the Labor Party, and our parliamentary colleagues, closely scrutinised the bill and tested the case for each new measure.
I would make this point that the experience of Labor senators and members who were involved in the scrutiny of this bill is considerable. Three of the four members of Labor's federal parliamentary leadership team—Ms Plibersek, Senator Conroy and I—are members of this committee. We are joined by Mr Anthony Byrne who has served on this committee and its predecessor for the majority of the last decade, including three years as chair. The committee membership also includes Senator John Faulkner—and anyone who heard Senator Faulkner's contribution to the second reading debate on this bill yesterday would be left in no doubt about the experience, knowledge and insights he brings to this area. I do take this opportunity to particularly commend Senator Faulkner for his work not only on this inquiry and in the debate on this bill but also on his recent paper, 'Surveillance, intelligence and accountability'.
As a number of contributors to the debate have identified, the report of the inquiry of the PJCIS into this bill made 36 substantive recommendations. Those have resulted in substantial amendments being proposed by the government to this bill. I want to emphasise the impact of the committee's report and the resulting amendments that have been proposed as compared with the original bill. I would also like to point out that when the Attorney-General released his original response to the recommendations of the committee, stating that all of the recommendations had been accepted, closer examination found this was not the case, in some measures. For example, the committee explicitly recommend it in recommendation 14 that its functions be extended to encompass the counter-terrorism activities of the AFP. The government response, while saying the recommendation was accepted, did not rule this out. I am pleased that through the work particularly of the shadow Attorney-General, Mr Mark Dreyfus QC, amendments have now been made to give effect of this recommendation in full.
One of the areas that was the subject of concern in many submissions to the committee's inquiry and consumed a considerable amount of time in the public hearings was the proposed sunset clauses. The original bill proposed to extend the operation of the control-order regime for a further 10 years, to December 2025, preventative-detention-order regime for a further 10 years to the same month, December 2025, and to stop search-and-seizure powers relating to terrorism offences the same period. The questioning-and-detention-warranting regime under the ASIO Act was proposed to be extended for a further 10 years, to 22 July 2026.
Labor believed these provisions were unacceptable and made that clear. We are pleased that the committee agreed and unanimously recommended that all of these clauses proposed for sunset will do so—that is, will sunset during the life of the next parliament. That is a much more limited period prior to the sunset provisions coming into effect. We are also pleased that the government and the Attorney-General in particular has agreed in substance to this recommendation, with amendments proposing set dates for the sunset to take place. Further, all sunset clauses are accompanied by mandated review by the Parliamentary Joint Committee on Intelligence and Security and the Independent National Security Legislation Monitor.
We are pleased that we were able to put forward, successfully, that these sunset provisions are accompanied by mandatory reviews ahead of their expiry. As was noted in a number of submissions to the committee and in evidence, the whole purpose of sunsetting provisions is undermined if appropriate reviews are not conducted. In relation to the Independent National Security Legislation Monitor I note that earlier this year the government claimed this oversight position just added red tape and sought to repeal the legislation establishing the position. I welcome the government's change of heart and I would ask—if it has not already been indicated—if the Attorney-General has an indication as to the time frame for the filling of that position, which has been vacant since April.
Labor has also improved human-rights protections in the bill's provision in relation to the use of overseas evidence in terrorism prosecution in Australian courts. We sought amendments to clarify that torture can never be accepted under our law and are pleased that the joint committee recommendations dealt with this and other matters in relation to foreign evidence.
I now wish to turn to the defences in relation to the 'declared areas offence', which is the subject of the amendment that I have now moved on behalf the opposition. Labor recognises the policy reason behind the declared areas offence. However, we believe we need to ensure that Australians are not being prosecuted for these offences when they are in declared areas for an entirely legitimate purpose. What is intended by this offence is to capture nefarious purposes, which have been the subject of discussion not only in this chamber but also in the context of the committee inquiry.
You cannot identify in legislation every possible legitimate or non-nefarious reason that a person might have for travelling to a particular place in the world. Accordingly, it is our view that this legislation needs to include a general defence or exception for cases where a person enters or remains in a declared area for a legitimate purpose.
The parliamentary joint committee noted:
… the Committee accepts that there are likely to be some legitimate reasons for travel to an area that are not covered in the proposed grounds of defence listed in subclause 119.2(3) of the Bill. It may be inconsistent, for example, for persons to be allowed to travel to a declared area for a social visit to a family member, while prohibiting travel to a declared area to visit a close friend who is dying. The Committee supports the inclusion in the Bill of a provision to allow additional legitimate purposes to be prescribed by regulation if needed. The Committee encourages the Attorney-General’s Department to review the evidence provided by participants to this inquiry to identify legitimate purposes that could be added to the regulations in this manner, without reducing the deterrent effect of the offence.
Further, the committee stated in its report:
Committee members had different views about whether the declared area offence as currently drafted would be an effective and workable provision. Some members of the Committee questioned whether the legitimate concerns presented in evidence had been adequately addressed, particularly in relation to the evidential burden and the limited range—
the very limited range—
of legitimate purposes for travel to declared areas.
The committee went on to state:
Some members of the Committee believed that, given the seriousness of offences arising under this section that it is appropriate for there to be a ‘wholly legitimate purposes’ general provision in the legislation.
This is the subject of the amendment I have now moved on behalf of the opposition. I believe—Labor believes—that courts should have the discretion to determine the appropriateness of a person's defence that they were in a declared area for a wholly legitimate purpose. That is not a special job we are asking the courts to do. Judges and courts are appropriately placed to hear evidence and make decisions—and make such decisions responsibly. It is not a sensible way to proceed to have parliament seek to set out the factual circumstance of every defence to this offence. It is entirely consistent with a responsible approach to this offence—and a responsible approach to legislating—to enable the courts to have the discretion to consider factual circumstances which this parliament may not be able to contemplate.
So Labor has sought to remedy the short-comings of the defences listed by proposing amendments to widen the scope. In this amendment I wish to highlight the inclusion of some examples in our amendment, which include the provision of humanitarian aid—
The Attorney-General correctly indicates that that is in the original legislation. Other examples include working in a professional capacity as a journalist, performing an official duty of the United Nations or an agency of the United Nations, or making a bona fide visit to a family member.
This goes to a broader question—I appreciate that the Attorney-General's advice is different—which is about the roles of the legislature and the courts. Are we seriously saying that we do not trust the courts to assess the particular factual circumstance that is presented to it, and make an appropriate judgement as to whether those facts ground a legitimate basis for the defence that parliament has prescribed? I think we should give the courts that opportunity. I commend the amendment to the chamber.
Let me make a couple of preliminary observations and then deal with the Labor Party amendment. It is not correct to say that the government's acceptance of all 37 recommendations from the Parliamentary Joint Committee on Intelligence and Security was misleading. We accepted all 37 recommendations.
In relation to some of the recommendations, there was a variety of ways in which they could be given effect to, because only in a minority of cases—I think it was in some dozen cases—did the PJCIS recommend legislative amendment. Most of the changes that were recommended were administrative changes in the way in which, for example, the PJCIS works and interacts with the government.
The example that Senator Wong gave, of the recommendation that the counter-terrorism function of the Australian Federal Police should be transferred from the legislative oversight of the Joint Parliamentary Law Enforcement Committee to the Joint Parliamentary Intelligence and Security Committee, was accepted by the government. The manner in which that was given effect to depended upon soliciting the views of the Parliamentary Joint Committee on Law Enforcement, which is what I did. I spoke to the chairman of that committee, Mr Bert van Manen MP, to solicit his views about the transfer of that important responsibility from his committee to another committee. Mr van Manen was good enough to say to me that he, on behalf of the committee, was content for that to happen.
Senator Wong has come into the chamber—evidently not fully briefed on this issue; there were a number of errors in her contribution—and has claimed that somehow the government was being misleading in claiming that it had accepted a recommendation without having done so, merely because I paid the committee from whose jurisdiction a particular function was to be transferred the courtesy of inquiring of their views before giving effect to that recommendation. That is a little mendacious, I must say.
This has not been a particularly partisan debate, and it disappointed me to hear Senator Wong constantly say that the Labor Party has done this or that. The fact is that the improvements to this legislation, which the government has accepted wholly, came from a committee of the parliament, the Parliamentary Joint Committee on Intelligence and Security—on which I had the honour to serve for some years when in opposition—which always acts in a collaborative and bipartisan way. I think that if the Australian public could see its deliberations it would be proud of the way that committee acts. It is unlike the way in which virtually every other committee of this parliament acts.
The recommendations were the product of the joint effort, the joint careful thought, of Labor Party and Liberal Party and National Party members of that committee, working collaboratively as parliamentarians, working in a bipartisan fashion as patriots. It was not the work of one side of politics; it was the work of all sides of politics. So let me correct the regrettably partisan tone that Senator Wong just injected into the debate.
Dealing with the Labor Party's amendment that is before the chair, the government opposes the amendment. Let me explain why. I might point out that this is the second iteration of this amendment that we have seen today, but, nevertheless, ultimately the Labor Party, through its own internal councils and processes, has arrived at a final position after quite a lot of uncertainty during the course of the debate. The government opposes the Labor amendment for several reasons. Let me put them in the context of the purpose of this provision. The purpose of this provision, quite candidly and openly and unashamedly, is to say that there are some areas of the world—under the control of terrorist armies which are at war against their own populations, as they are in northern Iraq, which are engaged in genocide and religious persecution and subversion of legitimate governments—to which Australians should not travel. The government makes absolutely no apology for saying that there ought to be a law enabling in certain circumstances the Australian government, through the Minister for Foreign Affairs and on the advice of her department, to say that, because of the particular circumstances of a particular locality or region of the world, this is a place to which Australians should not be permitted to go, just as there are many other places to which Australians are not permitted to go by existing laws. I gave some examples to Senator Wright before. Nevertheless, the government accepts that there may be special circumstances which necessitate travel to such an area.
In the bill we set out seven particular cases where, if a person can lead evidence before a court to show that they were there solely for that purpose, then that constitutes a defence to the charge of being in a declared area. Let me take the one that I was discussing with Senator Wright before—making a bone fide visit to a family member. That, I suspect, is the exemption which would be most often availed of. We accept that if, for example, a relative of an Australian happens to live in an area somewhere in Syria or northern Iraq which may have become a centre of terrorist operations, but, nevertheless, let us say that the person had a sick relative for whom they felt a need to travel to care for, to visit that area should not be caught within this offence. There are other examples given as well.
The Labor Party seems to accept the spirit of this provision, but it wants to change the way in which it works by replacing seven specific grounds, which constitute defences to the offence of visiting a declared area, with a generic discretion which the courts would exercise, saying, 'If you travel for a reasonable purpose, then that is a defence.' There are three reasons in particular as to why that is a very bad idea. The first reason is that it is appalling statutory drafting. We are dealing here with a crime, and in particular, for the purposes of this discussion, with the defences available to a person who is charged with a crime. Senator Wright raised the issue of the importance of the rule of law before. It is, as Senator Wright well knows, one of the fundamental tenets of the rule of law that, if a person is to be exposed to a criminal liability, then the nature and extent of that criminal liability should be known as certainly as can be known and expressed as certainly as it can be expressed in the statute. To say that a person is guilty of a crime and then draft a defence that gives no guidance whatsoever as to whether or not that defence will be available to the person is a fundamental violation of that principle of the rule of law—that the grounds of criminal liability have to be expressed with as much specificity as possible. How could anyone know whether or not they are going to be in breach of the criminal law merely because there is a generic defence that says, 'If a court decides you had reasonable grounds to be there', and gives no guidance whatever as to what the reasonable grounds might be? That is all they have to go by. So, applying your own principle, Senator Wright, to which I subscribe of course, this is a very, very, very bad piece of legislative drafting and it is a shocking example, in particular in a criminal statute, of creating a liability of uncertain dimension.
The second reason the government opposes this amendment is that it actually removes the sole purpose test. Senator Collins, in her contribution before, perhaps was unaware of this, because Senator Collins did say that it was important that a person should have the defence if it could be demonstrated that they travelled to a declared area solely for one of the legitimate purposes, though she said it would need to be solely for the generic purpose, not for one of the specified purposes. Nevertheless, she did say in her contribution that the sole purpose test should apply. But, if you look at the Labor Party's amendment, the sole purpose test is gone. If the sole purpose test is gone, then the ordinary provisions of the Criminal Code apply and, as long as the purpose is one of a multiplicity of purposes, that is enough. So to give the example I gave a little earlier: if a person were to visit a declared area and one of their purposes was to make a bona fide family visit and another one of their purposes was to engage in the facilitation of terrorism, then they would be able to avail themselves of that defence. This does not work unless the sole purpose test remains and the Labor Party's amendment would remove the sole purpose test.
Lastly, the other thing that the Labor Party's amendment would remove is paragraph (h) of proposed subsection (3), which gives the minister the power to proscribe by regulation another purpose. So there is flexibility in this statute through a regulation-making power conferred on the minister to specify other purposes. So let us say, for example, that it became apparent that, in listing seven specified purposes, the government had got it wrong, that it had overlooked something that ought to be a legitimate purpose. That could be corrected by a legislative instrument under the regulation-making power in subparagraph (3)(h), but the Labor Party amendment would remove that as well.
So the Labor Party amendment fails the test of specificity—it is vague when it should be precise; it fails the test of purpose, because it abandons the sole purpose test, which is central to the capacity of this provision to operate; and it abandons the regulation-making power, so it fails the test of flexibility as well. For all of those reasons, the government opposes the Labor Party's amendment, and it looks to the good sense of the crossbenchers, excepting the Greens, of course, to do so as well.
Lastly, let me say this: this was not one of the recommendations of the Joint Parliamentary Committee on Intelligence and Security. The Joint Parliamentary Committee on Intelligence and Security supported the provision that the government seeks to enact. That was the bipartisan view of Senator Wong and Senator Faulkner and Senator Conroy and Ms Tanya Plibersek and Mr Anthony Byrne from the Labor Party. They actually endorsed the government's position. This is one respect in which the Labor Party, having changed its position here, now seeks to walk away from the bipartisan report of the Joint Parliamentary Committee on Intelligence and Security. If this provision were to be passed for the various reasons I have expressed, it would defeat the entire purpose of an important reform to the criminal law, which the PJCIS has unanimously, in a bipartisan report, endorsed.
I have wrestled with this bill, and the discomfort I have felt has been exacerbated by the haste with which this debate has been forced to a conclusion. I have followed and appreciated the contributions of all, particularly my colleague Senator Leyonhjelm, who spoke eloquently in a 'shining' contribution to the debate yesterday. I appreciate the briefings from government and meetings with the Attorney-General on this bill, and I have put to him some of the arguments I am putting forward now—and they are serious.
I recall an old Peanuts cartoon, where Charlie Brown shoots an arrow into a fence and then proceeds to paint circles around the arrow to show that he had hit the target. I am concerned that the target of this legislation is already known in the form of those people under surveillance who may have come back from the ISIS conflict already. That target may well be justified but I am very concerned about laws drafted to target specific individuals. I am also concerned that censoring and incarcerating people who are preaching hatred may not suppress but, in fact, fan the fire of fanaticism. Putting radical preachers, activists and would-be terrorists in prison gives them a captive audience, so to speak. Radical preaching that promotes bombings and beheadings and other gross acts of violence against innocent Australian citizens—men, women, children, the elderly—is utterly abhorrent and contrary to not only Australian values but Australian citizenship and eligibility for residency.
I trust that my colleagues in this place will be as watchful and vigilant in these matters as those law enforcement officials who protect us to ensure recently enacted powers and the powers proposed in this bill are not exceeded. Having stated those reservations and given strong cautions to those who might use these laws in ham-fisted or wrongful ways, I say that Family First will be supporting this bill.
In the two minutes remaining for debate on this bill, I want to say that this is exactly why—I welcome Senator Day's contribution; he has not spoken before in the committee stage—it is a farce to have an agreement to push this significant counterterrorism law through this parliament by 12.30. There are still important, significant, unexplained and unexplored provisions like stopping welfare, suspension of travel documents, and cancellation and suspension of visas that have not even been touched on in the debate in this chamber today.
I do not think anyone can suggest that there has been any filibustering going on with this. Legitimate concerns and queries have been raised. Not many members of the Senate even had an opportunity to engage in the debate on this. Legitimate questions have been put. Often clear answers have not been given, and those answers have had to be explored. And here we are with the gagging of the debate, and the amendments from various parties and the opposition and the government will be put through as a job lot without any ability to talk to them, to explain them, to understand them. And this is going to be the national security law that Australia will be saddled with after this finishes.
The CHAIRMAN: Order! The time allocated for consideration of this bill has expired. The question is that opposition amendment (1) on sheet 7601 revised be agreed to.
Senators, I now intend to deal with the rest of the outstanding amendments in this way: I will first deal with government amendments and then I will deal with Greens amendments. The government amendments will be put in two questions, as one question is opposing a schedule. And then we will deal with all of the amendments. The first question to deal with the remaining government amendments is: that part 2 of schedule 2 stand as printed.
The CHAIRMAN: The question now is that the remaining government amendments on sheet ZA358 be agreed to.
Question agreed to.
The CHAIRMAN: That concludes the outstanding government amendments. We will now move to Australian Greens amendments. They will also be put in two questions. The first question is that item 133 of schedule 1 and schedule 2, 5 and 6 stand as printed.
Question agreed to.
The CHAIRMAN: The question to deal with the remainder of the Greens amendments is that amendments numbers (1) to (3) and (20) to (24) on sheet 7594, and amendments (1) to (3) on sheet 7598, and amendments (1) to (8) on sheet 7599 be agreed to.