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

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

That this bill be now read a second time.

The Counter-Terrorism Legislation Amendment Bill (No. 1) marks an important step in the government's efforts to further strengthen Australia's robust national security laws and counterterrorism framework. It is broadly the same as the bill of the same title introduced into the Senate in November of last year—with the important additions of further safeguards recommended by the Parliamentary Joint Committee on Intelligence and Security.

Australians face the most significant threat from terrorism in our nation's history. The Australian government continues to work diligently towards combatting the threat we face from terror groups and individuals, both overseas and at home. Sadly, by any measure, the threat that we face has only risen.

Around 110 Australians are currently fighting or engaged with terrorist groups in Syria and Iraq. At least 62, although probably up to 68, Australians are believed to have been killed in the conflict already—we would expect that figure to rise—while approximately 40 Australians have returned to Australia after travelling to Syria or Iraq and joining groups involved in the conflict. Some of these returnees remain a significant security concern.

There are around 200 people in Australia being investigated for providing support to individuals and groups in Syria or Iraq, including through funding and facilitation, or seeking to travel.

The national terrorism threat level for Australia is 'probable'. This means there is credible intelligence that indicates that individuals or groups have developed both the intent and capability to conduct a terrorist attack in Australia. Since 12 September 2014, when the national terrorism threat level was raised, 55 people have been charged as a result of 24 counter-terrorism operations around Australia. That is over half of all terrorism-related charges since 2001.

These numbers highlight the significance of the threat we face.

One of Australia's greatest strengths is our harmonious, diverse, multicultural, multi-faith community. This must be preserved and protected.

The measures introduced in this bill reflect operational learnings from recent counter-terrorism investigations. The bill also includes a number of recommendations from the Council of Australian Governments review of counter-terrorism legislation.

The bill seeks to maintain a careful balance between enhancing our law enforcement capabilities and protecting individual rights. To this end, the bill reflects the government's acceptance of the recommendations of the Parliamentary Joint Committee on Intelligence and Security on the 2015 bill. The provisions complement the earlier tranches of counter-terrorism measures introduced by this government since 2014.

The bill strengthens Australia's already robust counter-terrorism laws in several key areas.

Schedule 2—Control orders for young persons

First of all, the bill amends the existing control order scheme to provide that a control order may be issued against a young person from the age of 14 years.

Recent experience, including law enforcement operations, has shown that young persons can pose a significant risk to national security through their involvement in planning, supporting and executing terrorist acts.

Regrettably, recent events demonstrate the necessity of our law enforcement agencies being able to access the full suite of measures in relation to young persons.

Australia's national security legislation must provide law enforcement with appropriate tools to ensure the safety of the public and to ensure they are well equipped to respond to, and prevent, terrorist acts. This is the case even where the threats are posed by people under the age of 18.

A control order would only be issued against a person aged under 18 in the rare circumstances that it was required to:

The bill retains the existing safeguards in relation to young persons and introduces important new provisions applicable to 14- to 17-year-olds. These include:

In response to recommendation 2 of the Parliamentary Joint Committee on Intelligence and Security's advisory report, the bill includes a requirement for the Australian Federal Police to advise all people subject to a control order of their right to obtain legal advice and legal representation. This provision will improve the safeguards not only for young people, as recommended by the committee, but for all people who are subject to control orders. Importantly, the bill also provides that, if a young person to which this section applies is not legally represented, the court will appoint a legal representative for that person.

Schedules 8, 9 and 10—New monitoring powers

Schedules 8 to 10 contain amendments to Commonwealth legislation to ensure law enforcement agencies can monitor compliance with control orders.

With the increased use of the control order regime to address the risk posed by foreign fighters, these measures will ensure that we can effectively monitor compliance with the obligations, restrictions and prohibitions imposed by control orders.

The amendments will ensure investigative tools are sufficiently adapted to monitoring the risk of possible breaches of control orders. Warrants will be available for the purposes of:

These powers will only apply to individuals subject to a control order. Importantly, in response to recommendations of the Parliamentary Joint Committee on Intelligence and Security, the use of these powers will be subject to oversight from the Commonwealth Ombudsman.

Schedule 15—National security information

Schedule 15 provides a broader range of options for protecting national security information that is used in control order proceedings. With the increased tempo of counter-terrorism operations, it is sometimes necessary for our law enforcement agencies to take action earlier to protect community safety. To prevent death or serious harm, agencies may need to act before a full brief of evidence can be developed.

Consequently, those agencies will need to place a greater reliance on information from intelligence partners and sensitive sources.

The changes introduced in this bill will provide greater protection to national security information that is considered in control order proceedings. This is vital in order to maintain critical intelligence partnerships and to protect sensitive capabilities.

These provisions amend existing arrangements for the protection of sensitive information whilst balancing the rights of individuals involved. They will provide the court with a discretion to consider very sensitive national security information in support of a control order application that is not shown to the subject of the control order proceeding or their legal representative. However, the bill reflects the government's acceptance of recommendation 4 of the Parliamentary Joint Committee on Intelligence and Security on the 2015 bill, to make clear that the subject of the control order proceeding must be provided with sufficient information about the allegations against them on which the control order is based to enable effective instructions to be given in relation to those allegations.

In addition, the government has implemented recommendation 5 of the Parliamentary Joint Committee on Intelligence and Security to create a special advocate role to represent the interests of persons subject to control order proceedings where the subject and their legal representative have been excluded from hearing or seeing sensitive national security information. The special advocate provides an important safeguard in ensuring that the procedural rights of the subject of a control order proceeding are upheld.

Whilst the bill creates the architecture for a special advocate role, some time will be needed for the supporting regulations and administrative arrangements to be established for the regime to work. The government will work swiftly to ensure these arrangements are put in place as soon as possible.

Consistent with the recommendation of the committee, the provisions in the bill providing for the protection of sensitive information in control order proceedings will commence without delay. The court will be able to continue to exercise its inherent powers to appoint a special advocate on an ad hoc basis.

Schedule 11 —O ffence of advocating genocide

To address the negative impact of hate preachers, Schedule 11 introduces a new offence of advocating genocide.

The Australian government is doing everything it can to tackle the threat posed by those who justify terrorism and who radicalise and recruit people to take part in terrorism.

The Australian government has a long and deep commitment to free speech. But the community cannot allow the advocacy of terrorism or of genocide, which is the incitement to murder an entire population, not an exercise of free speech.

In the current threat environment, the use of social media by radical Islamist preachers means the speed at which persons can become radicalised and could prepare to carry out acts in response to a call to commit genocide may be accelerated.

Law enforcement agencies require tools to intervene earlier in the radicalisation process to prevent and disrupt further engagement in terrorist activity. This new offence is intended to be one of those tools.

Schedule 18

Schedule 18 implements all of the recommendations made by the Independent National Security Legislation Monitor in his report on section 35P of the ASIO Act.

These amendments will introduce new protections to section 35P by establishing two separate offence regimes, with one regime to apply to persons who came to the knowledge or into the possession of the relevant information in their capacity as an entrusted person and a separate regime for 'outsiders'.

Under these new regimes the disclosure of information made by members of the community, except those who received information in their capacity as an entrusted person, will only constitute an offence if the information will endanger the health or safety of a person or prejudice the effective conduct of a special intelligence operation.

The amendments will also establish a defence of prior publication available only to persons who did not receive the relevant information in their capacity as an entrusted person.

It is critical that ASIO continues to have the tools and capabilities, such as the use of special intelligence operations, available to them in order to effectively combat the significant terrorism and espionage threats that Australia faces.

Indeed, in making his recommendations the monitor agreed that it is appropriate to retain disclosure offences, and that the special intelligence operation scheme is both necessary and proportionate.

The government understands the importance in maintaining public awareness of, and confidence in, the activities of our security agencies. The decision to implement all of the monitor's recommendations regarding section 35P in full further demonstrates our commitment to ensuring that we are achieving the right balance between the public interest and our national security requirements.

Concluding remarks

The government is committed to ensuring that Australia's national security laws and counterterrorism framework are as robust as possible.

We have worked closely with the states and territories to ensure that Australia's counter-terrorism framework is as good as it possibly can be. Countering terrorism and violent extremism is a priority for all Australian governments. We greatly appreciate the ongoing cooperation of the states and territories in this endeavour.

Consistent with the legislative reforms made in 2014 and early 2015, the government continues to monitor the adequacy of our legislation, and we will develop further necessary legislative amendments.

We will continue to take on board operational learnings and ensure that Australia's counter-terrorism framework adapts to the constantly changing threat environment.

We are committed to fulfilling the most important responsibility that the federal government has—protecting Australia, its people and its interests. We will continue to do so while instilling confidence that our national security and counter-terrorism laws will be exercised in a just and accountable way, consistent with the values of our free and open society.

This bill demonstrates the Australian Government's determination to proactively and effectively address this and to proactively and effectively address the evolving threats to our national security.

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