House debates

Thursday, 30 October 2014


Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; Second Reading

10:48 am

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

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 amends several acts and provides a number of important measures that will enhance the capability of Australia's law enforcement, intelligence and border protection agencies to protect Australian communities from the threat posed by returning foreign fighters and those individuals within Australia supporting foreign conflicts.

The Attorney-General has commented about the nature of the security threats that we all face and, therefore, the necessity of this legislation. The risk posed by returning foreign fighters is one of the most significant threats to Australia's national security in recent years.

The bill has had the benefit of being reviewed by the Parliamentary Joint Committee on Intelligence and Security, under the chairmanship of Mr Dan Tehan, the member for Wannon. The government supports all 37 of the committee's recommendations and we thank the committee for its detailed consideration of this bill. Amendments were made to the bill in the Senate to implement these recommendations. These amendments improve the clarity of certain provisions in the bill and ensure the powers provided for in the bill are subject to appropriate review.

Against this background, the bill enhances the capability of our security agencies and strengthens Australia's already robust counterterrorism laws in several key areas. Measures in the bill will improve this regime by clarifying what is meant by 'advocating a terrorist act' for the purposes of listing terrorist organisations. This updated definition will cover circumstances where an organisation directly or indirectly promotes or encourages the doing of a terrorist act. Amending the terrorist organisation training offences will also enable prosecutions in circumstances where there are no formally defined teaching and learning roles in a training session.

The bill will provide for the continuation and enhancement of a number of key counterterrorism measures, including control orders, preventative detention orders, police stop, search and seizure powers, and ASIO questioning and detention powers so that these powers will continue to be available to relevant authorities. This bill will see them extended until two years after the anniversary of the 2013 federal election—7 September 2018. The National Security Legislation Monitor will complete a review of these offences by 7 September 2017 and the Parliamentary Joint Committee on Intelligence and Security will conduct a review by 7 March 2018.

Enhancing the capacity of law enforcement and security agencies to monitor and investigate individuals of security concern is essential to combat the foreign fighter threat. A delayed notification search warrant scheme will allow the AFP to covertly enter and search premises without the knowledge of the occupier of the premises, and then provide notification at a later date. By delaying notification of the execution of the warrant, the AFP will have the significant tactical advantage of allowing an investigation to remain confidential. Extensive safeguards will ensure that the bill balances the legitimate interests of the Commonwealth in preventing serious terrorism offences with the need to protect important human rights.

Lowering the threshold for arrest without warrant for terrorism offences

The bill is amending the arrest threshold for foreign incursion and terrorism offences to allow the police to arrest individuals on reasonable suspicion, rather than reasonable belief. Amending the threshold in this way will enable police to take rapid action to prevent individuals boarding a plane to travel overseas in circumstances where there may not be sufficient time to gather evidence to achieve the current threshold of reasonable belief. This will enable law enforcement agencies to disrupt terrorist activity at an earlier stage.

Improving the collection and admissibility of evidence collected overseas

The successful prosecution of terrorism-related offences often relies on evidence obtained from outside Australia, where the majority of the alleged offending often occurs. The amendments to the Foreign Evidence Act 1994 will provide Australian judicial officers greater discretion in deciding whether to admit foreign material in terrorism-related proceedings, while still providing the appropriate judicial protection of the rights of the defendant. That is, judicial officers will consider the evidentiary value of the foreign material and whether the admission of the material would have a significant adverse impact on the right of the defendant to a fair trial.

New ' advocating terrorism ' offence

The bill also introduces a new offence of 'advocating terrorism'. Currently an organisation can be listed as a terrorist organisation if it directly or indirectly counsels or urges the doing of a terrorist act, directly or indirectly provides instruction on the doing of a terrorist act, or directly praises the doing of a terrorist act. However, there is a current gap in the law around individuals promoting terrorism. To address this issue, a person will commit an offence if they intentionally counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorism offence. The offence carries a maximum penalty of five years imprisonment.

New 'declared area' offence

The bill creates a new offence of entering a declared area overseas where terrorist organisations are active. This will enable law enforcement agencies to bring to justice those Australians who have committed serious offences, including associating with, and fighting for, terrorist organisations overseas. However, it would not prevent a person from travelling overseas, including to a declared area, for defined legitimate purposes.

Expand existing Customs' detention powers

The bill will allow Customs officers to detain a person where the officer has reasonable grounds to suspect that the person is intending to commit a Commonwealth offence, or is a threat to national security or the security of a foreign country. Once detained by a Customs officer, the individual will be made available to the appropriate law enforcement agency as soon as practicable. These amendments play a crucial role in Australia's defence against foreign fighters, as they prevent individuals from travelling outside Australia where their intention is to commit acts of violence.

Expand the collection and use of personal identifiers of citizens and non-citizens both arriving and departing from Australia

Currently, the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service are only aware that a person is intending to depart Australia when the traveller presents for check-in and boarding. This provides a short time frame to assess any potential alerts or risks. Amendments in the bill will expand the existing Advance Passenger Processing system, requiring airlines and maritime vessels to report on persons who are expected to be on a departing flight or voyage.

The bill also includes measures which will allow the Department of Immigration and Border Protection to collect, access, use and disclose personal identifiers for purposes of identification of persons who may be a security concern to Australia or a foreign country. These amendments will allow for an authorised system, such as eGate, to perform accurate biometric identification almost instantaneously, and will contribute to strengthening Australia's borders.

Enable ASIO to recommend visa cancellation of a person who is offshore, who ASIO suspects might be a risk to security.

The bill will enable the Minister for Immigration to cancel the visa of a person who is offshore where ASIO suspects that the person might be a risk to security. This amendment will provide ASIO with 28 days to conduct further investigation and issue an assessment that the former visa holder is a direct or indirect risk to security, and recommend their visa should remain cancelled. If ASIO does not provide such an assessment within 28 days, the Minister for Immigration must revoke the visa cancellation, and the person's visa will be re-instated. This emergency visa cancellation provision will better enable the Australian government to ensure that noncitizens who might be a threat to security are not able to return to Australia whilst further ASIO investigations remain ongoing.

L imiting the means of travel for foreign fighting or support for foreign fighters

The bill will enable the Minister for Foreign Affairs to temporarily suspend a passport to prevent a person who is onshore in Australia from travelling overseas where ASIO has unresolved security concerns about them. This amendment will provide ASIO with the capacity to prevent and disrupt individuals of security concern, at short notice, from going overseas to participate unlawfully in foreign conflicts.

Welfare cancellation

Finally, the bill will amend several laws to provide for the cancellation of welfare payments for individuals of security concern. This important measure will ensure that the government does not inadvertently support individuals engaged in conduct that is considered prejudicial to Australia's national security.

The Australian government is committed to fulfilling its most important responsibility—to protect Australia, its people and its interests—and 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. This bill is an important step in the government's continuing efforts to strengthen Australia's robust national security laws to proactively and effectively address the threat posed by returning foreign fighters. I commend the bill to the House.

Leave granted for second reading debate to continue immediately.

10:58 am

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

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 is the second national security bill brought forward by the government in this parliament. The first, the National Security Legislation Amendment Bill (No. 1) 2014 was passed through the parliament on 1 October. Labor insisted on a full review of that bill by the Parliamentary Joint Committee on Intelligence and Security, and we ultimately supported the bill subject to the government implementing each of the committee's recommendations for improvements to that bill.

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill is of a very different nature to the first bill. When I spoke in the second reading debate of the first bill I said that it was comprised of largely uncontroversial, though worthy, updates and adjustments to intelligence legislation. Though in public debate these changes were necessarily caught up in concern over current events in Iraq and Syria, the reforms in the bill were not formulated to respond to those unfolding events. To the contrary, the measures in the first bill were based largely on the work that was initiated under the previous, Labor government, including an extensive inquiry by the intelligence committee that was tabled in June last year, long before the current spasm of terrorist violence. The measures in the first bill updated and adjusted the architecture of our national security organisations in a broad way so that our agencies are better able to meet demands on them well into the future. Those measures are intended to endure well after the current threats have faded.

The foreign fighters bill contains a very different set of amendments to our national security laws. I want to emphasise this point. The foreign fighters bill directly addresses current threats to Australian security, which have arisen out of present circumstances in Syria and Iraq. Where the first bill focused on the structure of our national security institutions in the long view, this bill focuses on conferring new powers and creating new criminal offences that the government believes are most relevant to addressing the immediate threat of Australians joining with terrorist groups overseas and potentially returning to Australia to carry out terrorist attacks here.

Labor offered the government its constructive bipartisan support for the first bill. We have offered constructive bipartisan support for this bill. As the Leader of the Opposition has said on many occasions now, Labor believes that our security agencies and national institutions should have the powers and resources they need to keep Australians safe from the threat of terrorism, and we will support the government in providing those powers and resources.

However, our bipartisan assistance to the government on matters of national security is never a blank cheque. Bipartisanship on national security means that we share the government's assessment of the current threat and that we will support necessary and effective measures to address the threat. As an opposition, it means that we will conduct our side of the debate and our negotiations with the government in a constructive fashion. But that does not mean we cannot be a constructive critic. It does not mean we will support every measure the government proposes. It does not mean that we will not advocate for improvements to those measures that we support, to ensure that they will be effective.

Though we share the commitment of the government to taking the necessary steps to ensure the safety of the community, our own Labor values inform the approach we take to fulfilling this commitment. It is this approach of constructive bipartisanship that we have brought to bear in the debate on this bill.

I want to be clear about this. Most of this bill is largely uncontroversial and we have supported those measures with which we agree. But we have also been critical about some aspects of this bill and have argued hard for improvements to some measures. Labor foreshadowed, during debate on the first bill, that subsequent bills may merit a different approach. This has proved to be the case with regard to the foreign fighters bill. We have sought much broader changes to the foreign fighters bill than we sought to the first bill, arising as it did out of a lengthy bipartisan process of open public inquiry begun by the Labor government.

Labor has fought hard over the past weeks to improve this bill, both by making sure that it actually assists our agencies in addressing the foreign threat and by insisting on necessary safeguards for the fundamental democratic freedoms which characterise our society and our way of life in Australia. We pursued these improvements in the committee, where Labor members and senators closely scrutinised the bill and tested the case for each new measure. In cooperation with the government members of the committee, we achieved 36 substantial recommendations for improvements to the bill.

In negotiations with the government we pursued these improvements, on which we have achieved agreement, not just on the full implementation of the committee recommendations, but also on yet further amendments to the bill. Yesterday, not satisfied with the government's position on two outstanding matters in this bill, Labor pursued improvements to the bill through amendments we moved in the Senate.

To give context to the improvements to this bill achieved by Labor it is useful to consider the scope of the bill and the original form in which the bill was first introduced into the Senate. The bill was introduced into the parliament on 24 September. It contained a broad range of measures designed to address the foreign fighter threat, and would amend more than 20 Commonwealth acts.

Much of the bill implements recommendations of the March 2013 COAG review, and the second, third and fourth reports of the former Independent National Security Legislation Monitor Bret Walker SC. These measures include a new power for interim suspension of passports, merging the Crimes (Foreign Incursions and Recruitment) Act into the Criminal Code and harmonisation with the code anti-terror provisions, changes to the law of evidence to facilitate the use of overseas evidence in prosecutions of foreign fighters, a new evidence-tampering offence, lowering the legal threshold for arrest without warrant for terrorism offences, a new power to seize bogus travel documents, providing information-sharing between AUSTRAC and the Attorney-General's Department to help combat terrorism financing, and the introduction of delayed-notification search warrants for terrorism offences.

The bill also includes other proposals which have attracted more controversy—a new offence for advocacy of terrorism and the introduction of advocacy of terrorism as a ground for proscription of a terrorist organisation, a new offence for entering and remaining in an area declared by the Minister for Foreign Affairs, and expansion of the power to collect biometric information on Australian citizens at airports.

In its original form, the bill provided for the extension, by 10 years, without review, of the sunset clauses for legislation empowering the AFP control orders due to expire in December 2015, the ASIO questioning and detention powers due to expire in July 2016, and the AFP preventative detention orders regime due to expire in December 2015. The bill was referred to the intelligence committee, where it was thoroughly scrutinised and debated. The committee sought public submissions and held several public hearings. Labor members worked tirelessly with their government counterparts to apply the level of scrutiny and oversight Australians expect their representatives to bring to bear on legislation of such consequence. That process culminated in the committee's production of a substantial report that made 36 recommendations, many of them calling for significant changes or clarifications. It is important to stress the significance of these changes and of the work done by Labor to achieve those changes.

The Australian community, well accustomed to the cut and thrust that characterises so much of our politics, should not think that just because the debate over this legislation has risen above the rancour of day-to-day political competition there has not been serious disagreement over the provisions of this bill. Though, rightly, both Labor and the government have handled these debates with care and respect, no-one should be in any doubt as to the strength at times of the disagreement amongst committee members and between the government and the opposition. The sober deliberations of the intelligence committee did not share the colour and movement—some might say, the political theatre—of question time but there should be no doubt that this was a rigorous process. There was robust debate over a number of issues. The government's case for every part of the bill was diligently tested. The committee was able to arrive at a raft of changes to the substance of the bill when this process revealed problems, gaps and weaknesses in the bill as originally presented.

That the committee was able to produce a unanimous report of such high quality and that the opposition and the government are now able to largely agree on this bill as amended is not for lack of serious debate. It is because we were able to hold serious and constructive debate that the committee came to the conclusions that it did and that the bill as amended to implement those recommendations is now able to be agreed to on a largely bipartisan basis. I note that in each and every case Labor has insisted that the committee's recommendations be accepted and necessary amendments brought forward by the government.

Extraordinarily, as I said, the bill in its original form provided for the extension by 10 years without review of the sunset clauses for legislation empowering control orders, ASIO questioning and detention powers, and preventative detention orders. Incredibly in fact there were reports in the press that the government initially wanted to remove any sunsetting arrangements for these powers and confirm them as a permanent part of our law. Senator Brandis confirmed yesterday in the Senate that this had indeed been the government's intention, an intention completely at odds with how Labor sees these powers.

Control orders, preventative detention orders and the ASIO questioning and detention powers are each extraordinary and unprecedented powers introduced in the mid 2000s in response to the September 11 attacks and the Bali and London bombings. Their extraordinary nature is reflected in the fact that the Howard government saw fit to subject those powers to review and have them lapse after 10 years of operation if no legislation was passed to extend them. I note that the then Labor opposition sought amendments limiting this sunset period to five years and those amendments were unsuccessful.

The intelligence committee after robust debate concluded that these provisions should sunset two years after the next federal election. It is right and proper that the next parliament be obliged to grapple with these powers again and to decide on its own account whether their continuation is justified. Labor was not satisfied that the case had been made for a much more lengthy extension. It is not acceptable that these extraordinary powers could operate for two decades without being properly reviewed by the parliament.

As I said earlier, this bill is aimed at a present threat. Labor will resource our agencies appropriately to deal with that threat but we will not abandon scrutiny of agency powers properly considered special or emergency measures. I consider holding the government to a four-year sunset period for far-reaching powers they had originally intended to extend for all time to be a significant achievement. It is consistent with our view that, unless evidence is shown to the contrary, these must only ever be temporary measures.

Importantly, Labor has ensured that these sunset provisions are accompanied by mandatory reviews ahead of time. As was noted in evidence given to the committee, the whole purpose of sunsetting provisions is undermined if appropriate reviews are not conducted. The committee recommended that the PJCIS review of the preventative detention orders, control orders and ASIO powers be mandated by statute. What is more, it has recommended amendment of the Independent National Security Legislation Monitor Act to mandate reviews of the powers by that agency also.

It is worth remembering that it was only due to pressure from Labor that this body was retained. Earlier in the year the Abbott government described this critical oversight office as red tape and sought to repeal it. We vocally opposed that short-sighted cut. The bipartisan support the committee expressed for the position in its report on the first bill was vindication of Labor's consistent support for proper oversight mechanisms.

I want to again say on the record that the first and so far only occupant of the office of independent monitor, Bret Walker SC, performed an invaluable public service in that role. I thank him for his hard work during his tenure as independent monitor, which ended in April this year. Conscious of his busy practice in Sydney, I am also grateful that Mr Walker made himself available to give evidence to the intelligence committee during its hearings on this bill. Speaking on the first bill I pointed out that the position of monitor had then been vacant since April, at a time of substantial change to our national security laws. The office is still vacant, and this is simply not acceptable. Labor calls on the government to appoint an appropriately credentialed and experienced independent monitor immediately. By insisting on dramatically shortened sunset periods and on statutory reviews by the independent monitor and by the committee, Labor has ensured that, no matter the attitude of the Australian government in the next parliamentary term, there will be a sober and considered review of these powers ahead of their scheduled sunset.

Labor has improved key human rights protection in the bill's provision for the use in terrorism prosecutions in Australian courts of overseas evidence. As we did in regard to the first bill, we have demanded amendments that clarify that torture can never be accepted in any way under our law. As originally presented to the parliament, this bill excluded foreign evidence obtained as a result of torture only where that torture was carried out by public officials. There is no reason why the exclusion should be constrained in this way, especially when we are particularly concerned with regions which may have no readily recognisable state authorities. The committee recommended the exclusion be expanded to cover torture by anyone. It also recommended the expansion of the definition of evidence obtained under duress to cover situations where evidence is obtained from a person by dint of threats to their person, their family, their associates or their property. In its original form, the bill only covered circumstances where a person or their family was threatened.

Though we strongly support making foreign evidence easier to use—a critical part of enabling successful prosecutions under foreign incursions offences—Labor also wants appropriate safeguards for the accused. The committee recommended that judges be obliged to warn juries about the potential unreliability of foreign evidence, an important way of making sure that trials are fair.

The foreign fighters bill includes provision for expanded collection of biometric data on Australian travellers. While the legislation expressly provides only for the collection of photographs, the bill as originally drafted and presented to the Senate allowed the government to expand this to other forms of biometric data, such as fingerprints or iris scans by mere regulation, without seeking parliamentary approval. Labor voiced its objection to this during the committee process. It is not acceptable that such an expansion of power with serious consequences for the privacy of ordinary citizens could be achieved without new legislation. Indeed, it is worrying that this aspect of the bill only became apparent during committee scrutiny, and it is a vindication of that scrutiny process that it did. We welcome the committee's recommendation to remove the ability of the government to prescribe further biometric collection by regulation. We also welcome the recommendation that the Privacy Commissioner oversee both the biometric database that is provided for in this bill and any future legislative proposal to extend it to other forms of data.

The bill makes a number of changes to Australia's existing foreign incursions legislation which were recommended by the independent monitor. Appropriately, the bill will roll the Foreign Incursions Act into the Criminal Code and update its provisions specifically to deal with the foreign fighter threat. We welcome those changes, alongside the improved ability to use foreign evidence. We hope that these improved provisions will allow for successful prosecutions of Australians who engage in lawless conduct in conflict zones abroad.

However, the bill as originally presented was drafted in a confused way. It did not simply implement the independent monitor's recommendation that the definition of engaging in hostile activities overseas be updated to include terrorist activity as currently defined under Australian law; rather it included a new concept, 'subverting society'. As was pointed out in evidence to the committee, this expanded the operation of the foreign incursions provisions well beyond what the foreign incursions provisions are meant to address. It could have seen these provisions address private disputes or petty criminal activity. Labor welcomes the committee's further recommendation that the definition of 'engage in hostile activity' be amended so that it only captures conduct which would be a serious offence under Australian law. The strange legislative language of 'subverting society' was likely to mislead or confuse the public as to what was intended. As the former independent monitor Bret Walker pointed out during the committee process, there is no need for this sort of florid language in Commonwealth statutes, which should be drafted in clear and calm terms. A loaded legislative term like 'subverting society' would cause completely unnecessary community agitation when the substance of the provision is aimed simply at terrorist conduct. Labor welcomes both the substantive change, which faithfully implements the independent monitor's recommendation, and the removal of this poor drafting technique. We are pleased to see the government agree to produce a more tightly constrained provision drafted in clear language.

Across all parts of the bill, Labor has sought improved oversight and accountability mechanisms. Labor believes that our security agencies can only continue to do their important work if Australia's political leaders are willing and able to reassure the community—and I refer here to every part of our diverse, multicultural community—that our security agencies are not only appropriately empowered, but also appropriately accountable.

Of key importance is that the committee recommended that it have the power to oversee not just the Australian intelligence community agencies but also the Australian Federal Police in its counter-terrorist capacity. Labor supports this; it is right and appropriate for the committee to be able to hold all agencies involved in counter-terrorism activities to public account. This is especially so given the extension in this bill of AFP powers, including preventative detention orders and control orders.

I want to turn now to some more controversial aspects of this bill. The new offences for entering or remaining in a declared area and for advocating terrorism have aroused some disquiet among legal experts and community groups. Neither arises out of recommendations made by the independent monitor or the COAG review processes and so they deserve close scrutiny. Labor has made it clear that it is uncomfortable with the reversal of the evidential burden which is the defining feature of the declared area offence. It is a very significant step to make it incumbent on a defendant to disprove the key element of a criminal offence attracting a serious term of imprisonment. The bill as currently drafted provides only a very confined list of exceptions to the offence which a defendant must make out to avoid conviction. That the bill provides for further exceptions to be added by regulation does not provide much comfort. Ideally, key features of an offence provision should not be defined by executive regulation.

Labor's difficulty with this drafting was recorded in the committee's report. In the Senate yesterday we moved an amendment which would have addressed that difficulty. Labor's amendment provided for a general legitimate-purposes exception which would have ensured that no innocent person is convicted under this offence. The government opposed this amendment, guaranteeing its defeat. I urge the government to reconsider its opposition to that amendment.

No matter the intransigence of the government in the Senate yesterday, though, Labor worked hard in the committee process to improve this offence. The committee made a range of recommendations tightening up what is a potentially overbroad set of provisions, including: removing the express ability of the foreign minister to declare an entire country a declared area, a prospect which has caused significant community concern; providing for declarations to be disallowable; and providing for review of each declaration by the committee within the disallowance period.

Crucially, and reflecting our concern that this too is an extraordinary and unprecedented offence, Labor has insisted that the declared areas offence be sunsetted two years after the next federal election. Again, this is a significant achievement and reflects our conviction that extraordinary measures like this offence must endure no longer than the immediate threat at which they are aimed. To make sure that this sunset is properly accompanied by a rigorous review process, we pushed successfully for statutory review of the offence, and particularly the list of exceptions, by both the committee and the independent monitor.

The bill also creates a new offence of 'advocating terrorism' and makes the advocacy of terrorism a new ground for prescription as a terrorist organisation. The bill defines 'advocacy' to include 'counselling, urging, promoting or encouraging' terrorism. Labor accepts the need to broaden the criminal law's coverage of the advocacy of terrorism beyond existing offences for incitement, but we are concerned, as are many legal experts and community groups, that this definition is drafted too broadly. We are worried in particular that the ambit of 'promote and encourage' is uncertain and might capture conduct that no free society should criminalise. This concern was noted in the committee's recommendations.

The committee asked the Attorney-General to amend either the bill or the explanatory memorandum to satisfactorily explain what is meant by these terms. In response, the government intends to amend the explanatory memorandum to explain that 'promote' means to 'advance, further or launch'; and 'encourage' means to 'inspire or stimulate by assistance or approval'. Labor is not satisfied that this resolves our concerns. We do not think that the government's explanation that 'encourage' can mean 'stimulate' or that 'promote' can mean 'launch' clarifies matters sufficiently. We are not satisfied that the ambit of these terms is certain, and the parliament should not legislate for serious criminal offences when their ambit is open to question.

In our consultation with the Australian community and especially with representatives of the Muslim community, we have heard concerns that this new offence might capture quite legitimate speech on controversial political matters or that it might capture legitimate religious discussion, debate or preaching. Labor agrees with the need for an offence addressing conduct which might cause others to engage in terrorism, but we know that there is a line to be carefully drawn. We would never want to criminalise legitimate religious conduct or to cause the Muslim community to fear that honest religious activity would be criminalised. That would be completely contrary to our purpose.

Labor proposed an amendment yesterday in the Senate which would expand the existing good faith defence in section 80.3 of the Criminal Code as it applies to the new advocacy of terrorism offence. Our amendment would make it clear that those who engage in good faith in public discussion of any genuine academic, artistic, scientific, political or religious matter will be protected from liability. Again, the government voted this amendment down in the Senate yesterday. Senator Brandis said it was unnecessary to extend the defence. His glibness belies the seriousness of this issue. I note that the Attorney-General is a declared devotee of religious freedom. In a recent speech, a version of which was published in the Bible Society's Eternity magazine, he said:

One of the fundamental freedoms of which we have heard far too little when we speak about human rights is the right to religious freedom. In fact not only is religious freedom being neglected, it has actually been the subject of open attack from those who dominate much of our political discourse, and particularly in [the ABC] and the Fairfax media. Almost invariably their targets have been the Christian faith ...

Perhaps I do not need to point out that this is a very quixotic view of the world, but for an Attorney-General of Australia it is also a deeply worrying view of the world. Religious freedom is not some political football with which to wage an imagined culture war against the ABC. If Senator Brandis is serious about religious freedom in any real sense, serious about addressing the actual concerns of religious people of good faith who feel this law might unduly target them and their community, he should do something to reassure the community that this law will not stretch too broadly. If anyone can be said to 'dominate' political discourse in this country, it must surely be a cabinet minister in the Commonwealth government. Live up to your principles, Senator Brandis. Let your actions live up to your lofty rhetoric.

As I said, Labor has approached this legislation as a responsible opposition should. We have offered the government our bipartisan support for measures to ensure our national security, but that is a constructive bipartisan support. Labor did not, and never would, offer the government a blank cheque on this or any piece of legislation. We have worked hard to improve this bill. We want to make sure that it both operates as intended and actually serves to protect our security, and also that it is subject to limits and accountability appropriate to the sort of free society that Australia is and must remain. We have worked hard in pursuit of these ends in the committee process. We have worked hard in pursuit of these ends in negotiating with the government. And when our concerns have not been satisfactorily resolved, we have moved amendments in the parliament, which we again urge the government to consider and to adopt.

11:28 am

Photo of Andrew NikolicAndrew Nikolic (Bass, Liberal Party) Share this | | Hansard source

I listened carefully to the member for Isaacs and I must say that I agreed with much of what he said. I also note that the member for Isaacs conducted an extensive review of the deliberations of the Parliamentary Joint Committee on Intelligence and Security, which he must be getting second hand because, of course, he is not a member of that committee. My recollection—and I will defer to the member for Berowra—was that what we engaged in was thoughtful, comprehensive and bipartisan discussion resulting in a unanimous report.

As a member of the Parliamentary Joint Committee on Intelligence and Security, I rise to speak in strong support of this bill, which is of great importance to Australia. What we discuss now and decide very soon will have flow-on effects well beyond our shores. In the very least, it will demonstrate both tangibly and practically to both friend and foe alike our national resolve to protect what we enjoy and value in Australia. This includes hard-won democratic freedoms, the rule of law and human rights. Ours is a fully functioning and even flourishing multicultural society which presents to the rest of the world as a model of what is both highly desirable and also socially attainable in the early 21st century. This priceless amalgam, itself somewhat rare, can also be too easily taken for granted.

Our consideration of this matter today is also unique in another way. Only occasionally does what we debate in this House mirror and complement that which has seized the world's attention. The last such occasion was perhaps the global financial crisis of 2008-09. We see that in the extent of leader representation at the 24 September meeting of the United Nations Security Council. As President Obama noted, it was only the sixth time in 70 years that the Security Council had met at such a level. And now this foreign fighters bill constitutes an important Australian domestic subset of our nation's support to, and for, the ongoing international global war on terror. As leaders, this challenge is a true test of our collective generational mettle.

It is most important that this parliament, and Australians in general, face the problem presented by brutal terrorism and that we face it squarely, no matter how unpalatable the facts. Only then can we define, as best we might, the actual full nature of the threat and give strong support to an appropriate international response to it. The unpalatable truth is this. The threat which the world now faces from Daesh is clear, present and pressing. I use the term 'Daesh' intentionally to describe the stateless and barbaric terrorists operating in Iraq and Syria. We must act urgently to stop Daesh, including its domestic and regional effects. Our need for constructive action is heightened now because the wider Western world was, frankly, late in identifying the true nature of the threat posed by the emergence of Daesh and its relatively rapid growth.

It is undoubtable that this murderous group is in the top tier of dangerous enemies that Australia has ever faced. Two factors lead me to this grim conclusion. Firstly, unlike other enemies we have confronted in the past, Daesh is not clearly definable in objective or absolute terms. Rather, this group is inchoate, or formless, in nature. This makes combating it very difficult indeed. Rather, ongoing containment, including significant force reduction, is a more practically achievable goal. It is true that Daesh does possess a range of diverse and even sophisticated military hardware and equipment, which a united global military coalition is now striking hard at every opportunity, with literally hundreds of aerial sorties already conducted. But military hardware is the lesser part of the Daesh threat. Its lifeblood is hate-filled ideology, a more powerful force than military formations that can be identified, engaged and destroyed.

Daesh's twisted ideology includes an innate and possibly long-lasting ability to draw disaffected and wayward individuals, both male and female, from around the globe to it and thereafter to potentially unleash these so-called foreign fighters back home, even more damaged, brainwashed and malevolent than when they left. Alternatively, Daesh seeks to inspire and ignite violent uprising by disaffected individuals or groups among the diaspora of its diverse members. Recent arrests in Australia and attacks in Canada, the UK and elsewhere highlight that a single individual can have strategic effect. But Daesh is made still more threatening because it eschews any prospect of negotiation with anyone. Its default option is to kill and destroy. The Prime Minister's description of Daesh as a 'death cult' is most fitting and apt. Such obdurate evil is rare in modern times. Even the Taliban leadership was open, eventually, to negotiation and compromise.

So there we have it. The Daesh dilemma, and the real danger it poses to humanity, is its ability to harvest, enrage and export malevolence and poisonous disaffection and mayhem, without regard for borders or boundaries. Daesh has been described variously as a disease or cancer. Perhaps a more fitting analogy is of a parasite feeding off and sheltering behind an unwilling host, one of the world's great and legitimate religions, which is Islam—overwhelmingly a faith of love not hate, peace not war and enlightenment not terror. Daesh is to Islam as night is to day. What is certain, however, is that this parasite is hell-bent on killing and barbarity, and this is precisely what this bill is designed to help prevent in Australia.

Notwithstanding the coalition's intention, the need for heightened vigilance by all Australians must inevitably increase immediately and be sustained over the longer term. Whether they know it or not, homeland security is now, more than ever, the business of every individual Australian, regardless of where they were born or their individual pathway to citizenship. We are all in this together, and by our collective Australian multicultural unity—one made better, richer and even more resilient by our national diversity—we must, and we will, prevail.

Let me now briefly touch on this bill's key threads. Singly and in unison these measures represent a major step on the road to making all Australians safer. I know that some have expressed the view that key elements of this bill are excessive, but, against the backdrop that I have just presented, the government rightly considers them to be both necessary and essential to protecting our way of life. These are exceptional and urgent circumstances, requiring greater unity of effort and agility in our responses. There are approximately 60 Australians fighting with Daesh on the ground in Syria and Iraq, with 100 or more acting as enablers in Australia, through funding, recruiting or other facilitation. There are those who have fought with Daesh who are now back in Australia, and other regional countries, with new skills and knowledge, and they are at the vanguard of Daesh's efforts to decentralise the mayhem and export their brutal, hate-filled ideology.

I congratulate our Prime Minister for his composed leadership in response to these matters. I congratulate the Attorney-General and the Minister for Foreign Affairs for their efforts. I thank the Leader of the Opposition for his bipartisanship. The measures in this bill fill those most pressing gaps in our current legislation, and the key features of the bill include: a series of new offences for 'advocating terrorism' and for entering, or remaining in, a 'declared secure area'; broadening the criteria and streamlining the process for listing of terrorist organisations; extending the circumstances under which a control order may be sought, and sunsetting provisions for preventative detention order and control order regimes; ensuring selected law enforcement agencies have the additional tools that they need to investigate, arrest and prosecute those supporting organisations like Daesh; limiting the means of travel for foreign fighters or support for foreign fighters; and strengthening Australia's overall border protection regime.

There are safeguards in place, and we heard the member for Isaacs talk about some of those—safeguards which were unanimous recommended by the parliament's Joint Committee on Intelligence and Security—which in my view, finds an appropriate balance between civil liberties and giving our security agencies the means they need to keep us safe.

It was a 200-page report, and had 37 carefully-considered recommendations. I thank our chair, the member for Wannon, and all 11 members of our committee for their thoughtful and bipartisan deliberations. It is important to note that law-abiding Australian citizens who enjoy the relative tolerance and freedoms of our unique civil society need not fear any of these changes, either individually or collectively.

Through this bill, the government intends to achieve or support the following six broad effects: firstly, to support and protect our sovereign national borders; secondly, to support our security agencies, including not least our Commonwealth and state police forces; thirdly, to identify at the very earliest opportunity possible domestic terrorist threats to Australia, including both individuals and terror groups or cells—and as we have seen in recent weeks and months those lone wolf attacks—those single attacks—are becoming very hard to pick up; fourthly, to prevent, to detain or to at least constrain the movement of would-be foreign fighters both from or to Australia; fifthly, to reinforce the need for heightened national vigilance by all Australians to the threat posed by relatively few destructive elements in our otherwise peace-loving communities; and, lastly, to support our nation's counter-terrorist agencies at the front line as they work in close collaboration with allies and partners. The intent of all this is to restore civil normalcy at home and abroad or, in the very least, to contain the ongoing threat posed by the Daesh menace.

Notwithstanding the grim background of this bill, including the barbarity which has been repeatedly demonstrated by Daesh and its craven acolytes globally, I will now conclude on a more positive note. Australia and the wider world are now responding practically to the urgent need to degrade the Daesh forces wherever they are—whenever they are foolish enough to concentrate in the field. This kinetic engagement is and will remain the province of military attack aircraft, of unmanned aerial vehicles and of international special forces for some time. This direct action is now being further complemented as quickly as legislatively possible by policy designed expressly to safeguard homeland Australia. Most encouragingly, all Australians—Christian and Muslim alike—are almost universally united in their complete abhorrence of Daesh and its perverted creed of wanton terror and human rights suppression.

But already in Australia we are seeing welcome signs of heightened communal vigilance and social cohesion. The fact that this is happening across different ethnic and religious communities is the strongest possible repudiation of everything for which Daesh stands. It represents a ray of hope in an otherwise grim story.

On this small positive note, I ask this House to endorse the government's domestic counter-terror initiatives with conviction and to give them widespread bipartisan support. I wholeheartedly commend this bill to the House.

11:41 am

Photo of Adam BandtAdam Bandt (Melbourne, Australian Greens) Share this | | Hansard source

To make this country safe we should be doing everything that we possibly can to ensure that members of our community—many of whom were born here and grew up here—do not think it is a good idea to do Australia harm, and that they do not think it is a good idea to travel overseas to learn how to do Australians harm. Distressingly, we have in recent times seem too many people decide, for whatever reason—influenced by whatever people, many of whom may not even live here in this country—that they dislike what is happening in this country so much that they want to do us harm, including doing innocent people harm; not just those who are engaged in combat but doing harm to innocent Australians.

And so the question that we have to grapple with is: what is the best thing to do to ensure that people in Australia feel that they have a place here and that they identify with this country, and that the last thing they would ever want to do is to do us harm? That is the national conversation that we need to have. We need to ask the hard questions about why it is that people, including those who were born and bred here, want to hurt Australia.

But that is not the conversation that we are having. And this Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 does not do the things that would be needed to be done in order to stop people deciding that they want to do us harm. This bill does not do the things that are needed to stop people becoming radicalised in the first place. What this bill does to is to remove a number of freedoms and rights that Australians have enjoyed for some time. And it is within some incredible irony that we hear the government say to us, 'Well, what the terrorists want to do, because they don't like our way of life, is to make us live differently.' Now, that is what this government is making us do, because this bill removes many of the rights and freedoms that define us in the first place. What this bill will do is affect people who have done nothing wrong and how they live their lives.

It is incredibly disappointing that it is being rushed through parliament, with only one speaker from the Labor opposition, and that it is left up to the crossbench and to the dissenting voices who do not have a voice on the two-party club that is the joint intelligence committee to raise some of these things. It is left to the crossbench here and in the other place to offer the real alternative view about how you would make Australia a more inclusive and safer place. You would expect, especially from a government that calls itself Liberal, if there were bills that were taking away peoples' rights and freedoms, that they would be subjected to the maximum scrutiny. And you would expect from an opposition that says they oppose everything that this government stands for that, in their desperation to hold to account the Prime Minister, Tony Abbott, so tightly on national security, they would not forget how to be an opposition. But that is what is happening.

I want to talk to the parliament and to the people about how this is going to affect peoples' lives. In Melbourne and around the country, given that we are now a country where a quarter of us have a connection with being born overseas, there are many people who regularly travel to other parts of the world to visit people who are close to them. Thanks in part to the refugee program that Australia has had over many years, we have people who have fled war-torn countries who have come here seeking a peaceful life for themselves and their families. Many of them are trying to bring those close to them out of harm's way to join them here. They are often unsuccessful and all that they can do to look after the people they have had to leave behind is go back to visit them. What do you do if you are here, now an Australian, and you want to go back to visit your close relative, your friend, or someone you grew up with who is now potentially in harm's way or who is in a difficult situation and needs a bit of advice? You want to go back to check they are alright, but they happen to be in one of those zones from where, because it is so bad, you fled. Under this bill, just the fact that you go back to check up on them means that you are presumed to have committed an offence because a longstanding principle of the rule of law is now reversed. You do not even have to have an intention to do anything wrong; if you just happen to have been in a particular place at a particular time, you are presumed to have committed a crime unless you can demonstrate that you had a good reason for being there.

Many of the countries that people visit do not have systems of authority or the rule of law that we would respect. In fact, that is why we have let people come here as refugees, or it might in fact be why we are supporting other governments or our own government in taking action against dictators or governments that are overstepping the mark. What do you do if you have been over to visit your grandmother, who might be illiterate in her own language let alone being able to speak English, and when you come back you are asked to prove why you went there. What do you do? Do you need a statutory declaration from your grandmother to satisfy this new provision in the legislation? Do you need to bring your grandmother over to appear in an Australian court to justify why? What if you cannot find those you went to visit? What if the authorities in the place that you are coming back from have no interest in helping you, especially given that you have been a refugee? You are now presumed to have committed an offence and you could go jail under this legislation.

If you go to another country on a religious pilgrimage, there is no exemption in this legislation for you. That does not count as a bona fide reason. You are presumed, if you have gone to a place that is now declared to be a no-go zone, to have committed an offence. As I alluded to before, one other new thing that this bill does which should be incredibly scary is that it is now an offence that does not have a mental intention element. In other words, whereas with most offences under our criminal law you have to have had an intention to do the wrong thing, or at least to be reckless in doing the wrong thing, now it does not matter. Your intention could have been purely innocent in that you just went over to visit someone, to a wedding or to see an old friend, but it does not matter. Now, just by being in a particular place, even if your intention was pure, you are presumed to have committed an offence.

What is worse is that going overseas to do something harmful to Australia is already covered by our criminal law. There are already provisions under our criminal law that would cover precisely these kinds of activities by people who are wishing to do us harm. The case has not been made for a new wide-ranging offence that cannot but catch people who have done nothing wrong. So it is going to have an effect on how people who have done nothing wrong will live their lives and choose to travel overseas. For many people in my electorate and also for many people right around this country, including those who regularly go on pilgrimage, who visit family or friends or do business with family and friends overseas, this is going to change how they live their lives.

Secondly, it is going to include an extension of control orders and preventive detention orders. The Independent National Security Legislation Monitor, that previously existed and is now in abeyance, had said that these provisions should go. They were extensive provisions that allowed governments, even when you had not committed a crime, to detain you. You can be detained in secret without any rights, even though you have done nothing wrong, just on the basis of suspicion. The Independent National Security Monitor said, 'Don't keep these provisions because they are not compatible with a society that is based on rule of law and let us look at how they have been used.' But, no, this government wants to extend them and the opposition is going along with it saying, 'Oh well, we have extended it only for a little bit less longer than the government wanted to'. So we are now having extension of provisions that allow governments in our society to detain you even when you have done nothing wrong.

Thirdly, we are going to have an expansion of biometric material that is going to be kept by authorities and, because this bill has been so rushed, there is an incredible lack of definition about what is going to be captured by this. No-one has had the time to carefully consider what this change might mean and what impact it will have on the privacy rights of all Australians leaving on international departures, including those who pose no risk to Australia's national security. It is those people who should be at the forefront of our consideration of this bill—people who have done nothing wrong. What does it do to them? This bill makes their situation worse.

There are two sets of amendments that I will be moving to try to address some of these issues, and I will come to those in the moment. But it is worth noting before this passes that the Human Rights Committee that scrutinises these bills said that these bills are incompatible with some fundamental human rights and made the point that a person could commit an offence without actually knowing the area they were in was declared, and without any intention of engaging in or supporting terrorist activity. They also said that a person accused of entering or remaining in a declared area would bear an evidential burden—that is, that they would need to provide evidence that they were in the declared area solely for a legitimate purpose, and that that would place defendants in the difficult position of having to prove a negative.

When a parliament's own Human Rights Committee says, 'There are problems with this,' we should listen and we should not rush this legislation through. This legislation deserves proper scrutiny—and more than just a cursory roll-the-arm-over debate in this place and in the other place. So I will be moving two sets of amendments and if these amendments are supported it will at least in part allow the government and Labor to avoid having to cry crocodile tears afterwards and say, 'Perhaps we pushed things through that we shouldn't have,' because now they have an opportunity to fix up at least some of the worst parts of the bill.

The first amendment we will seek to move is to allow journalists to report on what might count as recruitment activity. This is something that was raised in Herald Sun this morning. They made the point very clearly—and I agree with them—that we need more openness and honesty and discussion about what is driving people to radicalisation. We should be able to discuss it in detail, in public, so that people know what is going on and people know what tactics are being used so that they can steer their kids away from them. People deserve to be able to have a discussion about why people are being radicalised and the tactics that are being used so that we can stop it. If we stop our media from discussing what is going on under our noses, it is only going to help it continue. It is only going to keep the culture of secrecy alive. We need to shine a spotlight on these offensive recruitment tactics so that we know how to stop them, so that we can have a serious discussion about what is driving people to radicalisation in this country and how we can stop them from getting there.

Secondly, I will be moving amendments that remove or at least tone down some of the parts of the no-go zones provision, so that it will be required that someone intends to do harm before they can be convicted of having committed an offence. In other words, what we will do is remove the provisions that mean someone is guilty until proven innocent and that someone can be sent to jail just for being in the wrong place at the wrong time because they did not have a stat dec in their pocket to prove why they were there. In other words, it will be just like other aspects of the criminal law, where you have to prove that someone wanted to do something wrong—not that hard and something that everyone should agree with. So let us avoid having the crocodile tears after this bill goes through, and I hope that these amendments are supported.

11:56 am

Photo of Terri ButlerTerri Butler (Griffith, Australian Labor Party) Share this | | Hansard source

The counter-terrorism bill that seems likely to pass today will be very different to the version tabled a few weeks ago. That is because of the work that Labor has done. Labor is a very different party with very different values to the Liberals and The Nationals. The type of leadership and the type of government that you get from the coalition will always be very different to the way that Labor governs and leads. Labor leads through a commitment to social cohesion where everyone feels welcome. We promote inclusiveness, not fear. We promote fellow feeling, not division.

For an example of the differences between our parties and our approaches look no further than this government's corrosive and unnecessary attempt earlier this year to weaken hate speech laws. I am so pleased that those attempts were abandoned after a strong community backlash. So we will stand up against the Liberal and National policies that we believe harm our nation and its people. The fact is, though, that we are in opposition. I do not like that fact. I would prefer that the nation had a Labor government, because the fact is when you have a coalition government, when you have a Liberal-led government, you get Liberal policies. The only way to get a fair, outward-looking, inclusive government and leadership in this country is to vote Labor.

Having said that, we will not sideline ourselves in opposition. We will not relegate ourselves to being a party of protest. So we have acted on our concerns about this bill as originally tabled and we have fought hard to make this bill better. It is still a Liberal bill but it is better. This bill, as originally tabled, contained provisions about which any reasonable observer would have had misgivings. Australia's security laws, for example, contain some provisions that are intrusive and coercive which are presently due to stop operating in 2015 and 2016. Those laws include preventative detention orders, questioning and detention warrants, and control orders. The government originally wanted to extend those coercive powers indefinitely. Then they wanted, in the original draft of this bill, to extend those laws by 10 years. So even when they compromised it was to extend them for 10 years. Labor demanded change and we got it. The sunset provisions will now be much shorter. We have also secured through our work and our advocacy safeguards in relation to the operation of preventative detention orders.

The bill limits free speech. It provides for a new offence of advocating terrorism. The offence as drafted is broad. It seems to leave a grey area that the courts will have to interpret. Labor has fought for and secured amendments to the explanatory memorandum to deal with this problem. Labor has also fought for and won greater parliamentary oversight of the counter-terrorism activities of the Australian Federal Police. We have fought for and won a change to remove the vague and uncertain new concept 'subverting society'.

One of the most controversial aspects of this Liberal legislation is to criminalise the act of travel in and of itself to declared areas. Under the bill as originally drafted, whole countries could have been declared no-go zones. Like others, I am concerned that if you criminalise travel to a country or an area then you are encouraging suspicion and division when it comes to people connected with that area.

I have spoken before about division, about people who call Australia home being treated terribly because they wear a headscarf, about women who do not feel safe, about the woman whose arm was broken, about the man who threatened to set a woman's headscarf on fire in my electorate. We must be very careful not just of the operation of these laws but of the perception they promote and the messages these new Liberal laws send.

Labor has fought back on the declared travel provisions. We have won a change that means whole countries will not be able to be declared no-go zones. We have introduced greater and stronger oversight. We have got an expiry date for the no-go laws. And we have nipped in the bud the idea that somehow Customs just by making a regulation could start taking fingerprints and retina scans at airports. The Australian people would not have known of the government's intention to start collecting this data if it were not for Labor's work.

We have had a lot of other wins—36 recommendations in total—if you read the PCJIS report. I congratulate Labor's leadership on their work and their achievements and I say that I will always, in this challenging debate, which is challenging for all of us as lawmakers, bear the responsibility that this debate imposes as a leader on our community, reflect on and critically analyse national security laws and be a voice for social cohesion at every opportunity in our community.

12:01 pm

Photo of Andrew WilkieAndrew Wilkie (Denison, Independent) Share this | | Hansard source

Given the global security environment, I think it is fair to say that many Australians have been prepared to cut this government a bit of slack. Many Australians, it seems, accept—albeit reluctantly—the need for Australia to be part of a genuinely multinational military intervention against Islamic State in Iraq, and I think many Australians would agree that our security legislation should be constantly monitored and updated from time to time as and when required. For instance, as technology changes there is a good argument to be made that we should make our legislation technology-neutral so it does not have to be amended every day with each new gadget that is invented.

But, rather than understanding the limits that should be imposed on these sorts of changes, the government is overreaching. The government has betrayed the trust that is being put in it by the community to look after our security. The first tranche of security changes that went through this place some weeks ago was a breathtaking demonstration of how this government is betraying the trust that has been put in it by the Australian community. This bill today, the second tranche of the so-called security reforms, is another breathtaking betrayal of the trust that has been put in the government by the Australian community.

This bill today is unwarranted, it is recklessly prepared, it is being rushed through and it is not needed. There are so many problems with this bill, many of which have been very well described by my colleague the member for Melbourne. I will single out a few things that jump straight out at me—thematic concerns I have with this bill. For a start, it lowers the threshold for the arrest of individuals from a belief that a terror crime is about to be committed to a suspicion that a terror crime is about to be committed. Heavens, what's next? Are we going to have a bill next week if there is a hunch, suspicion or worry that one day someone might change their mind and dream of committing an offence?

This lowering of the threshold from belief to suspicion fundamentally undermines our approach to justice in this country. Since when is it or should it be an offence to jail someone potentially for life because we suspect them of something? It is an absurdity. There is very good reason why up until now it has been the law that someone would only be charged and only be prosecuted if there were solid grounds to believe they had committed an offence. To charge them and jail them out of suspicion is patently absurd.

And the punishment that might be awarded is completely and utterly disproportionate. If this bill becomes law—and heaven hope it does not become law—someone could be jailed for life because they are suspected of something. This is the making of a police state. It is a very alarming decay of our justice system and our approach to justice in this country that someone could be punished in such a disproportionate way. They could be jailed for life for being suspected of intending to do something wrong or even just hanging out with someone—perhaps sharing a room in their house with someone who is doing something wrong.

Photo of Eric HutchinsonEric Hutchinson (Lyons, Liberal Party) Share this | | Hansard source

That is simply not true. That is misleading the parliament.

Photo of Russell BroadbentRussell Broadbent (McMillan, Liberal Party) Share this | | Hansard source

Order! You may not like what the member for Denison has to say, but he has the right to say it in this parliament without interruption.

Photo of Andrew WilkieAndrew Wilkie (Denison, Independent) Share this | | Hansard source

A third concern is the way this bill seeks to move power from the judiciary to the executive. It does that in two fairly obvious ways. One is the fact that certain punitive measures would be taken by the minister or someone appointed by the minister. This idea that we could remove someone's entitlement to Centrelink not because they have been found to have committed an offence but because the minister or someone appointed by the minister decides someone is not worthy of receiving Centrelink benefits is just as much a punitive measure as putting someone in jail. But why on earth would you allow a punitive measure to be taken out of the hands of the judiciary and given to a minister or someone that minister appoints? It is patently unjust, unfair and should not be supported.

And the fact that, if this bill becomes law, it then will be an offence to be suspected of something, that alone removes the burden of proof that is required to find that someone is guilty of that offence. Again, it is taking power away from the judiciary, because how is the judiciary going to disagree with the authorities when all they have to do is say, 'We suspect someone'? There will be next to no burden of proof to prove that they are suspected of something. Again, it is taking the power away from the judiciary.

Also, what is this overturning of the whole presumption of guilt and innocence? Up until now, our justice system has been based, quite rightly, on a presumption of innocence. But this bill—as quite ably described by my colleague the member for Melbourne—rests on a presumption of guilt. It is up to the person that is accused to prove that they have not done something that they are suspected of doing. This is just turning our whole justice system on its head. It is crazy.

And why are we going to have these laws, anyway? The fact is, it is already a serious criminal offence to go over and to fight in a foreign war. It is already a very serious criminal offence to kill someone. It is already a serious criminal offence in Australia, because of reforms over the last decade or so, to be found to be intending to commit an act of terror. So, the case has simply not been made that we need new and additional laws and even stronger punitive measures. That is what makes me think that the government is not only overreaching, but is seeking to exploit the current security environment. And that is a terrible breach of trust, because governments must always be measured. Governments must only ever diminish the rights and the freedoms of the members of the community when there is the most compelling case to make. But at times like this, where no case has been made at all that there is a need for new, stronger laws, we find these laws coming into the parliament. This is a breach of faith with the Australian community. The government is overreaching. It is trying to exploit the security situation, and it is failing to keep the security agencies on a short leash. Because, clearly, the government has gone to the security agencies and said, 'What do you want?' And the security agencies have said, 'We want a list this long.' And the government has said, 'Not a problem, you can have the lot. We will tinker with them a little through the security community and make a few amendments, but, basically, come to us with your wish list and you can have the lot.' That is wrong, because, of course the security agencies will want the world. It is up to politicians to keep them on a short leash and to give them only what they genuinely need.

This bill is clearly unsatisfactory, and I will not support it. Part of the issue is the problems with the bill, but I am just about equally alarmed by the behaviour of the Labor Party and the opposition here. This is the second security bill in a row, in a couple of sitting weeks, where the opposition is just rolling over. Now, what on earth is the role of an opposition? Surely, it is to cast a critical eye over everything the government of the day wants to do, to point out the problems in it in the most effective way, and to oppose anything the government wants to do when the government's intentions are clearly unsatisfactory. But quite frankly, when it comes to security, the Labor Party is gutless. The Labor Party is scared stiff of being seen to be weak on national security. It is so scared stiff, when the government says 'jump' the opposition asks 'how high?'

A government member: They are being responsible.

They are not at all being responsible. A responsible opposition takes the fight up to the government and highlights problems when there are problems to be seen and to be dealt with. I think this is a case where the Labor Party is letting the Australian community down terribly, and it has been left again to the crossbench to be the opposition in this place. This is what happened a couple of weeks ago with the first security reform bill. It was left to the member for Indi, the member for Melbourne and me to oppose it and to be the opposition in this place.

I call on the Labor Party to act like an opposition. Be prepared to fight the good fight. Be prepared to make the case in the court of public opinion when a case needs to be made. Because I tell you what: in my own electorate, I have lost count of the number of people who used to call themselves Labor supporters, who are sick and tired of the Labor Party not standing for anything anymore. I have got a lot of time for the Labor Party, and the Labor Party has a proud history and has done a lot of good things for this country. But the way it is rolling over at the moment, I think, is downright appalling. No wonder the Labor Party has so much difficulty with so many of its supporters.

We do live in dangerous times. There does need to be a constant watch kept on our security agencies and on our security legislation, but dangerous times should not—must not—give a government license to do whatever it wants and to bring in the sort of security reforms that we have seen in this place coming through in this bill today, and a few weeks ago with its first tranche of legislation. There is no doubt that the government is exploiting the heightened security environment, and is taking the opportunity, quite cynically, to do whatever it wants. That is not good enough. This is a time for a government to show leadership. It is not a time for a government to exploit opportunities. It is not a time for a government to overreach in the way it is doing now. I will not support this bill. I will support the amendments by the member for Melbourne, and I wait, like the rest of Australia, to see whether the government is going to go ahead with this madness of mandatory data retention in its third tranche of reform—perhaps today or perhaps in the next sitting week. But I tell you what: the government, with the way it is going with these reforms, is completely and utterly out of step at the moment with majority public opinion. The case has not been made that we need these reforms. I make the point again: it is already a serious criminal offence to go and fight in a war in another country. It is already a serious criminal offence to plan an act of terror. It is already a serious criminal offence to kill someone. The case has not been made for the need for the sort of reforms that are likely to go through this House today, particularly with the spineless behaviour of the Labor Party.

I make the point again that I am concerned about the lowering of the threshold; the disproportionate way punishment is going to be applied; the way power is being shifted from the judiciary to the executive; the way the presumption of innocence has been turned on its head and now we live with a justice system based on a presumption of guilt; and the fact that we are going ahead with a whole raft of laws which are not needed—laws which seek to deal with problems that either can be dealt with through existing laws or problems that do not exist. I lament the fact that it is left to the crossbench to be the opposition in this place. Hopefully the Labor Party will find its voice again on these sorts of matters in the future. I see the shadow Attorney-General sitting there. Hopefully Labor will at least find its voice and its strength when it comes to the mandatory data retention reforms that will come into this place very, very soon. I can but hope.

12:15 pm

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

I thank all members for their contributions to this debate. The bill provides important measures that will enhance the capability of Australia's law enforcement, intelligence and border protection agencies to protect Australia from the threat posed by returning foreign fighters and those individuals within Australia who support foreign conflicts in general.

Make no mistake: the risk posed by returning foreign fighters is one of the most significant threats to Australia's national security in recent years. We have had a clear indication of this, and that was evidenced on 12 September when, on advice from security and intelligence agencies, the Prime Minister raised the national terrorism public alert level from medium to high. This is the first time in Australia's history that the alert has been raised to high.

The Syria and Iraq conflicts have changed the terrorist threat environment, providing a significant opportunity for Australians to travel overseas and develop the necessary capability to undertake terrorist acts. In addition to this increased capability, operational agencies are concerned that Australian foreign fighters will return further radicalised and hardened by their experiences in fighting overseas conflicts. The government has an obligation to the Australian community to prevent the creation of a group of Australians who are willing and able to engage in terrorism in Australia, to prevent the recruitment of others to travel overseas to engage in hostile activities, and to prevent revenue raising for terrorist organisations.

As I noted in my opening remarks, this bill has been the subject of extensive scrutiny by the Parliamentary Joint Committee on Intelligence and Security, which was excellently chaired by the member for Wannon and supported by his fellow committee members. I thank all members of that committee for their thorough, constructive and bipartisan approach to this task. The government supports each of the committee's recommendations and has moved amendments in the Senate to implement them. Further, in line with the committee's recommendations, the government tabled a replacement explanatory memorandum, further elaborating on the various measures in the bill.

I note the report tabled yesterday by the Parliamentary Joint Committee on Human Rights, which in part dealt with the committee's consideration on the bill. The Attorney-General responded to a number of issues raised by the committee during the debate in the Senate. Government amendments made to the bill, as well as an elaboration in the revised explanatory memorandum, also addressed a number of the matters raised by the committee. The government is steadfastly committed to protecting the human rights of all Australians who are threatened by home-grown terrorism. The measures contained in this bill are a necessary, proportionate and accountable response to that threat.

I turn now to some of the issues that have been specifically raised in the debate. I thank the opposition for their stated support for this bill and, of course, for the way that they have engaged with the government on it. I want to address some of the issues that were raised by the member for Melbourne, who stated that the bill does not prevent radicalisation. His view seemed to be overall that it takes away from people's rights. But elements of this bill are designed to prevent radicalisation. For example, extending the control order regime to allow controls to be placed on persons who have engaged in foreign fighting is designed, if passed, to disrupt radicalisation. It will do this in a number of ways, including by preventing a foreign fighter from associating with others in a recruitment group and by preventing them from doing certain things.

In addition, enhancing Australia's border security will assist in disrupting radicalisation. It will do this by ensuring recruiters, facilitators and others of security concern cannot enter or, in cases, leave Australia. But the member for Melbourne is correct if he means that this bill is not the primary means of disrupting radicalisation of vulnerable youth. The government has committed millions of dollars—in fact, $13.4 million—to design programs that prevent radicalisation and assist in the community. We believe this is the most appropriate way to deal with the victims of radicalisation.

The member for Denison echoed some of the same concerns that were raised by the member for Melbourne. Specifically, this bill does not change the criminal prosecution or court process. The courts must be satisfied to the same level that has been the case forever within our judicial system.

I would like to specifically address the allegation that the member for Denison made that somehow the government are using the deterioration in the security environment to achieve certain ends—that somehow we would be using this heightened security threat to change and reduce freedoms in Australia in a way that would be negative to the Australian population. I can assure the member and everyone in Australia that that is not the case. We think very carefully about expanding the power of the state. We think very carefully about it indeed. Most members on this side of the House—in fact, I suspect, most members in this House full stop—have not come into the parliament to expand the powers of the state unnecessarily. But I think that all Australians expect their federal government to respond as appropriate to what is a deteriorating security situation. We are doing that, and we are doing that following the advice that we get from the Australian Federal Police and other law enforcement agencies, and we are doing that following the advice we get from ASIO and other intelligence agencies. Contrary to what seems to be the case in some of the opposition to this bill, the idea that these agencies somehow want rampant powers to go about doing their job, and trampling on the rights of Australians, is just not true.

My experience with the intelligence community and certainly with the law enforcement community is that they are very judicious about what they ask government to do and are very conscious of trampling on the rights and freedoms of Australians. This bill and the prescriptions within it are based on their advice. I assure you they do take these matters into account. It is not my experience since we have come to government that these agencies somehow just want to consistently expand their powers. They are very conscious of their role and of the need to have appropriate oversight of their functions. I can assure members that the government and the agencies take that into account when formulating legislation such as this.

I thank all members who have participated in this debate. In particular, I thank my colleagues for their support for these important reforms and I thank those in the opposition who have expressed support for these important reforms. This bill has a direct impact on the ability of our law enforcement, intelligence and border protection agencies to protect the Australian public. That remains one of the most fundamental roles of the Commonwealth. It is one that we will continue to take seriously. If we believe that the security situation warrants it we will change the legislative environment to ensure the security of all Australians.

Photo of Russell BroadbentRussell Broadbent (McMillan, Liberal Party) Share this | | Hansard source

The question is that this bill be now read a second time.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the noes, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Ms McGowan, Mr Bandt and Mr Wilkie voting no.

Bill read a second time.