Thursday, 30 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; Consideration in Detail
by leave—I move amendments (1) to (6) on sheet ABCTLAFF1, standing in my name, together:
(1) Schedule 1, item 110, page 82 (line 1) to page 85 (line 10), omit sections 119.2 and 119.3.
(2) Schedule 1, item 110, page 92 (line 32), omit "or 119.2".
(3) Schedule 1, item 110, page 82 (line 13), at the end of subsection 119.2(1), add:
; and (d) the person enters, or remains in, the area with the intention of engaging in:
(i) a terrorist act; or
(ii) a hostile activity; or
(iii) an activity prescribed by the regulations.
(4) Schedule 1, item 110, page 83 (line 5), after "family member", insert "or friend".
(5) Schedule 1, item 110, page 83 (after line 5), after paragraph (3)(g), insert:
(ga) making a bona fide visit to a personal or business associate;
(gb) providing legal advice;
(gc) performing a bona fide business, teaching or research obligation;
(6) Schedule 1, item 110, page 83 (line 6), at the end of subsection 119.3(3), add:
; (i) any other purpose that a court determines is legitimate in all the circumstances.
A number of people that I have spoken to since these laws were first raised are very concerned about the effects of these laws on their legitimate travel plans. If this bill passes as is, it will be a criminal offence to travel. This bill criminalises travel to another country. There are many people in this country who regularly travel overseas to visit acquaintances, to do business, to visit their family. They may be going over to help others who are in strife. They will often go to areas where their family members, friends or business associates live that are areas that they themselves have fled from. These may be countries in Africa, instances of which I and people in my electorate are very familiar with. They will regularly go back to check on people who are in much grimmer situations than us. And that is why they fled in the first place. It may be that they are going for a religious pilgrimage, that they are visiting someone to give legal advice or that they are visiting a business associate. Or it may be that there is some other reason that might be determined to be legitimate in all the circumstances. If this bill goes through, the onus of proof is on them to prove that they have done nothing wrong. If they cannot establish that, they are presumed to have committed an offence.
These amendments put this bill back in line with the ordinary principles of criminal law. It will do so by doing two things. Firstly, these amendments will require that someone who has travelled overseas has done so with the intention to do harm. If someone who has gone overseas for an innocent purpose does not have that intention then they are not presumed to have committed an offence. So it introduces a mental element, as most other crimes have, so that the prosecution will be required to prove that someone went over there with the intention to do us harm. That is simple, fair and something that exists in relation to just about every other offence in this country, as it should in any country that says it cares about the rule of law and that says that the prosecution should have the burden of proving that someone has done something wrong.
These amendments will also extend some legitimate protections to people who go overseas, for example, to visit a business associate, to provide legal advice to someone or to perform a bona fide business, teaching or research obligation. They will allow a court to determine that, in certain situations, the reason for going overseas might have been legitimate in all the circumstances. That is what we should do. We should put the power back in the hands of courts to be able to determine in an individual instance whether or not someone has done something wrong.
The reason this is so critical is that there will be people in this country in their tens of thousands who regularly go overseas to visit someone close to them but who may, when they come back, not have a statutory declaration in their pocket from their business associate or their illiterate grandmother to prove why they went there. If they do not, if they cannot discharge that onus, then at the moment they are presumed to have committed an offence. All of those people who travel innocently and legitimately overseas to areas that, when they leave Australia, they may not even know have been declared a conflict zone—it may happen when they are over there—deserve to have their rights protected.
I do not want to see any more hand wringing from the Labor Party about this, because now you have an opportunity to support our amendment and preserve the rights of people who go overseas for legitimate reasons. The bill is going to pass—we know that—so let's carve out some protections for people who are not doing anything wrong. Let's not make travelling overseas a criminal offence, which is what will happen if these amendments are not passed. I urge the government, who knows that this bill is now going to get through, to protect the right of innocent people by supporting these amendments.
The government will not be supporting these amendments. If we were to do so, it would essentially render what we are trying to do completely useless. The purpose of these parts of the legislation, where we would proscribe a particular area within a conflict zone, is to act as a deterrent for people to go to those areas and also to make sure that, if you were to go into a proscribed area, you would be committing an offence unless you could provide a legitimate defence, of which several have been listed.
The purpose of this bill is not, as the member for Melbourne has suggested, to somehow restrict people from travelling. Proscribed areas will be limited in scope. They will be declared by the foreign minister and they would be presumed to be declared for areas within a conflict zone that would be under the control of a terrorist organisation. If you were going to those areas, firstly, you would be doing so at great personal risk; secondly, I think it is legitimate for us to ask why you would be going to areas which are under the control of a vicious terrorist organisation.
Of course, this is not going to be something that is going to be used extensively; we would expect it would be used in very limited circumstances, subject to the discretion of the foreign minister, over parts of the world that are under the control of these sorts of organisations. There are already plenty of safeguards within the legislation to make sure that, if, for a legitimate purpose, you did go to an area that had been proscribed, that is an appropriate defence. Other safeguards are the fact that any prosecution would need to be agreed by the Attorney-General. And of course it is still at the discretion of the prosecutor, who would need to make a judgement that that prosecution would be in the public interest.
We do not seek to restrict the rights of Australians to travel anywhere in the world that they would like to travel to. If the foreign minister deems it appropriate, she will proscribe certain areas within a conflict zone that would be, for example, controlled by a terrorist organisation. If you were going to these areas—if you were going somewhere in Syria or northern Iraq that were under the control of ISIL, for example, I think it is perfectly legitimate that we would question your motives in going there. There are significant safeguards to make sure that, if somebody were in these areas doing something legitimate, they would not be subject to prosecution. Clearly we do not seek to restrict the ability of Australians to travel overseas. I can assure the member and the Australian people that this bill will not do that.
The question is that the member for Melbourne’s amendments be agreed to.
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 negative 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 negatived, Mr Bandt and Mr Wilkie voting yes.
by leave—I move amendments (1) to (4) on sheet ABCTLAFF2, standing in my name, together:
(1) Schedule 1, item 110, page 91 (lines 10 to 13), omit paragraph 119.7(2)(a), substitute:
(a) the person publishes an advertisement in Australia; and
(2) Schedule 1, item 110, page 91 (line 15), omit "or item of news".
(3) Schedule 1, item 110, page 91 (lines 20 to 23), omit paragraph 119.7(3)(a), substitute:
(a) the person publishes an advertisement in Australia; and
(4) Schedule 1, item 110, page 91 (line 24), omit "or item of news".
We need to have an open discussion in this country about why people are radicalising, because it is a threat to our safety. One of the first things we need to do is understand what tactics are being used by those who would do us harm and allow that to be reported and discussed so that we can stop it, so that every family who is worried that their child may be lured to go overseas and join the kind of terrorists that we are seeing at the moment knows what to look out for. Collectively, as a society, we need to have a discussion about what we need to do to ensure that Australia is a place where everyone feels that they have a place and where no-one wishes to do us harm.
But there is a broader principle here: we have a right to know what is going on and to discuss it. The Herald Sun this morning made clear in its editorial—not usually a paper that is known to line up with the Greens—that what is at stake is a question of freedom of the press, of the Australian right to know and doing what we should to ensure that all Australians are safer. It said:
The unarguable right of Australians to know what is done in their name is being torn down by security laws being rushed through Parliament.
The laws that make it a criminal offence to publish what are loosely called 'news items' about the way terror suspects are recruited is only one arm of an arsenal of restrictive legislation affecting the media.
But it is the public who are to be denied what they should be told. The community at large should know how young men are radicalised. Parents have every right to know how their sons are turned into willing recruits for Islamic State terrorism. They should be made aware of the pitfalls awaiting them, whether on the internet with its hate preachers, or in associating with the shadowy groups who will lead them astray.
That is why I am moving amendments that will continue to make it an offence in this bill that is obviously going to pass this parliament to publish recruitment advertisements but will remove the reference to news items so that we can have legitimate discussion in this country about what is going on in this country without risking sending journalists to jail.
The first set of security bills that went through this parliament in an unseemly rush with Labor and Liberal agreement had the effect of saying that a journalist could go to jail if they reported on a security operation that had gone wrong and resulted in an innocent person being killed. Labor signed up to that. We made the point here in this chamber and elsewhere in this parliament that that would stifle freedom of speech and deny Australians the right to know what is going on in their name. Labor could not pass the law quickly enough. Now they are out there wringing their hands at press conferences and saying, 'We didn't mean it.' Well, you were put on notice. You knew and you did it anyway. Now you have the chance to stop it with these amendments.
The government have the chance to stop it as well. I understand the Attorney-General has been out there saying, 'We never had any intention of sending journalists to jail.' Well, then, do something about it. Do not vote one day to send journalists to jail and then give a press conference the next day saying, 'We didn't mean to.' Vote with us now to change the law to protect freedom of the press and to protect journalists. That is what these amendments will do if you pass them. These amendments will ensure that this loosely defined and newly created term of 'news items' does not appear in the bill anymore.
Labor, enough with the hand wringing: support us and change the bill. Coalition, enough with asking us to take the Attorney-General on faith that at sometime in the future he will never prosecute a journalist: change the law so that it is impossible. Let's protect freedom of the press and let's protect the right of people in this country to know what shadowy recruitment tactics are going on so that we can have an informed debate about how to stop it. Quickly passing laws that threaten to send journalists to jail is not something that this parliament should be doing. I commend the amendments to the House.
The government will not be supporting these amendments. I will go to the specifics of why that is the case in a minute. I just want to address the general point that the member for Melbourne made in his contribution, and that is that somehow the government do not believe that every Australian has their place in this country. That is absolutely not true. The government have been at pains at all stages of introducing and discussing our new security legislation to ensure all members of the Australian community that this is not about targeting an individual community and that this is not about targeting an individual religion. We have been at pains to point that out. To say otherwise in this place is irresponsible. It is not a true reflection of this government's values. The idea that we would not stand side by side with every Australian is completely untrue. All of these laws in every case target a very small criminal element. As I said in my earlier contribution to this debate, I think that is exactly what the Australian people would expect their federal governments to be doing.
I want to address the second general point the member for Melbourne made about freedom of the press. I think everybody in this chamber understands that freedom of the press is an essential foundation point of our democracy. We would not do anything that would willingly undermine that freedom. This bill does not do that. Hyperventilating and saying that it does does not make it true. I can assure the member and all Australian people that this does not undermine freedom of the press in any way, shape or form.
If we accepted these amendments, we would be opening up the offences to exploitation by allowing people not limited to journalists to recruit vulnerable individuals to engage in foreign fighting and to facilitate the travel of recruits to a place where that fighting is occurring on the pretext of reporting the news. On the pretext that you are a journalist and reporting the news, you could go about this insidious behaviour of recruiting young people to fight in these foreign conflicts. These offences do not capture the proper reporting of the news. They do not capture proper and legitimate journalism. What they are designed to do—and what they will do—is deter and punish those who recruit or facilitate the recruitment of young Australians, or sometimes not-so-young Australians, to fight in these wars.
I am not sure if the member for Melbourne is aware of this, but this is not a new offence. This has been part of our legislation since 1978. Since 1978, not one journalist has ever been charged under this offence. So the idea that somehow this will restrict freedom of the press is nonsense. All we are doing is modernising the language from an existing offence that has never once been used to prosecute a journalist. As I have said, freedom of the press is vitally important. This government would not do something that undermined it. But we will continue to undermine the criminal element that is going around and recruiting vulnerable young people to go and fight and often die in foreign conflicts.
I want to make it clear that Labor will be voting against this amendment and also make it clear that the member for Melbourne has wholly misconceived the purpose of what will become section 119.7 of the Criminal Code. As the minister has said, the Crimes (Foreign Incursions and Recruitment) Act, which is being incorporated here in the Criminal Code, has contained a prohibition on publishing an advertisement to recruit people to fight in foreign conflicts since 1978. What this legislation does is to incorporate that prohibition on publishing an advertisement for the purpose of recruiting persons to serve in foreign conflicts or to take up arms in foreign conflicts. This legislation adds to it this provision, which is what the member for Melbourne's amendments are directed to, but adds to it something that is designed to capture something that was perhaps less common or non-existent in 1978: the well-known concept of an advertorial—something that appears in the media looking like a news item but which has in fact been paid for. That is all that this provision does. The member for Melbourne has represented it quite falsely as an extraordinary attack on press freedom. It is nothing of the kind. We need to see this amendment for what it is: it is masquerading in some way as a defence of press freedom, which it is not. The provision does not attack press freedom and amending it is not a defence of press freedom.
The question is that the member for Melbourne’s amendment be agreed to.
A division having been called and the bells having been rung—
As there are fewer than five members on the side for the ayes, I declare the question resolved in the negative 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 negatived, Mr Bandt and Mr Wilkie voting yes.
The question now is that this bill be agreed to.
Question agreed to.