Senate debates

Wednesday, 29 October 2014

Bills

Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee

10:47 am

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Senator Collins and I understand each other. We are dealing with a proposed amendment to subsection 80.3(1) of the Commonwealth Criminal Code, by which the opposition would include a provision specifying that section 80.2C—that is, the advocacy of terrorism offence—does not apply to a person who engaged in good faith in public discussion of any genuine academic, artistic, scientific, political or religious matter. The government opposes this amendment for a couple of reasons. On a narrow reading it is unnecessary because what section 80.2C would do is make it an offence to advocate terrorism—to advocate the commission of a terrorist offence or to engage in a terrorist act. It is inconceivable that a person could, if they are advocating the commission of a terrorist offence or engagement in a terrorist act, be merely acting bona fides in a public discussion of political or religious matters.

The amendment that Senator Collins has moved, for reasons I explained to Senator Wright earlier in the morning, is quite unnecessary. There is nothing in the proposed advocacy of terrorism offence which would capture the expression of political or religious opinions, unless they were to trespass beyond being merely the expression of opinions and become the advocacy of violence. That is what this captures. The distinction between the expression of opinions and the advocacy of violence is a very clear distinction. So the Labor Party amendment, on a strict view, is unnecessary.

It is also invidious for another reason. You will recall that I said to Senator Wright before that we should always conduct these debates about the introduction of new criminal offences mindful of the fact that the onus of proof lies on the prosecution to prove beyond reasonable doubt before a jury that every element of the offence has been committed, and the jury must also consider any defences that might be raised. The very vagueness of the terms 'academic', 'political' or 'religious' matters as such could very well cause confusion in the minds of jurors. I would not expect that the typical juror would be a scholar of the Koran. Let us say that, in relation to a particular prosecution in which terrorism was advocated, it was said by an expert witness, 'This is really consistent with a particular passage of an Islamic holy book.' There are a variety of claims made about every religious faith. There are a variety of contestable claims made about what constitutes the doctrine of every religious faith. I have said from start to finish in this debate that Islam is a religion of peace and that those who preach the doctrines of ISIL and Jabhat al-Nusra and the other radical deviants from that religion do not represent the views of that religious faith. But let us say that in a prosecution a particular scholar with a particular point of view were to contend to the contrary. Does that mean that a jury could not be satisfied beyond reasonable doubt that there should be a prosecution even though what was involved constituted the advocacy of terrorism? So I think, from a technical point of view, this amendment is unnecessary, but from a practical point of view, from the point of view of giving effect to the amendment in the real-world circumstances of a criminal prosecution, it may very well defeat the effect of section 80.2, and that is why the government oppose it and we call on the crossbenchers other than the Greens—who, of course, would support this—to oppose it as well.

The TEMPORARY CHAIRMAN (10:53): For the purpose of the committee, I called upon 7601 when I called Senator Collins, but we will deal with 7605. Senator Collins, I would now invite you to move that amendment formally.

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