Wednesday, 29 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
I am really at the indulgence of the committee. I am not wishing to gazump the debate, so I would be interested to know if Senator Collins would be prepared to agree to that. I would be happy to do that because it might be more efficient. Otherwise, we will just move the aspects of our amendments which would seek to knock out the no-go zones.
The CHAIRMAN: If I could just intervene. Amendments (16) and (17) have to be put separately, anyway. I am happy if the debate goes across the three of them, if it is the will of the committee at the time. Maybe if you just move (16) and, if people want to talk to the three amendments, that will be fine.
I move Australian Greens number (16) on sheet 7954:
(16) Schedule 1, item 110, page 82 (line 1) to page 85 (line 10), sections 119.2 and 119.3 to be opposed.
On moving item (16), being Australian Greens amendment to remove the declared areas offence in the bill, the bill seeks to create a new offence of entering or remaining in a declared area, which would be punishable by 10 years imprisonment, so it is a significant offence. Under the provision, if it were to be passed, areas in a foreign country can be declared by the Minister for Foreign Affairs, by way of legislative instrument, if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country. Declarations can last for a maximum of three years.
There is a narrow legitimate purpose defence available for those charged with the substantive offence. The Australian Greens amendment (16) would remove the proposed no-go-zone offence from the bill because it is considered that this offence will unnecessarily and disproportionately restrict freedom of movement in Australia. Certainly views have been expressed and the Greens are of the view that this is potentially an extremely counterproductive outcome. It risks entrenching feelings of isolation and alienation in the very communities in Australia that we rely upon to assist in this fight against terrorism and in order to build social cohesion and inclusion in the Australian community because this offence, if it stays, will criminalise what is perfectly legitimate travel. It will make it punishable by 10 years imprisonment for a person to travel to a declared area and because there is no fault element required, it has the practical—if not the technical—effect of reversing the onus of proof. It would require anyone who is charged with the offence after having travelled to a declared area to bring their own evidence to demonstrate that their travel was not only to fall within a narrow list of legitimate purposes but also that that travel was solely for that reason. For instance, an elderly couple who are travelling to a declared area to visit a dying friend or a young person who is travelling to a declared area to study, or a business person who remained in an area, after it had become a declared area, to conclude a business deal, there is no need to establish any criminal intent. Those people would be subject to potential prosecution upon returning to Australia. Even where there is a legitimate purpose provided for in the offence such as a journalist, they remain liable to be charged with the offence, brought before a criminal court and required to bring evidence to prove that journalism was the sole reason for their travel to escape conviction.
The legal experts we have been paying attention to have stated that this is yet one more example of a completely unnecessary new offence. The expert advice in this area which we would be referring to is advice from the Law Council of Australia, the Gilbert and Tobin Centre for Public Law, the Australian Human Rights Commission, Professor Ben Saul, Human Rights Watch and the Human Rights Law Centre. The Parliamentary Joint Committee for Human Rights has also expressed concerns about the potential incompatibility of this provision with human rights in Australia.
Australia's criminal laws, which we asked the chamber to consider, already cover well and truly circumstances where a person leaves Australia in order to participate in hostile or terrorist activities overseas, as well as circumstances where a person encourages or urges another person to engage in such activities or a person who financially or otherwise supports terrorist or criminal organisations. That is the reason that the Australian Greens are moving to have this offence removed from the bill. I have some questions to which I really would appreciate the Attorney-General's response. The first I will put to the Attorney-General in relation to the offence as it stands in the bill at this stage is why the government has chosen to frame this offence in such a way that departs so significantly from the type of established criminal law and rule of law principles that the Attorney has a tradition of vigorously defending.