Wednesday, 29 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
Given the way the committee is moving, I think it might be opportune for Labor to indicate its position in relation to the declared areas matter, rather than waiting until I formally move my amendments, in response to these amendments moved by Senator Wright, because we have now moved through the first of Labor's main concerns, which were those in relation to the issues that we dealt with around advocating terrorism. The second main area where we had concerns arising out of the intelligence committee's consideration was this declared area provision. The third major area in which we had concerns was that around the provisions with respect to welfare measures. I should indicate that we appreciate the government's cooperation in relation to those third measures, and we will come to those subsequently if we have time in the debate, but if we do not have sufficient time I want to indicate that we have appreciated the government's cooperation in accepting our concerns there. We would, however, like them to consider what we are now addressing in our amendments regarding declared areas. I will come to those in a moment.
As to these Greens amendments which would remove the entirety of the declared areas offence, we believe that the approach that we have circulated in revised schedule 7601 renders it a workable and useful tool for our agencies. So we obviously accept, with the intelligence committee's advice, that such a tool is warranted. Our concern about protecting the rights of the accused is what we will be dealing with in our amendment.
As we know, the bill creates a new offence in relation to people who travel to areas declared by the foreign minister. A number of members of the intelligence committee were unsatisfied with the prescription and limited range of excuses available to persons accused of travelling to or remaining in such a declared area. These committee members argued that a general exclusion should be available to those with a wholly legitimate purpose for being in a declared area. Specifically, the intelligence committee stated, at 2.387 of their report:
Committee members had different views about whether the declared area offence as currently drafted would be an effective and workable provision. Some members of the Committee questioned whether the legitimate concerns presented in evidence had been adequately addressed, particularly in relation to the evidential burden and the limited range of legitimate purposes for travel to declared areas. The Committee notes that the proposed INSLM—
the proposed security monitor—
and Parliamentary Joint Committee on Intelligence and Security reviews leading into the sunset provision will enable this to be more fully explored.
At 2.388, the committee reflected that:
Some members of the Committee believed that, given the seriousness of offences arising under this section that it is appropriate for there to be a 'wholly legitimate purposes' general provision in the legislation.
So, in accordance with these comments of the intelligence committee, Labor will be moving amendments to provide a general defence of wholly legitimate purposes for those accused of travelling to or remaining in a declared area. We do not believe that it is possible for the parliament to anticipate in advance every possible legitimate reason for a person to travel to a declared area.
Our amendment to this provision will recognise the critical role that the third arm of government, our judiciary and the criminal justice system, plays in our democracy. We think that it is entirely appropriate for the courts to determine whether a person travelling to a declared area has done so for a solely legitimate purpose. Labor believes that it is entirely appropriate and just for a judge or a jury to decide whether a person has travelled to a declared area for a sole and legitimate purpose, assuming that the police and the DPP have decided to charge that person with that offence. To expect that the parliament can, here and now, anticipate all legitimate reasons for a person to be in a declared area is a serious mistake that could potentially create a very unjust law. Our amendment, creating a general defence for a sole legitimate reason for travelling to a declared area, does not fix all of the problems with this offence, but it at least provides a more just and appropriate defence to those who may be charged, and our amendment recognises the critical role that the judiciary and our courts have in administering our criminal laws rather than trying to circumvent that role, as the government's more prescriptive approach clearly seeks to do.