Senate debates

Wednesday, 29 October 2014


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

11:59 am

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I and on behalf of Senator Collins move opposition amendment (1) on sheet 7601 revised:

(1) Schedule 1, item 110, page 82 (line 18) to page 83 (line 8), omit subsection 119.2(3), substitute:

Exception—entering or remaining for a legitimate purpose

I want to make some brief comments, not only on that amendment but also because I was away yesterday, on the broader issue of the bill.

As a general proposition, the Labor Party has taken a strongly principled and responsible approach to national security legislation. We on this side of the chamber do understand it is a fundamental responsibility of government to keep citizens safe. That is why we support appropriate resources and powers being given to our national security agencies to keep Australians safe from threats at home and abroad. At the same time, Labor recognises that such powers must be accompanied by the appropriate safeguards, by oversight of the security agencies. This is to ensure that the rights and liberties of citizens are not infringed.

Senator Collins has said our bipartisan assistance to the government on matters of national security is never a blank cheque. That is why the opposition sought significant changes to this bill. Labor worked tenaciously, as Senator Collins has outlined, to improve this bill. We sought to ensure that it assists our agencies in addressing risks posed by foreign fighters and we have insisted on necessary safeguards for fundamental democratic freedoms.

The government's original bill went to the Parliamentary Joint Committee on Intelligence and Security, where members and senators from the Labor Party, and our parliamentary colleagues, closely scrutinised the bill and tested the case for each new measure.

I would make this point that the experience of Labor senators and members who were involved in the scrutiny of this bill is considerable. Three of the four members of Labor's federal parliamentary leadership team—Ms Plibersek, Senator Conroy and I—are members of this committee. We are joined by Mr Anthony Byrne who has served on this committee and its predecessor for the majority of the last decade, including three years as chair. The committee membership also includes Senator John Faulkner—and anyone who heard Senator Faulkner's contribution to the second reading debate on this bill yesterday would be left in no doubt about the experience, knowledge and insights he brings to this area. I do take this opportunity to particularly commend Senator Faulkner for his work not only on this inquiry and in the debate on this bill but also on his recent paper, 'Surveillance, intelligence and accountability'.

As a number of contributors to the debate have identified, the report of the inquiry of the PJCIS into this bill made 36 substantive recommendations. Those have resulted in substantial amendments being proposed by the government to this bill. I want to emphasise the impact of the committee's report and the resulting amendments that have been proposed as compared with the original bill. I would also like to point out that when the Attorney-General released his original response to the recommendations of the committee, stating that all of the recommendations had been accepted, closer examination found this was not the case, in some measures. For example, the committee explicitly recommend it in recommendation 14 that its functions be extended to encompass the counter-terrorism activities of the AFP. The government response, while saying the recommendation was accepted, did not rule this out. I am pleased that through the work particularly of the shadow Attorney-General, Mr Mark Dreyfus QC, amendments have now been made to give effect of this recommendation in full.

One of the areas that was the subject of concern in many submissions to the committee's inquiry and consumed a considerable amount of time in the public hearings was the proposed sunset clauses. The original bill proposed to extend the operation of the control-order regime for a further 10 years, to December 2025, preventative-detention-order regime for a further 10 years to the same month, December 2025, and to stop search-and-seizure powers relating to terrorism offences the same period. The questioning-and-detention-warranting regime under the ASIO Act was proposed to be extended for a further 10 years, to 22 July 2026.

Labor believed these provisions were unacceptable and made that clear. We are pleased that the committee agreed and unanimously recommended that all of these clauses proposed for sunset will do so—that is, will sunset during the life of the next parliament. That is a much more limited period prior to the sunset provisions coming into effect. We are also pleased that the government and the Attorney-General in particular has agreed in substance to this recommendation, with amendments proposing set dates for the sunset to take place. Further, all sunset clauses are accompanied by mandated review by the Parliamentary Joint Committee on Intelligence and Security and the Independent National Security Legislation Monitor.

We are pleased that we were able to put forward, successfully, that these sunset provisions are accompanied by mandatory reviews ahead of their expiry. As was noted in a number of submissions to the committee and in evidence, the whole purpose of sunsetting provisions is undermined if appropriate reviews are not conducted. In relation to the Independent National Security Legislation Monitor I note that earlier this year the government claimed this oversight position just added red tape and sought to repeal the legislation establishing the position. I welcome the government's change of heart and I would ask—if it has not already been indicated—if the Attorney-General has an indication as to the time frame for the filling of that position, which has been vacant since April.

Labor has also improved human-rights protections in the bill's provision in relation to the use of overseas evidence in terrorism prosecution in Australian courts. We sought amendments to clarify that torture can never be accepted under our law and are pleased that the joint committee recommendations dealt with this and other matters in relation to foreign evidence.

I now wish to turn to the defences in relation to the 'declared areas offence', which is the subject of the amendment that I have now moved on behalf the opposition. Labor recognises the policy reason behind the declared areas offence. However, we believe we need to ensure that Australians are not being prosecuted for these offences when they are in declared areas for an entirely legitimate purpose. What is intended by this offence is to capture nefarious purposes, which have been the subject of discussion not only in this chamber but also in the context of the committee inquiry.

You cannot identify in legislation every possible legitimate or non-nefarious reason that a person might have for travelling to a particular place in the world. Accordingly, it is our view that this legislation needs to include a general defence or exception for cases where a person enters or remains in a declared area for a legitimate purpose.

The parliamentary joint committee noted:

… the Committee accepts that there are likely to be some legitimate reasons for travel to an area that are not covered in the proposed grounds of defence listed in subclause 119.2(3) of the Bill. It may be inconsistent, for example, for persons to be allowed to travel to a declared area for a social visit to a family member, while prohibiting travel to a declared area to visit a close friend who is dying. The Committee supports the inclusion in the Bill of a provision to allow additional legitimate purposes to be prescribed by regulation if needed. The Committee encourages the Attorney-General’s Department to review the evidence provided by participants to this inquiry to identify legitimate purposes that could be added to the regulations in this manner, without reducing the deterrent effect of the offence.

Further, the committee stated in its 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—

the very limited range—

of legitimate purposes for travel to declared areas.

The committee went on to state:

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.

This is the subject of the amendment I have now moved on behalf of the opposition. I believe—Labor believes—that courts should have the discretion to determine the appropriateness of a person's defence that they were in a declared area for a wholly legitimate purpose. That is not a special job we are asking the courts to do. Judges and courts are appropriately placed to hear evidence and make decisions—and make such decisions responsibly. It is not a sensible way to proceed to have parliament seek to set out the factual circumstance of every defence to this offence. It is entirely consistent with a responsible approach to this offence—and a responsible approach to legislating—to enable the courts to have the discretion to consider factual circumstances which this parliament may not be able to contemplate.

So Labor has sought to remedy the short-comings of the defences listed by proposing amendments to widen the scope. In this amendment I wish to highlight the inclusion of some examples in our amendment, which include the provision of humanitarian aid—


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