Wednesday, 29 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
Let me make a couple of preliminary observations and then deal with the Labor Party amendment. It is not correct to say that the government's acceptance of all 37 recommendations from the Parliamentary Joint Committee on Intelligence and Security was misleading. We accepted all 37 recommendations.
In relation to some of the recommendations, there was a variety of ways in which they could be given effect to, because only in a minority of cases—I think it was in some dozen cases—did the PJCIS recommend legislative amendment. Most of the changes that were recommended were administrative changes in the way in which, for example, the PJCIS works and interacts with the government.
The example that Senator Wong gave, of the recommendation that the counter-terrorism function of the Australian Federal Police should be transferred from the legislative oversight of the Joint Parliamentary Law Enforcement Committee to the Joint Parliamentary Intelligence and Security Committee, was accepted by the government. The manner in which that was given effect to depended upon soliciting the views of the Parliamentary Joint Committee on Law Enforcement, which is what I did. I spoke to the chairman of that committee, Mr Bert van Manen MP, to solicit his views about the transfer of that important responsibility from his committee to another committee. Mr van Manen was good enough to say to me that he, on behalf of the committee, was content for that to happen.
Senator Wong has come into the chamber—evidently not fully briefed on this issue; there were a number of errors in her contribution—and has claimed that somehow the government was being misleading in claiming that it had accepted a recommendation without having done so, merely because I paid the committee from whose jurisdiction a particular function was to be transferred the courtesy of inquiring of their views before giving effect to that recommendation. That is a little mendacious, I must say.
This has not been a particularly partisan debate, and it disappointed me to hear Senator Wong constantly say that the Labor Party has done this or that. The fact is that the improvements to this legislation, which the government has accepted wholly, came from a committee of the parliament, the Parliamentary Joint Committee on Intelligence and Security—on which I had the honour to serve for some years when in opposition—which always acts in a collaborative and bipartisan way. I think that if the Australian public could see its deliberations it would be proud of the way that committee acts. It is unlike the way in which virtually every other committee of this parliament acts.
The recommendations were the product of the joint effort, the joint careful thought, of Labor Party and Liberal Party and National Party members of that committee, working collaboratively as parliamentarians, working in a bipartisan fashion as patriots. It was not the work of one side of politics; it was the work of all sides of politics. So let me correct the regrettably partisan tone that Senator Wong just injected into the debate.
Dealing with the Labor Party's amendment that is before the chair, the government opposes the amendment. Let me explain why. I might point out that this is the second iteration of this amendment that we have seen today, but, nevertheless, ultimately the Labor Party, through its own internal councils and processes, has arrived at a final position after quite a lot of uncertainty during the course of the debate. The government opposes the Labor amendment for several reasons. Let me put them in the context of the purpose of this provision. The purpose of this provision, quite candidly and openly and unashamedly, is to say that there are some areas of the world—under the control of terrorist armies which are at war against their own populations, as they are in northern Iraq, which are engaged in genocide and religious persecution and subversion of legitimate governments—to which Australians should not travel. The government makes absolutely no apology for saying that there ought to be a law enabling in certain circumstances the Australian government, through the Minister for Foreign Affairs and on the advice of her department, to say that, because of the particular circumstances of a particular locality or region of the world, this is a place to which Australians should not be permitted to go, just as there are many other places to which Australians are not permitted to go by existing laws. I gave some examples to Senator Wright before. Nevertheless, the government accepts that there may be special circumstances which necessitate travel to such an area.
In the bill we set out seven particular cases where, if a person can lead evidence before a court to show that they were there solely for that purpose, then that constitutes a defence to the charge of being in a declared area. Let me take the one that I was discussing with Senator Wright before—making a bone fide visit to a family member. That, I suspect, is the exemption which would be most often availed of. We accept that if, for example, a relative of an Australian happens to live in an area somewhere in Syria or northern Iraq which may have become a centre of terrorist operations, but, nevertheless, let us say that the person had a sick relative for whom they felt a need to travel to care for, to visit that area should not be caught within this offence. There are other examples given as well.
The Labor Party seems to accept the spirit of this provision, but it wants to change the way in which it works by replacing seven specific grounds, which constitute defences to the offence of visiting a declared area, with a generic discretion which the courts would exercise, saying, 'If you travel for a reasonable purpose, then that is a defence.' There are three reasons in particular as to why that is a very bad idea. The first reason is that it is appalling statutory drafting. We are dealing here with a crime, and in particular, for the purposes of this discussion, with the defences available to a person who is charged with a crime. Senator Wright raised the issue of the importance of the rule of law before. It is, as Senator Wright well knows, one of the fundamental tenets of the rule of law that, if a person is to be exposed to a criminal liability, then the nature and extent of that criminal liability should be known as certainly as can be known and expressed as certainly as it can be expressed in the statute. To say that a person is guilty of a crime and then draft a defence that gives no guidance whatsoever as to whether or not that defence will be available to the person is a fundamental violation of that principle of the rule of law—that the grounds of criminal liability have to be expressed with as much specificity as possible. How could anyone know whether or not they are going to be in breach of the criminal law merely because there is a generic defence that says, 'If a court decides you had reasonable grounds to be there', and gives no guidance whatever as to what the reasonable grounds might be? That is all they have to go by. So, applying your own principle, Senator Wright, to which I subscribe of course, this is a very, very, very bad piece of legislative drafting and it is a shocking example, in particular in a criminal statute, of creating a liability of uncertain dimension.
The second reason the government opposes this amendment is that it actually removes the sole purpose test. Senator Collins, in her contribution before, perhaps was unaware of this, because Senator Collins did say that it was important that a person should have the defence if it could be demonstrated that they travelled to a declared area solely for one of the legitimate purposes, though she said it would need to be solely for the generic purpose, not for one of the specified purposes. Nevertheless, she did say in her contribution that the sole purpose test should apply. But, if you look at the Labor Party's amendment, the sole purpose test is gone. If the sole purpose test is gone, then the ordinary provisions of the Criminal Code apply and, as long as the purpose is one of a multiplicity of purposes, that is enough. So to give the example I gave a little earlier: if a person were to visit a declared area and one of their purposes was to make a bona fide family visit and another one of their purposes was to engage in the facilitation of terrorism, then they would be able to avail themselves of that defence. This does not work unless the sole purpose test remains and the Labor Party's amendment would remove the sole purpose test.
Lastly, the other thing that the Labor Party's amendment would remove is paragraph (h) of proposed subsection (3), which gives the minister the power to proscribe by regulation another purpose. So there is flexibility in this statute through a regulation-making power conferred on the minister to specify other purposes. So let us say, for example, that it became apparent that, in listing seven specified purposes, the government had got it wrong, that it had overlooked something that ought to be a legitimate purpose. That could be corrected by a legislative instrument under the regulation-making power in subparagraph (3)(h), but the Labor Party amendment would remove that as well.
So the Labor Party amendment fails the test of specificity—it is vague when it should be precise; it fails the test of purpose, because it abandons the sole purpose test, which is central to the capacity of this provision to operate; and it abandons the regulation-making power, so it fails the test of flexibility as well. For all of those reasons, the government opposes the Labor Party's amendment, and it looks to the good sense of the crossbenchers, excepting the Greens, of course, to do so as well.
Lastly, let me say this: this was not one of the recommendations of the Joint Parliamentary Committee on Intelligence and Security. The Joint Parliamentary Committee on Intelligence and Security supported the provision that the government seeks to enact. That was the bipartisan view of Senator Wong and Senator Faulkner and Senator Conroy and Ms Tanya Plibersek and Mr Anthony Byrne from the Labor Party. They actually endorsed the government's position. This is one respect in which the Labor Party, having changed its position here, now seeks to walk away from the bipartisan report of the Joint Parliamentary Committee on Intelligence and Security. If this provision were to be passed for the various reasons I have expressed, it would defeat the entire purpose of an important reform to the criminal law, which the PJCIS has unanimously, in a bipartisan report, endorsed.