Senate debates

Wednesday, 26 November 2014


Counter-Terrorism Legislation Amendment Bill (No. 1) 2014; In Committee

11:20 am

Photo of Penny WrightPenny Wright (SA, Australian Greens) Share this | Hansard source

by leave—I move Australian Greens amendments (1), (2) and (7) on sheet 7626 together:

(1) Schedule 1, item 7, page 4 (lines 29 to 31), omit paragraph 104.2(2)(c), substitute:

  ; or (c) suspects on reasonable grounds that the person has provided support for or otherwise facilitated a terrorist act; or

(2) Schedule 1, item 11, page 7 (lines 1 to 3), omit subparagraph 104.4(1)(c)(vi), substitute:

     (vi) that the person has provided support for or otherwise facilitated a terrorist act; or

(7) Schedule 1, item 25, page 9 (lines 13 to 16), omit paragraph 104.23(1)(c), substitute:

  ; or (c) suspects on reasonable grounds that the person has provided support for or otherwise facilitated a terrorist act; or

Schedule 1 of the bill will expand the control order regime to enable control orders to be sought for a much broader range of conduct, including preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country and preventing the provision of support for or the facilitation of a terrorist act. These Australian Greens amendments limit the use of control orders to require a clearer, stronger nexus between the activity of the person and the commission of a specific criminal offence. The amendments do this by requiring the police officer who is applying for either the interim or confirmed control orders to demonstrate that he or she 'suspects on reasonable grounds' that the person has in fact provided 'support for or otherwise facilitated a terrorist act' or a hostile activity in a foreign country. This is different to the bill as currently drafted, which would allow control orders to be sought if reasonably suspected to be necessary to prevent the provision of support et cetera.

Why are these amendments necessary? The Australian Greens believe that these amendments are critical as the changes proposed in the bill would otherwise allow a control order, which displaces the usual standard and the usual process we have in Australia—that is, arrest, charge, prosecution and determination of guilt or otherwise on the basis of evidence—to be a coercive regime; it would allow a control order to be sought purely as a preventative measure where there is no clear evidence that the person subject to the order has actually formed criminal intent or taken any specific action towards the commission of a criminal offence.

When control orders were originally introduced, there was significant disquiet about moving away from our established practice to having a coercive regime in this way. One of the justifications for it was that it was necessary to prevent an 'imminent' risk of serious harm. What we have seen is a creeping erosion of those protections and a broadening of this orders regime to the point now where we are seeing that it is highly likely that these coercive orders place significant restrictions on a person's ability to go about their life and live within the community, on the basis of possibly preventing—just preventing—something that may or may not happen, without very much evidence. This amendment would ensure that control orders are only available in the most serious of circumstances. That was the rationale for when they were originally developed and introduced: where the authorities have real evidence to demonstrate that they are necessary to protect the public from a terrorist act or to prevent engagement in a hostile activity overseas.

Without this amendment, the changes proposed in schedule 1 of the bill would significantly expand the scope of the control order regime, changing the character of the regime from one of last resort, which, given its coercive and extensive nature is appropriate, to one that is available at the early stages of a foreign incursion or terrorist investigation, which in that case would necessarily take up and capture and involve people and affect people's lives who are not necessarily of any particular risk.

Submitters to the Parliamentary Joint Committee on Intelligence and Security inquiry into the bill suggested that if enacted this bill would mean control orders could be used in a much broader range of situations in the early stages, rather than as a last resort. Submitters included the Law Council of Australia and the Gilbert and Tobin Centre for Public Law—acknowledged experts in this complex and difficult area of law. Many other submission makers opposed any extension of the control order regime, including the Australian Human Rights Commission and Civil Liberties Australia. So the Greens do not stand here on our own; we have the support of many organisations throughout Australia, and we are taking note and heeding the position and the advice and the concerns that have been raised by them.

Previously, the Independent National Security Legislation Monitor also recommended that the control order regime be repealed and replaced with a new regime that would apply only to persons previously convicted of involvement in or support for terrorist activity. These amendments are consistent with these recommendations. Because it is very clear that the opposition supports the government's legislation in this regard we are not seeking to revoke the control order regime, but these Australian Greens amendments are reasonable amendments to ensure that that nexus between risk and coercive action is stronger and clearer in a bid to support human rights in Australia.


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