Wednesday, 26 November 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014; In Committee
I will turn to the substantive issue in a moment, but may I say: Senator Wright, the government has always understood that there is a variety of views about this matter. It advances the debate not one iota, with respect, for senators to say, 'Well, this particular expert has a different view'. I know the Gilbert and Tobin Law Centre very well—I have addressed it I think four times in the last decade or so—and I acknowledge that it does have a different view. There are others who have a different view, but you have, if I may say so, Senator, a rather touching faith that merely because one particular university institution has a particular view, then that view is conclusive. They are a voice in the debate.
What I can tell you, Senator Wright, is, coming from the side of politics that have built into their DNA an innate suspicion of state power, we have gone about this task with a presumption against expanding the power of the states. So you can be reassured and the good people at the Gilbert and Tobin Law Centre and all of the other worthy people who share the view that you have just propounded—it is a minority view obviously—can be reassured that in approaching this task as a liberal, as a classical liberal who suspects the power of the state and does not wish to see it expanded, we have been extremely careful not to overreach, and only to include in the bill those provisions that we were persuaded were the minimum necessary in order to protect public safety or to have an appropriately comprehensive regime of protection for the public.
Coming to your amendments, Senator Wright, amendments (1), (2) and (7) would in three places omit the words 'suspects on reasonable grounds that the order in the terms to be requested would substantially assist in preventing the provision of support for or the facilitation of a terrorist act'. By seeking to omit those words and substitute for them the words in your amendment in the three places in the bill, what you do is to say that control orders ought not to be available where to issue a control order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act. Frankly, I do not think the public would agree with you.
I understand you have a philosophical objection to control orders themselves. But we are not debating the broad point now, we are debating the narrow point: within the control order regime, if all other conditions are satisfied, ought there to be a jurisdiction to issue a control order where to do so would substantially assist in preventing the provision of support for or the facilitation of a terrorist act? Instead, what you and your Greens people would have us do is to have a control order issued where it was suspected on reasonable grounds that the person had provided support for or otherwise facilitated a terrorist act. If there is enough evidence that a person has provided support for or has facilitated a terrorist act, you would not be issuing a control order, you would be issuing an arrest warrant because they would have committed the crime.
The control order regime, importantly, operates prospectively. Once the offence has been committed, we are talking about terrorism here. We are talking about the destruction of lives, the destruction of property and the destruction of systems like financial systems or communication systems in the furtherance of a terrorist act. Once the conduct has occurred it is too late. That is why we have to move out of this criminal law paradigm that thinks that this is about punishment for offences that have been committed.
The purpose of counter-terrorism policy and counter-terrorism law is to provide the apparatus to interdict so as to prevent the occurrence of the terrorist act. Control orders, judiciously hedged by the many safeguards with which they are hedged, are a very important part of that apparatus. Senator Wright, with all due respect to you, once you say we should only have this jurisdiction once that about which we are concerned has already happened, you have missed the boat, if I can use the vernacular.
These orders have to have the capacity to operate prospectively. Leaving aside your philosophical objection to whether there should be control orders at all, do you really think, Senator Wright, if I may ask you rhetorically, that if we are going to have control orders, it would be a good idea to have them available to substantially assist in preventing the provision of support for or the facilitation of a terrorist act, which is what the purpose of the amendment is which you would seek to defeat? I do not think the public would agree with you. If you thought about it carefully, I do not think you would even agree with yourself.
These orders are unusual orders. They are invasive, which is why they need to be hedged in by safeguards, by high thresholds, by parliamentary review. All of those are part of the architecture of this legislation. Thus far in Australia there have only been two control orders issued under federal legislation, and I think there were recently one or two issued under the corresponding New South Wales state legislation. But so sparingly and carefully have these control orders been used that in a decade they have only been resorted to twice. So, to those like my friends at the Gilbert + Tobin Centre for Public Law who are fearful that this is invasive of liberty, it is invasive of liberty, potentially, but only so seldom because caveated by so many qualifications and thresholds and tests that need to be satisfied, only in circumstances where they are actually serviceable to prevent the commission of a terrorist crime. That is why we are asking the parliament—and the opposition, I am pleased to say, agrees with us—to agree that they ought to extend to conduct by which, on reasonable grounds, there is a belief or suspicion that the conduct will constitute the facilitation of a terrorist crime.