David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I oppose this bill—the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016—because it significantly, permanently and unjustifiably expands the power of the Commonwealth government to hold people without charge.

The Commonwealth government introduced preventative detention orders in 2005 to authorise the holding of a person without charge for 48 hours. The power can be used in two circumstances. First, the power can be used if detention is reasonably necessary to preserve evidence of a terrorist act that occurred in the last 28 days. Second, the power can be used if detention is reasonably necessary to substantially assist in preventing a terrorist act, on the proviso that the terrorist act 'is imminent and is expected to occur, in any event, at some time in the next 14 days'. The wisdom of allowing preventative detention orders in this second circumstance is debatable, given that authorities have significant power to engage in surveillance, authorities with a skerrick of evidence can detain people by charging them, and detention without charge is a violation of a fundamental right.

But at least this preventative detention is detention—it can only occur on the proviso that a terrorist act is imminent and is expected to occur. Unfortunately, the government now wants to get rid of this proviso. In its place, the government will simply require that relevant officers 'suspect on reasonable grounds that a terrorist act is capable of being carried out and could occur within the next 14 days'. Note the replacement of 'is' with 'suspect'. I can suspect that someone is out to get me, but that does not mean there is someone out to get me. Note also the replacement of the word 'imminent' with 'could'. The difference between these words is as stark as the difference between winning the lottery and merely buying a lotto ticket. If you win the lottery, a massive boost to your wealth is imminent. If you merely buy a lotto ticket then it is indeed the case that a massive boost to your wealth could occur, but it is far from likely and definitely not certain.

The government has not explained why it needs a power to detain people without charge when a terrorist act is not imminent. Instead it has the gall to say that its bill is merely clarifying the law rather than changing it. We should see the pattern here. First, the scaremongers persuade the parliament to enact preventative detention powers by citing all the qualifications and limitations on those powers. Then, with each amendment, these qualifications and limitations get pared back—all in the name of clarification. There is little public sympathy for people who could find themselves in preventative detention, because it is common to assume that police would only ever chose to detain bad guys and would never make mistakes about who is a bad guy and who is not. So when the police asked for beefed up preventative detention powers I can understand why the coalition agreed, and Labor has not resisted. But it is a dereliction of their duty to the public nonetheless.

There are many other retrograde provisions in this bill. The bill ramps up search and surveillance powers used against people who are subject to a control order and denies them access to the information that put them under a control order in the first place. The bill effectively bans computer games that are said to promote terrorism, even though there is no evidence that playing a game makes someone act out the game. The bill makes it easier to get a search warrant and delay telling the property owner about the search. The bill bans the advocacy of genocide. That hurts our ability to identify people with genocidal views and to rebut those views—and inciting genocide is already a crime. So, sadly, once again I oppose the government's counterterrorism legislation and, once again, I find myself in a minority with the Greens. Will the government please give me a break?

Even when the government introduces a good provision it does so in a half-hearted fashion—for instance, this bill amends section 35P of the ASIO Act to reduce penalties for outsiders like journalists who disclose information about special intelligence operations where the information does not endanger health or safety or prejudice an operation. The Independent National Security Legislation Monitor was asked to review 35P, and he recommended this reduction. The reduction is a good thing and is something I called for when 35P was first debated two years ago, but the Senate was full of deaf ears. They were yes-men and yes-women when the government introduced the lengthy penalties, and, as no-one is objecting to this bill's lessening of the penalties, they are clearly yes-men and yes-women now.

The reduction in penalties is a good thing, but it is half-arsed. The offences in 35P for disclosing information about ASIO's special intelligence operations were based on offences for disclosing information about the AFP's controlled operations. Now the government is reducing penalties for journalists when it comes to disclosures about special intelligence operations involving ASIO but doing nothing about the penalties for journalists when it comes to disclosures about the AFP's controlled operations. The logic of penalties for journalists being lower than penalties for insiders is the same whether we are talking about ASIO or the AFP.

But the government is a logic-free zone when it comes to civil liberties and national security. Logically, this bill should be substantially altered, if passed at all. We deserve better. My constructive proposal is to make the coercive aspects subject to a sunset clause of 10 years. In other words, unless re-enacted, they will lapse automatically in 10 years. That will give the government, Labor and the law enforcement agencies plenty of time to determine, objectively rather than anecdotally, whether this constant chipping away at our liberty is actually making us safer and whether, just as we were told there would always be reds under our beds, claims that the threat of Islamic terrorism will be always with us. I am dubious about whether we need this law, but I am certain that we do not need it on the books permanently.