Senate debates

Thursday, 12 August 2021


Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021; Second Reading

11:46 am

Photo of Lidia ThorpeLidia Thorpe (Victoria, Australian Greens) Share this | Hansard source

[by video link] Here we go again, because the Morrison government didn't do its job again all of us here are now expected to pick up the slack. I rise to speak on the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021. There are three particular measures in this bill that are about to sunset. The 'do nothing Morrison government' did not do its job. That's why we're here, right? The Prime Minister forgot that the terrorism legislation was about to expire. That's why we're all here debating why we should let the kid that came with his homework late, didn't do the reading, didn't do the research—we are here to now discuss the problems with it that Labor are supporting to just push through. It's unbelievable. The 'do nothing Morrison government' obviously hasn't done their job, and Labor can't be bothered either, so let's just rush it through.

You've only just realised that these provisions are about to expire. The Prime Minister just realised they are about to expire. Now you are scrambling to do something about it. What kind of leadership is that? Who is running the country? But that's how you operate: do nothing until someone makes it an issue. The Greens are the only ones that are going to pick it up and actually talk to the human rights body, and those that are interested and understand the problems with this bill. I'm not sure whether Labor have picked up the phone or even the government. But obviously you haven't done your homework, you haven't done your job and you're too lazy to even have a conversation about it and allow further scrutiny.

Anyway, the three provisions in this bill that are about to expire, and I do mean that they're about to expire in a matter of days, are: (1) the declared areas provisions in section 119 of the Criminal Code (2) the control order regime in division 104 of the Criminal Code and (3) the preventative detention orders regime in division 105, for a further 15 months. There are also amendments to the Intelligence Services Act as well as the Crimes Act to extend the operation of the stop, search and seizure powers in division 3A part IAA. I will deal with these in that order.

Section 119.2 of the Criminal Code makes it an offence to enter or remain in an area declared by the Minister for Foreign Affairs, who is also the 'Prime Minister for Women', apparently. I note that a person is still allowed to travel to those declared areas for legitimate purposes, like providing aid or performing official duties, either for governments of this country or for international organisations like the International Committee of the Red Cross. Journalists are also able to travel to declared areas, if they are acting in a professional capacity, as are people visiting or reuniting with family. These provisions were part of a number of legislative measures that were introduced in the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014. Labor, you should listen, because you haven't done your homework. Understand what the people are saying and what the experts are saying; that's who we're listening to.

The explanatory memorandum of that act did not really articulate why the length of the sunset provisions was prescribed. In fact, the former Independent National Security Legislation Monitor Bret Walker SC is on the record on this matter. Listen, Labor:

The former INSLM stated that he found sunset provisions problematic and that a period of ten years appeared arbitrary, stating that sunset clauses should either be 'really very short' or not used at all—

Labor, wake up!—

in which case there would be 'trust in future parliaments to amend, repeal, leave in force laws as the future parliaments see fit in light of circumstances that cannot possibly be predicted at the moment'.

Are you awake, Labor?

There are some key concerns with the declared areas provisions. I expect this from the Libs—but, seriously! The Australian Human Rights Commission—I'll send you their number if you like—has made clear that the expectations should be reframed to operate more broadly, instead of being a shopping list of purposes, as appears now. Human Rights Watch—I'll give you their number, too, Labor—also expressed concern that the proposed list of exemptions fails to recognise that, during times of war and conflict, there are a number of legitimate reasons for people to travel to areas involved in armed conflict. These include: doing business; selling property; working for a civil society organisation; running or voting in an election; and for religious reasons. Where are you, Labor? Get out from under that desk. Like pilgrimages—I struggle with that word. I haven't been totally decolonised. The English language is very violent sometimes. For example, Labor, during the Sri Lankan conflict, a number of Australian Tamils returned to sell their possessions but then assisted civil society groups, advocating against the war, or were forcibly held by the Tamil Tigers. None of these acts are covered by the exemptions at the moment, and they should be, seriously. The offence of remaining in a declared area is particularly problematic because, when an area becomes a declared area, it's an Australian citizen or resident or a holder of an Australian visa who has to leave the area. An area could be an entire country.

So, instead of fixing this flawed legislation and rolling your sleeves up and doing what's right for the people, Labor—I expected it from the Libs, but I didn't expect it from you fellas—are seeking to extend the sunset clause until well past the election. They want to completely disregard the processes and procedures of making laws, including committee review and proper debate and scrutiny in the Senate and the other place. That alone should cause everyone concern. It's not clear that the government has fixed the issue in the legislation. Instead, it's trying to kick it down the road for, hopefully, a new government to deal with. But, jeez, you fellas have got to do some work and do the right thing by the people.

But I say no. The control order regime in division 104 of the Criminal Code Act allows a court to impose obligations, prohibitions and restriction on a person. Restrictions may be imposed on the basis of a lower standard of proof, on the 'balance of probabilities', instead of 'beyond reasonable doubt', and even on the basis of secret evidence. The police are not obligated to provide any information that would prejudice national security. These control orders can be put on children as young as 14. Labor, I'm telling everyone that you are supporting this—children as young as 14! You're not our mates.

Only 20 control orders have been issued to date. The Morrison government is considering changes to the control order and preventative detention framework to make it even worse than it is now, with the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020. Human Rights Watch—got the number here—has expressed concern that 'control orders are imposed on individuals in a cumulative manner so as to be tantamount to indefinite detention'. Australia's Independent National Security Legislation Monitor previously recommended the repeal of control order provisions. If only the Morrison government, and their buddies on the other side, were paying attention!

The preventative detention orders regime under division 105 of the Criminal Code Act allows a person to be taken into custody for up to two days to prevent a terrorist attack or for preserving evidence. The issuing authority for an initial order is a senior AFP member. Since the orders were legislated, they have never been used—they have never been used, in the whole time—yet you want to extend them? Since the orders were legislated, they haven't been used. I need people to understand that. Labor and the Libs want to extend something that's never been used before. They don't want to take it back to the people; they just want to rush it through.

We had terrorists, literally Neo-Nazis, burning crosses on my country, Gariwerd—Gunditjmara, Warrnambool. The colonisers call it Halls Gap. It's called Gariwerd. Those terrorists and Neo-Nazis danced on my ancestors and burnt a cross. What happened to those fellas? Nothing. If these orders are so good at preventing terrorism, they would have been working, but they haven't been.

Stop, search and seizure powers in division 3A of part IAA of the Crimes Act allow a police officer to stop, question and search people as well as seize items without a warrant, as long as the police officer suspects that someone is committing or about to commit a terrorist act. That says a lot about human rights. These powers have not been used at all since they were legislated, but you want to extend them anyway. The Greens don't support this. The Greens are for the people, for grassroots democracy. I've given you 15 months to come back and fix some of these issues, particularly in regard to declared areas provisions. I need the Senate to support this so that our people can have a say. All Australians need to have a say, and Liberal and Labor are stopping that from happening. I can keep going if you want.


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