Thursday, 12 August 2021
Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021; Second Reading
I rise to sum up the debate on the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021. Protecting the Australian community from the evolving threat of terrorism is and will continue to be among the Morrison government's highest priorities. This bill will provide for the continuation of key counterterrorism powers to keep Australians safe. The declared areas offence is an important part of the Morrison government's efforts to stop the flow of foreign fighters to overseas conflict zones and to mitigate the risk that returning foreign fighters pose to Australians. Control orders and preventative detention orders are important tools used to prevent terrorist acts and manage the risk posed by persons who continue to present a risk to the community.
The emergency stop, search and seizure powers ensure that police are able to respond consistently and effectively to a terrorist incident or threat. The extension of the reporting date for the Independent National Security Legislation Monitor to review division 105A of the Criminal Code will enable the monitor to engage in interstate consultations which were disrupted, as I think we all know, by COVID-19 travel restrictions and to provide a greater body of evidence to draw upon in his review of the practical operation of the provisions.
The Parliamentary Joint Committee on Intelligence and Security is currently conducting a statutory review of control orders, preventative detention orders and the stop, search and seizure powers. This bill ensures that these powers do not cease while this important review is going on. The committee's separate review of the declared areas provisions was tabled on 25 February 2021. This bill implements key recommendations made by the committee in this review, including that the Criminal Code Act 1995 be amended to provide that the PJCIS may review the operation, effectiveness and proportionality of the declared areas provisions by 7 January 2024, ahead of the new sunsetting date of 7 September 2024.
I note that the committee also recommended—and I note that the opposition has moved a second reading amendment in this regard—that the Criminal Code Act 1995 be amended to allow Australian citizens to request an exemption from the Minister for Foreign Affairs to travel to a declared area for reasons not listed in section 119(2) of the act but which are not otherwise illegitimate under Australian law. The government does not support this proposal. It is unnecessary, because the legislation already provides for a range of carefully defined exemptions, including for bona fide visits to family members, journalism, a range of official duties and the provision of humanitarian aid. There is also an ability to prescribe additional exemptions through regulations.
The government is not aware of any cases where a person has sought to travel to a declared area for a reason otherwise legitimate under Australian law and was unable to do so to the current scope of legitimate purpose exemptions. The proposal would create a scheme which would undermine the intent of the legislation, which is to keep Australians safe and prevent travel to extremely dangerous conflict zones where terrorist groups are active. The government has strong concerns that if such a scheme were put in place it could not be effectively implemented and monitored, and it would directly contradict the government's approach to travel advice. The government would have limited information to assess an exemption application, including to consider whether the intended travel was for a genuine reason. Moreover, the time and resources required to obtain information to assess an application would be significant and would divert security and intelligence resources from national security priorities. In putting forward this proposal, the committee recommended that the Minister for Foreign Affairs' decision to grant or not to grant an exemption be exempted from merits review. However, decisions made by the foreign minister, even if exempt from merits review, would still be reviewable by the courts.
There would also be significant practical difficulties in monitoring the movements of a person authorised to travel to a declared area, and it would be difficult to ascertain whether a person had complied with any conditions to which their travel authorisation was subject. Declared areas are, by their nature, dangerous conflict zones and persons who travel there do so at significant risk to their personal safety. The government sees no rationale for creating a scheme of this kind, which runs counter to the policy intent of the provisions and gives rise to significant practical challenges. Given we are not aware of any real-world instances where a person has been prevented from travelling for legitimate reasons, it is safe to conclude that such a scheme would result in little benefit for the cost required to set up and implement it.
Again, in summing up the debate, I say the bill reflects the government's ongoing commitment to protecting the Australian community from the threat of terrorism and ensuring our law enforcement agencies continue to be able to manage the evolving national security threat environment. With those words, I commend the bill to the Senate.