Jim Molan (NSW, Liberal Party) Share this | Hansard source

Like other senators in this place, I rise to speak to the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021. I listened to other senators who have addressed this bill. It always restores my faith when I hear reports from the Parliamentary Joint Committee on Intelligence and Security. As explained to us by Senator Keneally, bipartisan support came out of the process within that committee. I spent some time on that committee in my first iteration within the Senate. It's an excellent committee. The way it gets bipartisan support for various bills is excellent. I was very happy to hear that Labor does support the bill.

I listened to Senator Thorpe, and I thank Senator Thorpe for her contribution. I guess there has to be an objection from the Greens in relation to this, but I would say that a very solid argument can be made that we do need both continuing detention orders and extended supervision orders. They are two quite different functions and they give an extraordinary amount of flexibility to courts and other officials in how they handle terrorists who have been incarcerated but still hold extremist views. I think these powers are justified. It is very important that we look at these powers as a whole, as Senator Thorpe explained. When you do look at them in context, I think it is possible to see that both the CDO and ESO are of value and are needed.

Senator Van spoke to us and reminded us that terrorism is a significant problem. There have been nine attacks and 21 disruptions. That's still a significant problem. Since 2001 there have been 92 convicted terrorists—50 of which are still incarcerated. He reminded us that the Director-General of ASIO spoke very strongly and openly about the impact of COVID on the terrorist situation in this country—ideologically motivated terrorist groups are there and they became more active during the COVID period. He also gave us examples of released offenders conducting terrorist activities. So I think that this is very relevant to every aspect of our life.

The government is well and truly committed to ensuring the safety and security of all Australians. As we've seen and as we were reminded by Senator Van, the recent terrorist attacks in New Zealand, as well as the 2019 London Bridge attack and the 2020 Streatham attack in the UK, convicted terrorist offenders continue to pose a risk to the community at the end of their sentence. This bill enhances the safety and security of every Australian by creating what's been explained to us this evening, extended supervision orders, ESOs, to ensure that high-risk terrorist offenders can be appropriately managed in the community at the end of their custodial sentence.

Part 1 of schedule 1 of the bill creates an extended supervision order scheme, for high-risk terrorist offenders, in division 105A of the Criminal Code. A state or territory supreme court would be able to make an ESO in relation to a convicted high-risk terrorist if satisfied, on the balance of probabilities, that the offender poses an unacceptable risk of committing a serious terrorism offence if released into the community at the end of their sentence. Under an ESO the court may impose any conditions that it is satisfied are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from unacceptable risk. ESOs would provide a less restrictive option—and this is the key for the Greens—if the court is not satisfied that a continuing detention order is necessary.

It's important to realise that with the balances that exist in this bill the state or territory supreme court will be able to impose an ESO for up to three years at a time, if the court is satisfied, as I mentioned before, on the balance of probabilities, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence. One of the real benefits of this bill is that the court can impose any condition it likes, on an offender, that it considers proportionate to the risk the offender poses.

Part 2 of schedule 1 amends the Crimes Act 1914, which relates to surveillance devices—and is referred to as the Surveillance Devices Act, SD Act—and the Telecommunications (Interception and Access) Act 1979 to extend the existing surveillance and monitoring powers that are available for control orders to apply to ESOs, including search warrants and warrants for various types of electronic surveillance. Law enforcement agencies will also be able to seek electronic surveillance warrants under the SD Act, to inform the AFP minister's decision whether to apply for an ESO or a CDO.

Part 2 of schedule 1 also amends the National Security Information (Criminal and Civil Proceedings) Act 2004 to extend the court-only evidence provisions and the special advocate scheme that applies in control orders proceedings to ESO proceedings. It also amends the Administrative Decisions (Judicial Review) Act 1977 to exempt decisions made by the AFP minister under division 105A of the Criminal Code from judicial review under that act and to the Australian Security Intelligence Organisation Act 1979 to confirm that a condition imposed by an ESO or an action relating to electronic monitoring is not a prescribed administrative action for the purpose of the definition of an adverse security assessment under the act.

The bill also provides agencies, therefore, with the necessary tools not just to apply ESOs but to monitor compliance with those orders and to protect sensitive, national security information within ESO proceedings. The Parliamentary Joint Committee on Intelligence and Security has considered the bill and made 11 recommendations. The government is accepting 10 of those in full, in part or in principle. There is a part 3 to the bill, which makes minor consequential amendments to the Crimes Act to reflect the creation of ESOs.

Schedule 2 of the bill contains amendments to provisions introduced by the Telecommunications Legislation Amendment (International Production Orders) Bill 2020, referred to as the IPO bill—international production orders. The IPO bill was passed by both houses on 24 June this year and received royal assent on 23 July. As the IPO bill was in parliament at the same time as the ESO bill, it was necessary to draft contingent amendments in this way. The IPO bill was introduced for a framework to facilitate Australia entering into cross-border access to data agreements with foreign countries for an effective and efficient pathway for Australian law enforcement agencies to obtain communications data and vice versa. The proposed Australia-United States CLOUD Act agreement is an example of this.

This bill will amend the IPO framework to enable law enforcement agencies to obtain an international production order for the purpose of monitoring compliance with an ESO. The use and disclosure framework will also be amended to facilitate the use of information collected under an international production order to be used when making an application for a CDO or an ESO.

This is a good bill. It's a bill which has function and which is relevant. Even in the context of everything else this government has produced to counter terrorism over many years, it's an adjunct to those things and I commend this bill to the Senate.