Senate debates

Monday, 15 November 2010

National Security Legislation Amendment Bill 2010; Parliamentary Joint Committee on Law Enforcement Bill 2010

Second Reading

Debate resumed from 25 October, on motion by Senator Sherry:

That these bills be now read a second time.

1:38 pm

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | | Hansard source

I take this opportunity to state the coalition’s position on these two important bills, the National Security Legislation Amendment Bill 2010 and the Parliamentary Joint Committee on Law Enforcement Bill 2010. On 12 August 2009, the Attorney-General released a discussion paper on proposed reforms to Australia’s counterterrorism and national security legislation. The majority of the amendments proposed in these bills arise from the recommendations of independent and parliamentary reviews of aspects of the national security regime over the past three years. In particular, these are: the Clarke inquiry into the case of Dr Mohamed Haneef, which reported in November 2008; the report of the inquiry by the Parliamentary Joint Committee on Intelligence and Security into the proscription of terrorist organisations in September 2007; the Parliamentary Joint Committee on Intelligence and Security’s report, Review of Security and Counter Terrorism Legislation, in December 2006; as well as the report of the review of sedition laws in Australia by the Australian Law Reform Commission, also in 2006. This bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 17 June. With the exception of two substantive matters, which I will mention in a moment, the committee recommended that the legislation be passed.

The bill proposes amendments to the legislation in four principal areas: firstly, in relation to treason, sedition and terrorism offences; secondly, in relation to powers to investigate terrorism and serious crime; thirdly, the listing and proscription of terrorist organisations; and, fourthly, the protection of national security information in court proceedings. In relation to the first of those matters, the bill proposes that the offence of treason in the Criminal Code be amended by confining the offence to those who owe allegiance to Australia or have voluntarily placed themselves under Australia’s protection, and clarifying that the offence of assisting the enemy refers to material assistance.

The offence of sedition is proposed to be renamed ‘urging violence’, and includes urging the overthrow of the constitutional government and urging interference with parliamentary elections. These provisions will require an intention that force or violence will be used. The renaming of the offence of sedition—which is, as you would know, Mr Acting Deputy President, an ancient crime in the British criminal law—is not intended by the bill to water down the offence, but merely to contemporise the usage in the descriptors of the matters constituting the offence.

As well, a new offence is proposed, of urging the use of force or violence against a group distinguished by race, religion, nationality, national origin or political opinion. There is a lesser sense if the force does not threaten the peace, order and good government of the Commonwealth. The defence of ‘acts done in good faith’ is clarified by making it relevant that acts were done in the context of artistic work, genuine academic or scientific discourse, or in the dissemination of news or current affairs.

The Senate committee recommended that this clarification not contain an element of good faith in itself, and that recommendation has been adopted by the government. In this respect, the opposition is satisfied that the occasionally competing imperatives of protecting freedom of speech—sometimes, freedom of speech vigorously expressed by groups at the margins of society (sometimes, radical groups who are no friends of democracy but whose freedom of speech our democracy nevertheless respects)—on the one hand, and protecting the institutions of the state from direct threat to their integrity or maintenance, on the other hand, has been achieved.

It is proposed to repeal the offences relating to unlawful associations. These are subsumed by the terrorist organisation laws and, therefore, are outmoded.

Amendments to the definition of a terrorist act are proposed to include the United Nations as the target of an act. The definition of harm intended to be caused by a terrorist act is extended to include psychological harm. May I pause there to observe that this is a piece of law reform which has been long in coming. When we think that the word ‘terrorism’ literally means ‘causing terror through the threat or actuality of violence’, terrorism is specifically defined etymologically by reference to a state of mind. The objective terrorists seek to achieve, in the immediate sense, is to cause violence and harm, and sometimes death, to targets. But their broader objective is to cause fear and terror to populations at large, who must live their lives in the constant, gnawing doubt that they, too, may be the victims of a terrorist strike. For that reason, it has always seemed to me that extending the definition of terrorism to include psychological harm is not only appropriate but essential, as it goes to the very state of mind which terrorists seek to create—thereby to disable citizens in the peaceful going about of their ordinary lives.

A new offence of committing a terrorist hoax is proposed to the maximum penalty of imprisonment of 10 years. The offence of advocating the doing of a terrorist act will be amended to provide that the prosecution must establish that there is a substantial risk that it would lead another person to commit a terrorist act. That is not a weakening of the law. It is done to bring it into line with the concept of risk as elsewhere defined in the Criminal Code. As I said earlier, the offence of providing support to terrorist organisations is clarified to mean providing material support.

I turn to the amendments to the Crimes Act dealing with powers to investigate terrorism and serious crime. These arise from recent operational experience, in particular by the Australian Federal Police. The division relating to powers of detention would be separated into two subdivisions to deal with terrorism and non-terrorism offences. In the case of terrorism offences, the maximum length of time that a person can be detained during an investigation period is proposed as seven days. The majority of the Senate committee recommended a three-day limit. The Liberal senators recommended seven days based on evidence from the Australian Federal Police and the Australian Crime Commission. I am pleased to say the government has seen the wisdom of adopting the stricter approach urged by the Liberal senators. The provisions relating to re-entry under an existing search warrant will be amended to permit re-entry within one hour in normal circumstances and re-entry within 12 hours in an emergency situation. In addition, it is proposed that entry without warrant be permitted in emergency situations when investigating terrorism.

I pause there to say the idea of entry without warrant is a departure from traditional British legal principles, which Australia has always held dear. But there are occasions when entry without warrant is justified, in our view, where there is an immediate and credible threat of terrorist conduct which could take place while the warrant is being sought. I think most people would regard the urgent circumstances in which a suspension of the requirement to obtain a warrant is, in this case, justified. It is proposed that there be a right of appeal both for prosecutors and defendants against bail decisions if there are exceptional circumstances. Minor amendments are proposed to provide full listing and proscription of terrorist organisations if the minister is satisfied of the proscribed matters on reasonable grounds. Listings would be reviewed every three years.

Let me finally turn to the amendments to the National Security Information (Criminal and Civil Proceedings) Act 2004. The purpose of that act is to protect information from disclosure in federal criminal proceedings and its civil court proceedings where the disclosure would be likely to prejudice Australia’s national security. Once again, this is an exception to orthodox and traditional legal principles; that is, that justice be disposed of transparently in public courts, which is necessitated by the circumstances that in some criminal proceedings arising from terrorism and terrorism related offences it is necessary to keep national security information confidential. I think that exception is a matter of common sense and speaks for itself, although like all exceptions from orthodox legal and constitutional principles it is an exception which we hope is available sparingly. The act has been invoked some 38 times and the experience informs some relatively minor although lengthy amendments principally to clarify that notification must be made to a party’s legal representatives and to streamline the definition of situations in which disclosure will be permitted. In some situations, answers to questions in court may be made in writing.

Despite this being a lengthy bill, there appear to be few proposals that are genuinely controversial or that demonstrably strengthen or weaken the national security laws to any significant degree. Most of the proposals are procedural while others clarify the applicable legal test. In some cases, which I have dwelt upon in this speech, there are departures from existing legal principles which have been forced upon us by the necessitous circumstances arising from a new and uniquely dangerous threat.

I have considered the amendments to the bill circulated by the Greens. These amendments were not recommended by the Legal and Constitutional Affairs Committee and I foreshadow, with respect to Senator Ludlam, they do not have the coalition’s support. I should mention that the security briefings that have been provided to me indicate some extremely disturbing emerging threats. This is not the time to open any window of opportunity to enable those threats to be actualised.

Finally, I turn to theParliamentary Joint Committee on Law Enforcement Bill 2010. The establishment of that committee was a proposal of the discussion paper on proposed reforms to counterterrorism and national security legislation. This bill was introduced with the National Security Legislation Amendment Bill 2010. The proposed committee will replace and extend the functions of the current Parliamentary Joint Committee on the Australian Crime Commission. The principal extension is the inclusion of the Australian Federal Police under the jurisdiction of this committee. The committee will be asked to examine trends and changes in criminal activities, practices and methods and to report on any desirable changes to the function, structure, powers and procedures of the Australian Crime Commission or the Australian Federal Police. It will also inquire into any question in connection with its functions that is referred to it by either house of the parliament. The coalition does not consider the bill to be controversial. It was referred to the Senate Legal and Constitutional Affairs Committee as a cognate bill with the National Security Legislation Amendment Bill 2010 and the committee unanimously recommended its passage on 17 June 2010. Both bills, amended following the report of the Senate committee, have the coalition’s support and I commend them to the Senate.

1:51 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

If one phrase could sum up where this debate on the National Security Legislation Amendment Bill 2010 and the Parliamentary Joint Committee on Law Enforcement Bill 2010 finds us today it would have to be ‘missed opportunity’. This process has been turning now for about two years, depending on what you consider the starting point. Senator Brandis said in his speech that nothing in the National Security Legislation Amendment Bill is particularly controversial and that we are not really extending or withdrawing any powers.

I will take issue with Senator Brandis on a couple of matters. I think there are some things in this legislation that are quite striking in their extension of the powers; but perhaps Senator Brandis has got the general gist about right—that this is a proposal to stand still and effectively do nothing. An enormous amount of work has been put in by a lot of people—in the legal community and more broadly—who are very close to these issues, about the gradual descent of Australia into what is effectively a surveillance state. Laws were passed in the heat of the moment after the horrific attacks on 11 September 2001 in the United States, and subsequent attacks, and these laws were not only badly drafted or never even enacted or used; they also clamped down on the rights of Australians to go about their lives, without there being any consequential increase in security or safety, and that case has in fact never been made.

I want to give the Senate one example of how dramatically out of balance the debate has become. Right at the moment on the shores of Lake Burley Griffin—and I know this has been the subject of some local controversy right here in Canberra—a gigantic complex is being built, costing about $585 million, in which we are going to house ASIO. I do not know exactly what it is about this secret agency that led them to believe they needed this enormous complex right in the Parliamentary Triangle on the shore of the lake, that will probably be visible from space, but there you go. The secret agency is coming out of the closet, it is tripling its staff numbers and its budget has increased more than sixfold to $438 million per year. That is ASIO. There is not a single amendment—not a word—in this bill that the government has brought forward. Despite a lot of evidence from people who are very close to these issues we have not touched ASIO’s act. There is not a single amendment in this legislation in response to many of the concerns that were raised over the last couple of years. ASIO’s budget has been multiplied by six and its staffing has been increased threefold. Similar things are happening to ASIS and to the Office of National Assessments so that the national security budget—now totalling about $4 billion—is going on against the backdrop of this process, which has proceeded at a snail’s pace. I will talk in a bit more detail about what it has been like working through this process under the current government and the one directly before it.

At the same time as that extraordinary increase in resources and staffing is going on, we have the office known as the Independent National Security Legislation Monitor, which is an office that I have spoken of a couple of times. This is the person who would be assessing whether these laws of terror, every single word of them that are still on the books from the Howard-Ruddock era, are actually necessary or proportionate to the threats that we face—whether or not they make us safer. This is to be a part-time officer, supported by two part-time staff, I believe, out of the Prime Minister’s office.

It took the Senate about a year, I suppose, on the motion of Senator Judith Troeth, to pass a bill, with the support of the Greens—and with several amendments of the Greens—to bring this office into being. That was quashed in the House of Representatives. The government swatted that aside and said that they wanted to do it their own way. They came back with a vastly more feeble bill several months later, and eventually passed it. Six months after the passage of that legislation through this parliament, that officer has still not been appointed. I think that gives us, quite starkly, a very sound idea of where this government’s priorities lie: massive budget increases for the national security estate, the surveillance estate and the agencies that are tasked with protecting our security and our safety. But the officer, the one part-timer, whose job it would be to assess whether these laws are necessary or proportionate or whether they are doing anything at all to make us safer, has not been appointed six months after this legislation was passed through the Senate. That is how asymmetrical and out of balance this debate has become.

When these laws were passed, we do not believe that the right balance was struck between providing for national security, which is one of the most important responsibilities of the government, and the protection of our fundamental human rights, which is one of the other most important responsibilities of the Australian government. The balance was not struck originally and therefore, in this do-nothing bill, the balance is being struck inappropriately as well.

Before we go to question time, I want to put firmly on the record and remind the chamber, as I have done on many occasions before: nonviolence is one of the four core pillars of the Australian Greens policy platform. We strongly oppose the presence of any form of violent extremism within Australia. We are also committed to the principle of democracy and to the civil liberties that accompany a strong democratic system of government. We acknowledge the very real threats—faced by security agencies and by Australians here in this country and also overseas—that violent acts of terrorism pose to us and the damage that such acts claim to have on our democratic institutions and on our civil liberties. It is a very important principle on which the Australian Greens were formed, and we therefore condemn outright any form of violent extremism or violence in the pursuit of political aims—which of course is the reason that we are legislating.

We are opposed to the corrosion of democratic rights and civil liberties not only through violent means but also through nonviolent, or covert, means. We support the fundamental right to oppose government and corporate conduct through peaceful protest and through civil disobedience and therefore do not support any attempt to restrict legitimate political dissent in this country.

We believe that in responding to terrorism we must address the underlying causes of violent extremism by acting in conjunction with neighbouring countries and with the international community. Factors, including poverty and social exclusion, which lead to the vulnerable being susceptible to recruitment from extremist organisations, must be addressed both in Australia and abroad. I will acknowledge that in many instances, particularly on the publication of the white paper, the language had shifted very strongly from the Howard government’s ‘war on everything’ terminology to something that was much more nuanced and did acknowledge some of the underlying causes of the violence that we are seeking to combat. However, we believe that the restriction of fundamental civil liberties in pursuit of eradicating the threat of terrorism can be profoundly counterproductive and that the right balance must be struck between security and the protection of civil liberties and democratic rights that Australia has long desired to uphold. If Australians are prepared to give up fundamental civil liberties and their democratic rights, they will effectively be furthering the goals of the very extremist organisations that we seek to confront.

This legislation has been the subject of a public consultation process, with the release of an exposure draft of the bills in August last year. This is a process that the Australian government supported, and I would say to all government ministers that providing an exposure draft giving the public and the parliament an idea of the government’s intention to legislate is almost always a good idea, and this is a process that we supported. But then you have to hope that the government will listen to what is being proposed when people provide a response to an exposure draft of a bill. So we supported the process as something positive—and it is something that we engage with—as did many people in the legal profession and in civil society, on the understanding that perhaps the government would listen to some of the views that were put forward. Unfortunately, while the process for reviewing Australia’s antiterrorism legislation has improved, the outcome has remained exactly the same. Many of the worst aspects of the antiterrorism laws introduced by the Howard government remain in force and are even entrenched by the legislation that we are debating today.

Debate interrupted.