Tuesday, 28 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; In Committee
I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill and seek leave to move all government amends together.
Leave not granted.
The CHAIRMAN: Minister, we do have the running sheet. I do not know if you want to follow it in that order.
Mr Chairman, I will follow the running sheet. I think that is a shame because, given there are so many amendments, in view of the limitation of time in the debate I am sorry to say that the Greens denial of leave to move the government's amendments and get them out of the way together means a lot of the amendments will not be able to be debated at all, in all likelihood. I seek leave to move government amendments (1) to (3) on sheet ZA358.
I move government amendments (1) to (3) on sheet ZA358:
(2) Schedule 1, item 21, page 7 (line 21), omit "it", substitute "the Director-General".
(3) Schedule 1, item 21, page 8 (lines 1 to 5), omit subsection 22A(3), substitute:
(3) If an Australian travel document of a person has been suspended under subsection (1), another request under subsection (2) relating to the person must not be made unless the grounds for suspicion mentioned in subsection (2) include information first obtained by the Director-General of Security or an officer or employee of ASIO after the end of the suspension.
(4) The Director-General of Security may, in writing, delegate his or her power under subsection (2) to a Deputy Director-General of Security (within the meaning of the Australian Security Intelligence Organisation Act 1979).
(5) In exercising power under a delegation, the delegate must comply with any directions of the Director-General of Security.
Amendments (1) to (3) implement Parliamentary Joint Committee on Intelligence and Security recommendation 26 by only allowing the director-general of security—or a deputy director-general of security, if delegated the power by the director-general—to make a request for the suspension of an Australian travel document under section 22A of the Passports Act, rather than ASIO as an organisation, as provided for in the bill. It is an amendment, essentially, of a technical character. As I say, it gives effect to PJCIS recommendation 26.
The opposition was not opposed to dealing with all of the government amendments in one batch. I will confine my comments on pretty much all of those amendments to the general comments that I will make at this stage.
The government amendments reflect the outcome of the hard work of the Labor members of the intelligence committee. We ensured full scrutiny of this bill and we insisted that the government fully implement the broad and important recommendations that the intelligence committee came to. We will support these amendments, which reflect the conclusions of the committee. It is important that amendments to legislation like this are preceded by rigorous committee consideration.
Labor's further amendments, which I will deal with when they arrive in the running sheet order, reflect concerns noted in the intelligence committee's report which have not been fully addressed by the government's response to the discrete recommendations. I indicate that the opposition will be supporting all of the government amendments.
The Australian Greens indicate that these proposed amendments from the government are positive steps forward in limiting how powers can be delegated and putting some outer limits on how long a security assessment can remain in force, but they certainly do not go as far as the Australian Greens' proposed amendments. Again, I will be dealing with those when we come to them on the running sheet.
The particular concern that we have in relation to the suspension of Australian passports is that the bill seeks to supplement existing travel document cancellation powers by empowering the minister to suspend Australian and foreign travel documents for 14 days at the request of an ASIO officer where that officer believes on reasonable grounds that the person may leave Australia to engage in conduct that might prejudice the security of Australia or a foreign country and suspension of travel documents is necessary to prevent the person from engaging in the conduct. While the Australian Greens accept that a range of experts, including the Independent National Security Legislation Monitor, have agreed that this provision is needed to fill a genuine legislative gap, we are concerned about the way that the new power has been drafted. We have concerns that the proposed new power does not fully conform to the relevant recommendations of the INSLM, which specifically recommended an initial suspension period of 48 hours which could be extended by further suspensions of up to 48 hours at a time for a maximum period of seven days. We believe that the bill, even with the amendment, would still contain insufficient safeguards to prevent ongoing multiple suspensions.
We consider that the new powers should be amended. I seek the guidance of the chair or the Clerk as to whether or not it will be possible to move the Australian Greens' amendments in this regard, as it is indicated that there is some conflict with the Australian Greens' amendments (5), (6) and (8) on sheet 7594.
I appreciate that the committee will always decide whether to agree with amendments. We will still have an opportunity to move those amendments even if these government amendments are passed—is that correct?
The TEMPORARY CHAIRMAN: That is correct.
Thank you. I will speak further to this when we get an opportunity to move our amendments.
The TEMPORARY CHAIRMAN: The question is that government amendments (1) to (3) be agreed to.
Question agreed to.
I move government amendment (4):
(4) Schedule 1, item 25, page 10 (after line 16), after subsection 48A(6), insert:
(6A) Before the end of the following periods, the Minister administering the Australian Federal Police Act 1979 must consider whether to revoke a certificate under subsection (4) (if the certificate remains in force):
(a) 12 months after it was issued;
(b) 12 months after that Minister last considered whether to revoke it.
Government amendment (4) implements recommendation 28 of the Parliamentary Joint Committee on Intelligence and Security by requiring that a certificate issued by the minister responsible for the Australian Federal Police Act under section 48A(4) of the Passports Act be reviewed within 12 months of the issuing of that certificate and then every 12 months after it has last been reviewed.
The TEMPORARY CHAIRMAN: The question is that government amendment (4) be agreed to.
Question agreed to.
I move government amendment (5):
(5) Schedule 1, item 26, page 10 (lines 25 to 27), omit the item, substitute:
26 After subsection 51(1)
(1A) The Minister may, in writing, delegate to the Secretary of the Department the Minister's power under subsection 22A(1).
Government amendment (5) implements recommendation 27 of the Parliamentary Joint Committee on Intelligence and Security by providing that the Minister for Foreign Affairs can only delegate the power to suspend a person's Australian travel documents to the Secretary of the Department of Foreign Affairs and Trade rather than delegate that power more broadly, as had been initially provided for in the bill.
The TEMPORARY CHAIRMAN: The question is that government amendment (5) be agreed to.
Question agreed to.
by leave—I move Greens' amendments (4) to (8) on sheet 7594 together:
(4) Schedule 1, item 21, page 7 (lines 17 to 19), omit subsection 22A(1), substitute:
(1) The Minister may, on request under subsection (2), suspend for up to 48 hours all Australian travel documents that have been issued to a person.
(1A) The Minister may, on request under subsection (2A), extend a suspension under subsection (1) for an additional period of 48 hours.
(1B) The Minister may extend a suspension under subsection (1) more than once, but must not do so if the extension would result in the total length of the suspension being longer than 7 days.
(5) Schedule 1, item 21, page 7 (line 20), omit "ASIO", substitute "An officer of ASIO".
(6) Schedule 1, item 21, page 7 (line 21), omit "if it suspects", substitute "if the officer suspects".
(7) Schedule 1, item 21, page 7 (after line 28), after subsection 22A(2), insert:
(2A) While the Australian travel documents issued to a person are suspended under subsection (1), an officer of ASIO may request the Minister to extend the suspension if the officer suspects on reasonable grounds that:
(a) the person may leave Australia to engage in conduct referred to in paragraph (2)(a); and
(b) it is necessary to extend the suspension in order to prevent the person from engaging in the conduct.
(8) Schedule 1, item 21, page 8 (lines 1 to 5), omit subsection 22A(3), substitute:
(3) If an Australian travel document of a person has been suspended under subsection (1), an officer of ASIO must not make another request under subsection (2) relating to the person unless the grounds for the officer's suspicion mentioned in subsection (2) include information ASIO obtained after the end of the suspension.
Note: Subsection (3) does not prevent a request for a suspension to be extended under subsection (2A) being made during the suspension.
As I indicated before, there are some concerns about the bill and, indeed, even with the amendments that have just been passed with the bill. These concerns have led the Australian Greens to recommend that the new powers be amended to provide for an initial suspension period of a maximum of 48 hours, which could be extended by further suspensions of up to 48 hours at a time for a maximum period of seven days; to remove the power for the Minister for Foreign Affairs to delegate his or her passport suspension powers; and to make it clear that a request to suspend a travel document must be made by an individual ASIO officer, so as to ensure appropriate oversight of relevant processes by the inspector-general. The expert advice which we have relied upon in supporting the position that we have brought, in terms of moving these amendments, are recommendations that have been made previously by the Independent National Security Legislation Monitor, the Inspector-General of Intelligence and Security, Law Council of Australia, the Gilbert and Tobin Centre of Public Law and the Castan Centre for Human Rights Law.
I would like to address a question to the Attorney-General in relation to the effects of the bill. The proposed new powers to suspend travel documents have the potential to seriously disrupt people's lives, particularly those who need to travel as a matter of urgency—for example, to visit a dying relative or to secure a business deal. My question is: will there be redress for those who have their travel document suspended under these powers, but are later found not to be a risk to Australia's national security, as the bill does not currently provide for that possibility occurring?
Considerations of the kind to which Senator Wright refers to are considerations that would be taken into account in making the decision whether to suspend a person's passport. I should say that this is a power that would not be exercised lightly. It would be exercised having regard to all relevant personal circumstances of the passport holder, including personal circumstances of the kind to which you refer. It will only be made if there is a clear necessity to do so for national security reasons.
These amendments proposed by the Greens would limit the power for an interim suspension of a passport only 48 hours, as Senator Wright has indicated. They would be able to be extended for additional periods of 48 hours, but no longer than one week. The committee agreed that the interim suspension power was an important and key issue and that the need to improve powers to suspend powers was flagged by the Independent National Security Legislation Monitor last year.
Labor believes the best action we can take to address foreign fighters is to stop Australian citizens ever going to fight, not only because of the damage they may two overseas but also because we know the skills and mindset they may return to Australia with. It is for these reasons that we think these powers need to be improved and we will be opposing amendment (4). With respect to amendments (5) to (8), these would alter the passport suspension process. The same points apply in part to what I have indicated in relation to amendment (4), but we note that these are important concerns being raised by the Greens.
We are, however, satisfied by the amendments reflected in the Intelligence Committee's recommendations and it is important to mention that those amendments include review of the passport suspension provisions. There is an important opportunity now to highlight, as I did in my second reading contribution, the important progress that has been made in relation to sunset clauses and review in the Intelligence Committee's recommendation. We will be opposing these Greens' amendments as well.
I might take the opportunity, if I may, to indicate the government's attitude to the Greens' amendments. These amendments will all be opposed. The government opposes Greens' amendment (4) because although the amendment would, as Senator Wright has said, implement the time period suggested by the Independent National Security Legislation Monitor; what she omitted to say is that the INSLM also noted in his report that his suggested time frames were 'somewhat arbitrary' and should be 'the subject of further discussion'—his words, not mine.
After further discussions with agencies, it was concluded that an initial suspension period of 48 hours, up to a maximum of seven days, would be too short to give practical effect to the suspension power. In its report on the bill, the PJCIS considered that the 14-day suspension period appropriately balances the need to allow sufficient time for ASIO to conduct a full assessment of the person with the impacts on the individual passport holder concerned. The government also opposes amendments (5) and (6) among the Greens' amendments. Those amendments would allow an officer of ASIO to make a request for the suspension of a person's Australian travel documents. They are not necessary, as government amendments to the bill implementing PJCIS recommendation 26, with which we have dealt, will limit the requesting authority for the suspension of a person's Australian travel documents to the Director-General of Security. The Director-General may delegate this power to a Deputy Director-General of Security.
I might say, in passing, that it rather surprises me, given the overall position that the Greens party has taken in relation to this bill, that they would allow for a much wider delegation of power—as their amendments contemplate—than the much narrower and more heavily safeguarded provisions of the government's amendments, which confine the requesting authority to the Director-General of Security or to one of the Deputy Directors-General of Security.
The government also opposes Greens amendment (7), which will allow an officer of ASIO to apply for an extension of the suspension of a person's Australian travel document, for the same reasons as our opposition to amendments (5) and (6). The government opposes amendment (8), which is consequential upon proposed amendments (5) and (6).
First of all, in relation to the point that the Attorney-General made about the fact that the government's amendments now—very late in the piece, and only recently circulated—propose an amendment to allow the Director-General of Security to be the person to whom the Minister for Foreign Affairs may delegate his or her passport suspension power, in its first iteration of the bill, which is what we had notice of until late today, it was to any person. That obviously caused great concern. Because it would have allowed the Minister for Foreign Affairs to delegate the power to an officer of ASIO, ASIO could be a law unto itself. In fact, that could still be the case.
I think it has been misleading all along for the government to suggest in its explanatory memorandum, and to continue to suggest, that this provision of the bill actually implements the recommendations of the Independent National Security Legislation Monitor. Even if the timeframes that the monitor initially proposed were, as asserted, somewhat arbitrary, the concern that the Australian Greens have now is that this proposal means that there could be multiple suspensions. There is no real limit on how many times the suspension period can be repeated, and there are insufficient safeguards to prevent that from occurring.
Overall, the Australian Greens say that while some additional powers are needed there is great concern that this new power could be misused, overused or subject to inadequate oversight. That will essentially leave the Australian community at risk of having their legitimate, and possibly urgent, overseas travel unnecessarily or disproportionately disrupted. While the Attorney-General seeks to reassure me, as is the case in relation to quite a few of the provisions in this bill, that they will only be exercised rarely and seriously, there is a large amount of discretion. That is not reassuring. That does not provide the certainty that people need.
What I took from the Attorney-General's response to my first question was that there will be no provision for any compensation made where, even if the decisions are made rarely and seriously, there is a mistake made. Sometimes, we know, mistakes can be made and if a person's life or travel is disrupted to their detriment there will be no compensation. Unless the Attorney-General suggests that that is not the case, then clearly that is the position that will come about if this amendment is passed.
I might just respond to Senator Wright's remark that the government amendments have been circulated late in the piece. Senator Wright, the committee stage of this debate began at about 8 o'clock this evening. The government's amendments were circulated at lunch time. It is not late in the piece for amendments to be circulated some hours before the committee stage of debate comes on. But, more importantly, the government announced its decision to accept the recommendations of the Parliamentary Joint Committee on Intelligence and Security last Wednesday.
So the government's intentions in relation to this, as in relation to all the other matters before the committee this evening, have been known for nearly a week. That is hardly late in the piece.
by leave—I move government amendments (6), (8) to (10), (26), (27), (31), (32) and (40) together:
(6) Schedule 1, item 33, page 12 (lines 4 and 5), omit the item, substitute:
33 Section 34ZZ
Omit "22 July 2016", substitute "7 September 2018".
(8) Schedule 1, item 43, page 13 (line 27), omit "15 December 2025", substitute "7 September 2018".
(9) Schedule 1, item 44, page 14 (line 3), omit "15 December 2025", substitute "7 September 2018".
(10) Schedule 1, item 45, page 14 (line 6), omit "15 December 2025", substitute "7 September 2018".
(26) Schedule 1, item 86, page 70 (line 18), omit "15 December 2025", substitute "7 September 2018".
(27) Schedule 1, item 87, page 70 (line 21), omit "15 December 2025", substitute "7 September 2018".
(31) Schedule 1, item 107, page 75 (line 20), omit "15 December 2025", substitute "7 September 2018".
(32) Schedule 1, item 108, page 75 (line 23), omit "15 December 2025", substitute "7 September 2018".
(40) Schedule 1, item 110, page 83 (line 32), omit "10 years after it commences", substitute "at the end of 7 September 2018".
This bracket of amendments deals with the sunset provisions. They collectively implement recommendations 13 and 20 of the Parliamentary Joint Committee on Intelligence and Security. The amendments reduce the sunset period for the stop, search and seizure powers in division 3A of part IA of the Crimes Act, control orders, preventative detention orders and the new declared area offence in the Criminal Code and the ASIO questioning and detention powers.
Although the PJCIS recommended setting the sunset at two years after the last federal election that would result in uncertainty about the period of operation of these important powers. Accordingly, a date that would meet the intent of the recommendation but provide certainty was selected. That date, 7 September 2018, is two years after the third anniversary of the last general election—that is, the general election prior to 2018. So the two-year period is kept, but a date has been selected that enables that period of two years to be reflected in the date most approximately likely to be the actual date of the two-year anniversary.
Although the sunset could have been set as late as 14 January 2019, because that is two years after the very last date on which parliament could be dissolved, being the three-year anniversary of the first meeting of the House of Representatives after the previous election, the earlier date is more consistent with the intent of reduced sunset periods, more content with the spirit of the PJCIS report and means, as I said, Senator Wright, that the sunset provision will likely take effect sooner rather than later.
I have some questions for the Attorney-General in relation to the sunset provisions. These serve to extend control orders, preventative detention orders and other powers. The former Independent National Security Legislation Monitor recommended that control orders and preventative detention orders be abolished. The government is now seeking to extend the sunset provisions for these powers when the current sunset provisions still have at least a year before they expire. I am interested in understanding: did past independent expert inquiries by the monitor and, in fact, the COAG review of national security legislation get it wrong when they recommended that the preventative detention order regime be removed and that the control order regime be reformed?
Senator Wright, I am aware of the view that preventative detention orders and control orders ought to be repealed. That was a view of the previous INSLM. It is not a universal view, nor was the INSLM's review the only review of these powers. The report of the COAG review, for instance, Senator Wright, with which perhaps you are familiar, recommended that control orders be continued.
I might say that the recommendation that the government has adopted, coming from the PJCIS, brings forward the sunset period by many years beyond what was initially contemplated. It was initially contemplated that the sunset period be extended by another decade. The original sunset period, after the Howard government introduced these provisions in 2005, was for them to sunset after a decade. When this legislation was prepared, a view was taken by the government, consistently with are COAG review, that control orders ought to remain a part of the apparatus available to the intelligence agencies. The utility of control orders is something that has been demonstrated, but they have been used sparingly in only the most extreme cases. There have only been two control orders sought and obtained in that decade: one in relation to David Hicks and the other in relation to Jack Thomas, both notorious terrorists, or, in Mr Hicks's case, an admitted terrorism supporter who trained with terrorist organisations in Afghanistan.
So the rather exuberant and in some cases hysterical language in 2005, that these control orders might be used oppressively, was proven to have been a false concern. They have been used rarely, selectively and, indeed, on only two occasions in the decade since. So, when the government considered the matter, the question we had to ask ourselves is: would we follow the view of one INSLM or would we follow the view of the COAG review? We decided to follow the view of the COAG review and keep control orders as part of our apparatus. But, in deference to the views of the members of the PJCIS, we have brought the period of the control orders back from a further decade to a date two years after the date of the next federal election, so they will sunset then and can be reviewed on that occasion.
In relation to preventative detention orders, that is also a very rare thing. There has never been a preventative detention order issued under the Commonwealth Criminal Code. There was recently a preventative detention order issued under the analogous or the complementary provisions of the New South Wales criminal law, which I understand is the first occasion on which that device has been resorted to. So, once again, the suggestion that these mechanisms might be used oppressively has not been realised. I note it was before you were in the Senate, Senator, so I do not blame you for this sentiment, but the fears of those who thought that this extraordinary power would be use gratuitously or arbitrarily have not been realised. The fact that on very rare occasions the authorities have felt the need to resort to them demonstrates their utility as a last resort in our apparatus.
As a further token of our concern to ensure that powers as unusual as this are not used excessively or arbitrarily or allowed to lie on the statute books unnecessarily, we have, as I said, foreshortened the extended sunset period from a decade hence to two years after the next federal election.
That was a view initially taken by the government. The mischief, the threat, that this legislation primarily concerns and seeks to address—the threat of foreign fighters—is, I am very sorry to say, not a threat that is likely to disappear any time soon. Senator, you do not have to be privy to the intelligence to understand that. You merely have to look at the assessment in some of the quality commentary on this issue and some of the quality open source media to know that this is a problem that those who profess to be specialists in this field predict will be with us for some years yet. Given that the view was taken that the threat is likely to be with us for some years yet, the government decided that an appropriate thing was to replicate the initial sunset period, to roll it forward, but still leave a sunset mechanism in place. However, as I say, in deference to the views of the PJCIS, we have foreshortened that in the manner I have indicated.
It seems somewhat ironic that the government of its own idea and thinking—not with recourse to any recommendations from any of the other bodies that you have been citing in relation to justifying the continuation of the regimes—came up with 10 years, and you are suggesting that it is a virtue that you have been prepared to wind it back to four years on the recommendation of PJCIS. You are preferring to take the recommendation of that body as opposed to following, as you said, the recommendations of the Independent National Security Legislation Monitor. I put to you that not only COAG and the Independent National Security Legislation Monitor have expressed concerns about this regime and, indeed, the time frame; a very strong view has been put out there by organisations that I will cite in a minute that it is completely unnecessary and inappropriate to use this particular bill—which we are told it is an urgent matter to get through the parliament. That has therefore led to a lot of concerns about the speed with which it has been analysed.
It is complex legislation, and a lot of people who made submissions to the PJCIS said that they had limited time. Some people said that they did not have enough time to analyse the consequences of this legislation properly. Nonetheless, the justification by the government is that this is an urgent matter that has to be got to straightaway; yet we know that there was at least a year to allow some more careful and slower reflection on the consequences of extending the sunset provisions in relation to the PDOs, the control orders and the other powers. So there is a view that it is completely unnecessary and inappropriate to use this bill to extend the sunset clauses attached to powers like control orders, preventative detention orders and ASIO's questioning and detention warrant powers, because they would have remained in place for at least another year regardless of the passage of the bill.
These are exceptional powers that allow authorities to operate outside the traditional criminal justice process. They permit the restriction of liberty of people who have not been charged with—and, in some cases, are not even suspected of engaging in—a criminal offence. Under these powers, a mother or a father or a teenager could be detained and questioned by ASIO or the police and provided only limited access to loved ones and legal representation without the authorities needing to charge the person with any criminal offence or establish that the person is a threat to national security. As you point out, they have only been used very rarely in the past, but that is one of the concerns that has been reflected in some of the commentary around the necessity to maintain these very, very restrictive regimes, because having excessive and restrictive laws on the books for which there is not a clear need is dangerous in itself.
These powers have been subject to review, as we have said. Both the COAG review of counterterrorism measures and the INSLM considered whether these powers remain necessary and effective tools to counter terrorism. They had regard to whether and when they had been used and to information provided by law enforcement and intelligence agencies. Both the INSLM and the COAG review recommended that the preventative detention order regime be repealed, describing the PDO regime as being 'at odds with our normal approach to even the most reprehensible crimes' and may be thought to be unacceptable in a liberal democracy. The INSLM also recommended substantial reform to the control order regime. Similar comments were previously made by the former Parliamentary Joint Committee on ASIO, ASIS and DSD in an earlier inquiry about ASIO's questioning and detention powers.
There are many concerns on the record about these regimes. There are concerns about the unnecessary extension of the sunset clauses not from 10 years—which is what the government was initially proposing—but even to four years, when there was time to consider these in a more careful and thoughtful way.
It is a fairly easy argument to make—it is a fairly flippant thing to accuse someone who is disagreeing with your stance of being naive in some way. The Australian Greens have been at pains to consult carefully with those in this area that are considered to be experts in the consequences of changes to laws on human rights and civil liberties in Australia. We are aware of advice from organisations in relation to these regimes including the INSLM; the COAG Counter-terrorism Review Committee; the Gilbert and Tobin Centre of Public Law; Human Rights Watch; acknowledged human rights academic Professor Ben Saul; the Human Rights Law Centre; the Castan Centre for Human Rights Law; and, of course, the PJCIS, which, when it had a short time frame to consider this legislation, also had a view about the government's proposed time period. For those reasons, the Australian Greens say that we need to remove these clauses from the bill and take some time and carefully assess whether these are needed and for what period of time they should be on the books before they are reviewed again.
Senator Wright, I do not for a moment dispute that there are a variety of views on this matter, and all you have done is recite the views of some who have been well-known advocates of that particular point of view for a very long time. I suspect that the sorts of bodies or individuals to whom you have referred because of the particular approach they take to this debate would never be happy with any extension of the powers of the national security agencies. They are entitled to take that view, but the government has to do what human rights lawyers and academic lawyers like Professor Saul never have to do—that is, consider as well the safety of the public.
These measures are extraordinary measures. That is why they are sunsetted. That is why the government is of the view that, from time to time, we ought to ask ourselves the question as a result of the mechanism of this legislation whether they are still needed. The time arose this year for us to ask ourselves that question. And in view of the events which I will not be tedious and describe again but of which we all know, the government concluded that those powers were necessary—indeed I dare say more necessary now than they were in 2005.
Therefore, really all we are doing is having a discussion about whether four years or 10 years is the right period, and the government has acknowledged that it would do no harm at all to bring these powers back for review again four years hence, which is why I am moving this amendment. It seems to me, Senator, that when you say that the powers are very seldom used you go very close to complaining that what is wrong with the powers is that they are used too seldom. My rejoinder to you is that the fact that the powers are used so seldom shows that they have not been used arbitrarily. The fact that on rare occasions they have been used is proof enough, I think, that they do have a utility.
There are some who would like to see these powers not sunsetted at all. There are some who consider them a sufficiently important apparatus that they should be a permanent feature of our law. I am not one of those. Because these are unusual powers, they should, in my view, be sunsetted, and that is what the government is doing.
Lastly, Senator, let me address your criticism that because the sunset period in this case does not run out until 2015 the powers ought not to have been included in this piece of legislation but in another piece of legislation. I see some merit in your point of view, but there are two problems with it. First of all, it assumes that there has not been careful deliberation about the validity and utility of extending these powers in preparing this legislation. I can assure you that the same care and deliberation and prudence that would have been brought to bear on this exercise had it been undertaken in 2015 has been brought to bear on the exercise having been undertaken in 2014. Secondly, Senator Wright, I am sure you will see the point of dealing with these national security legislation issues in a comprehensive way. We have already had one tranche of legislation about the agency powers. This tranche of legislation is designed particularly to deal with the threat to our safety of returning foreign fighters. And there will be, as the government has announced, legislation in the near future concerning the mandatory retention of metadata.
It is not a healthy thing for the parliament to spend all its time dealing with national security legislation. We want to get this right by dealing with all of the various aspects of this complex body of legislation in a coherent debate that brings all the elements together as well as we may, in the same debate or the same series of debates, rather than doing it piecemeal.
Thank you, Attorney-General. I do not really understand the logic of that. You say that you want to have everything dealt with together and you want to get it right. And I suppose the argument is that in fact you cannot necessarily do both at the same time. They are inconsistent, given that there is significant concern about the speed with which this complex legislation is being rushed through the parliament, where, on my calculation, given the gag order—the guillotine order that has now been passed by this Senate through the agreement of the government and the opposition—we will have less than eight hours to consider what are some of the most significant counter-terrorism law changes that I will witness in my lifetime.
So, the idea that you can do it all nicely and neatly together quickly and get it right is what I would be contesting there. My question is: if Australia's national security environment has changed to such a significant degree, why isn't the remaining 12 months left on the current life span of these regimes being used to evaluate their effectiveness in light of the changed environment? They will still be in place. There would be time to seriously look at the concerns that have been raised previously. And the observation that they have rarely been used is actually an observation that has been made by the INSLM in the past to query the wisdom of keeping extremely extensive and intrusive laws on the books when there does not appear to be a legitimate need for those to be there.
I do not want to prolong this. I was first asked by the National Security Committee of cabinet to develop these proposals in the middle of the year. It is now 28 October. I do not know what you mean by doing something very quickly, Senator Wright, but I am bound to say that in the time that has been available in the last several months there has been more than sufficient time for me and for those who advise me within the Attorney-General's Department and within ASIO and the national security agencies and for my own staff to look with great care and deliberation at these proposals. What we bring to the parliament is the result of an enormous body of work that has been undertaken in a very thorough and calm and professional and methodical way. So, the suggestion that this has been done quickly, with respect, is not right.
It is an urgent matter, but an urgent matter can still be done with appropriate careful deliberation and an enormous body of work, for which those who advise me have been responsible, and I will at the end of this debate take the opportunity to thank them. But Senator, what you have in this, as in the first tranche of legislation and as you will see soon in the next tranche of legislation, is the fruit of very careful, methodical and professional deliberation by those who are skilled in this field.
I am interested to know about the efforts that have been made to reassure certain groups within the Australian community, such as Muslim Australians, that these extraordinary powers—which, under the foreign fighters bill, if passed, will be easier to obtain and will attract a broad range of enforcement mechanisms—will only be used as a last resort.
They will only be used where appropriate. Because of the way in which these powers have been expressed in the act—and this is a continuation, with some refinements, of course, of powers that were first legislated in 2005—it is obvious, to anyone who is capable of reading the act, the way in which the capacity to obtain a control order or a preventive detention order, the tests that must be satisfied, the caveats and the red lines, as it were, in the legislation which prevent the obtaining of orders of this kind except in very unusual circumstances, are actually written into the law. So this is not a matter of executive discretion, Senator Wright. You have read the relevant provisions of the Commonwealth Criminal Code, I am sure, so you would have seen for yourself how many safeguards are built in, how high the thresholds are, how limited the circumstances are in which orders of this kind are obtained, how rigorous the accountability mechanisms are—in particular, the need to go back to the issuing officer in a very short span of time—and the limitations on the renewal of orders of this kind, and so forth. I suppose, therefore, the immediate answer to your question is: it is there for you to see in the act for yourself.
However, let me take the opportunity of your question, Senator Wright, to remind you, or to acquaint you with the fact that the government has taken an enormous amount of time and effort to meet with community groups most immediately affected. These groups are not directed at any particular community; they are laws of general application. But it is a sad fact, as we all know, that at the moment the threat of foreign fighters is inspired by those young men and women who are ensnared by ISIL and Jabhat al-Nusra and other organisations, and that, in the name of the Islamic faith—although it is a claim that the mainstream of practitioners of the Islamic faith, of course, utterly reject—are encouraged to go to Iraq and Syria to fight in wars being conducted by ISIL. ISIL is a barbaric death cult which is at war with a Muslim nation—the nation of Iraq.
I and my colleague Senator Concetta Fierravanti-Wells, who has particular portfolio responsibility for multicultural affairs, have had many meetings—some of which the Prime Minister has participated in himself—with leaders of the Islamic community. At those meetings, I have engaged in very frank discussions with the leaders of that community in the preparation of this bill. I have said to them, in Canberra, in Sydney, in Brisbane and in Melbourne, 'We want to engage you in the preparation of this bill, because the main beneficiaries of this bill at the moment, at this bank and shoal of time in our nation's history, are you, because it is your communities, primarily, that are the victims of those who would prey upon them.' As I have said many, many times, we see the Islamic communities of Australia as our partners in shaping legislation to protect their communities from predators, to save their young men and also, in some cases, their young women from being ensnared by these false siren voices.
We are discussing at the moment the sunset clause. Can I tell you, Senator Wright, that in an early iteration of this bill there was not a sunset clause. At an early iteration of the bill, the government was provisionally of the view—for the purposes of the discussion—that perhaps these unusual measures in all the circumstances did need to be made a permanent feature of our law. I remember very clearly the meeting in Melbourne that I attended with Senator Fierravanti-Wells at which there was a long discussion about the removal of the sunset clause in an early draft of the bill. Members of the Islamic community said to me, 'Attorney-General, the removal of the sunset clause is a big issue for us. We believe that it would send a very, very strong signal to this community if the government were to reinstate the sunset clause.' I can tell you, Senator Wright, that it was as a direct result of the argument that it was put to the government by leaders of the Islamic community at that particular meeting, and then at another meeting about a week later in Brisbane, that I took the view that I ought to take that suggestion on board. So I inserted the sunset clause.
As we know, the sunset clause has now been foreshortened as a result of a recommendation of the PJCIS. I do not know how you could have a better example of the government engaging with a community with a particular interest in this legislation, listening to its concerns, embracing its concerns and acting to give effect to its concerns than by the decision that I made, on the specific advice of those community leaders, to keep the sunset provision in operation.
Thank you, Attorney-General, and if that is the case, then it is commendable that you were prepared to meet and listen in that way. Certainly, it chills me to think that there was some consideration of removing the sunset clause totally. Going to a 10-year time frame is also a great concern. Making a virtue of bringing it back to four years, I suppose, is certainly better than 10 years or having no sunset clause at all. This very debate, as tiresome as it may be to some who want to get the legislation right through, given the extraordinary and intrusive law-enforcement and intelligence-gathering powers that we are actually talking about here, I think is evidence of the value of constantly being vigilant not only about terrorism but about the very freedoms that make our vibrant democracy such a wonderful place that people want to live in. The idea that we would have sunset clauses is necessary so that we are required, on a regular basis, to keep reassessing the freedoms that we perhaps are giving up, the risks that we are running and whether or not they are necessary, given the particular environment that we are living in.
I am going to seek the guidance of the chair at this stage. The Australian Greens, in this case, are in a difficult position because we certainly do not want to have the sunset clause extended at all. We feel that a year would give sufficient time to seriously evaluate and have proper scrutiny of the regime and then make a thoughtful, considered and methodical decision. However, the bill in its first iteration did propose 10 years and this amendment is going to reduce it to four years. So that is a less undesirable outcome than 10 years.
The Australian Greens amendment would seek to have extension of the sunset clause removed completely. With respect, is it possible to have that amendment put first? If that amendment is not successful—which I envisage it will not be—then I will be in a position to know that I am able to be in favour of what is a better situation: a four-years extension of the sunset clause rather than 10 years?
Senator Wright, it is the government amendments which are before the chair at the moment. So the proposal is to deal with those, and then we can come to your amendments. The question is that amendments (6), (8) to (10), (26) and (27), (31), (32) and (40) be agreed to.
Question agreed to.
I now seek to move amendments (10), (11), (14) and (15) on sheet 7594 for the Australian Greens, and I seek leave to move those together.
(10) Schedule 1, item 33, page 12 (lines 4 and 5), to be opposed.
(11) Schedule 1, items 43 to 45, page 13 (line 25) to page 14 (line 6), to be opposed.
(14) Schedule 1, items 86 and 87, page 70 (lines 16 to 21), to be opposed.
(15) Schedule 1, items 107 and 108, page 75 (lines 18 to 23), to be opposed.
I really do not need to speak much more to these amendments. I think I have been making the case for the removal of the clauses within the bill that would seek to extend the sunset clauses as they are in effect now, which would, essentially, finish in December 2015 or July 2016. This would give the government and important stakeholders, including security agencies and human rights organisations, sufficient time to consider the efficacy and the necessity and the proportionality of the regimes that are being considered and allow them to make a serious decision about whether the sunset clause should be extended or not.
The committee has just resolved to have a four-year sunset clause two years after the anniversary of the next election in 2018. These amendments would remove the sunset clause. So they are inconsistent with the resolution of the chamber which has just been carried, and for that reason the government, of course, opposes them.
With respect to these Greens amendments, (10) and (11) would prevent extension of the sunset provision to ASIO powers—questioning warrants and detention warrants. Labor believes that we do face an especial security threat at this time and we are willing to extend extraordinary measures in order to equip our agencies to deal with this. We do not accept that these powers must stand for all time, and they must be subject to sunsets and to reviews, which has now been resolved. The intelligence committee substantially wound back the proposed ten-year period to just two years after the next election. We insisted on shorter sunsetting and on statutory review. This is the right and responsible approach to the present special security challenges.
Regarding amendments (14) and (15), these would prevent the extension of sunset provisions to AFP powers—preventative detention and control orders. Again, I highlight the special security threat that we face at this time and that we are willing to extend extraordinary measures in order to equip our agencies to deal with this. We do not accept that these powers must stand, as I have said, for all time. They are subject to sunset and review, as I have mentioned, two years after the next election or on the date Senator Brandis has highlighted, rather than the originally proposed 10 years or, indeed, as was discussed earlier, the potential that there be no limit at all. We believe these are sensible and balanced measures that ensure that we do have a review and a sunset. For that reason we are opposing all of these Greens amendments.
The CHAIRMAN: The question is that items 33, 43 to 45, and 86, 87, 107 and 108, on schedule 1, stand as printed.
I move government amendment (7), on sheet ZA358:
(7) Schedule 1, page 12 (after line 10), after item 34, insert:
34A At the end of section 38
(7) Before the end of the following periods, the Attorney-General must consider whether to revoke a certificate certifying in accordance with paragraph (2)(a) (if the certificate remains in force):
(a) 12 months after it was issued;
(b) 12 months after the Attorney-General last considered whether to revoke it.
Subsection 38(7) of the Australian Security Intelligence Organisation Act 1979 applies to certificates issued on or after the commencement of that subsection.
Amendment (7) implements recommendation No. 28 of the PJCIS by requiring that a certificate be issued by the Attorney-General under paragraph 38(2)(a) of the ASIO Act and be reviewed within 12 months of the issuance of the certificate and then every 12 months after it has been last renewed.
The effect is to ensure annual review of certificates that would enable silent passport cancellations. This is another of the safeguards, Mr Chairman, that have been accepted by the government as prudent measures, following the PJCIS recommendations. The powers under paragraph 38(2)(a) of the ASIO Act are extraordinary powers. They are only exercised in very exceptional circumstances. But it is appropriate that a certificate issued by the Attorney-General under that provision be reviewed and only, if necessary, renewed on an annual basis.
Question agreed to.
by leave—I move government amendments (11) to (13) together:
(11) Schedule 1, item 51, page 20 (line 28), omit "member;", substitute "member.".
(12) Schedule 1, item 51, page 20 (lines 29 and 30), omit paragraphs 3ZZAF(1)(c) and (d).
(13) Schedule 1, item 51, page 20 (lines 32 and 33), omit "part-time senior member or a member", substitute "full-time senior member".
Amendments (11) to (13) implement the first recommendation of the PJCIS report by limiting the AAT members authorised to issue a delayed notification search warrant, and to perform related functions, to the deputy president and full-time senior members. But for this amendment those functions could be performed by all members of the AAT. The government is convinced and accepts the view that, given the gravity of the powers exercisable under a delayed notification search warrant, the authorisation should only be made by a relatively senior member of the judiciary, and therefore only members of the AAT who serve at the most senior tiers of that tribunal ought to be issuing authorities.
Question agreed to.
I move government amendment (14):
(14) Schedule 1, item 51, page 44 (line 18), omit "18", substitute "12".
Government amendment (14) implements PJCIS recommendation No. 2 by reducing from 18 months to 12 months the maximum period before which the occupier of premises that have been the subject of a delayed notification search warrant, or the occupier of adjoining premises, be notified. Any extension beyond 12 months would require ministerial authorisation. Once again, this is an additional safeguard or a confinement of an extraordinary power. The government is of the view that the period should in all the circumstances be foreshortened from the initial period specified in the bill to 12 months.
Question agreed to.
by leave—I move government amendments (15) and (16) together:
(15) Schedule 1, item 51, page 59 (after line 32), after paragraph 3ZZHA(2)(a), insert:
(aa) the disclosure is for the purposes of obtaining or providing legal advice related to this Part;
(16) Schedule 1, item 51, page 60 (after line 13), after paragraph 3ZZHA(2)(d), insert:
(da) the disclosure is made by anyone to the Ombudsman, a Deputy Commonwealth Ombudsman or a member of the Ombudsman's staff (whether in connection with the exercise of powers or performance of functions under Division 7, in connection with a complaint made to the Ombudsman or in any other circumstances);
Amendments (15) and (16) implement recommendation 3 of the PJCIS report by strengthening the unauthorised disclosure of information offences. The amendments exempt disclosure in the course of obtaining or providing legal advice, and disclosure of warrant information to the ombudsman from the disclosure of offences in the bill.
Question agreed to.
I move amendment (1) on sheet 7597:
(1) Schedule 1, item 51, page 60 (line 19), at the end of subsection 3ZZHA(2), add:
; (g) the disclosure is made reasonably and in good faith, and in the public interest;
(h) the disclosure concerns corruption or misconduct in relation to the issuing or execution of a delayed notification search warrant.
Very simply, this amendment ensures that the public interest defence, and also the conduct or misconduct defence, are in the bill and not in the explanatory memorandum. The significance of this is quite simply that the explanatory memorandum is not referred to unless the bill is poorly drafted—unless the meaning is unclear. The explanatory memorandum is not the law. The law is what is in the bill. It does not help to go adding things to the explanatory memorandum, except in cases where the law is not clear. The law is clear. Therefore, the public interest defence for a disclosure of delayed notification, or instances of corruption or misconduct, will not be available to defendants as a defence under normal circumstances. Indeed, it would only be available to defendants under circumstances where the court felt that the bill had not been drafted sufficiently accurately. Therefore, it is important that it be in the bill and not left to the explanatory memorandum.
I accept what Senator Leyonhjelm says about the relationship between the bill and the explanatory memorandum. I think that that which ought to be in the bill should be in the bill, and it is no sufficient correction to put it into the explanatory memorandum. So, Senator Leyonhjelm, I agree with you that that is good drafting practice. However, that is really not the point here. What the amendment would do would be to introduce two additional exceptions to the unauthorised disclosure offence in the delayed notification search warrant regime. That regime is to be provided for by a new section, 3ZZHA, which sets out the offence and then sets out six circumstances that constitute exceptions to the offence. Those circumstances are various. I think it might be useful for this part of the debate if I read them to the chamber. The exceptions for the unauthorised disclosure of a delayed notification search warrant are that:
(a) the disclosure is in connection with the administration or execution of that part of the act;
(b) the disclosure is for the purposes of any legal proceeding arising out of or otherwise related to that part of the act or of any report of any such proceedings;
(c) the disclosure is in accordance with any requirement imposed by law;
(d) the disclosure is for the purposes of:
(i) the performance of duties or functions or the exercise of powers under or in relation to the relevant part of the act; or
(ii) the performance of duties or functions or the exercise of powers by a law enforcement officer, an officer of ASIO, a staff member of ASIO or a person seconded to either of those bodies;
(e) the disclosure is made after a warrant premises occupier’s notice or an adjoining premises occupier’s notice has been given in relation to the warrant; or
(f) the disclosure is made after a direction has been given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
Those are the six exemptions from the operation of the offence-creating provision by subsection (1), and it is the view of the government, and it was the view of the PJCIS, that those are the only exemptions that should be provided for. The PJCIS did explore the appropriateness of the exemptions in the bill; it recognised the importance of striking a balance between allowing for appropriate disclosure while maintaining the integrity of sensitive terrorism investigations. Taking the appropriate balance into account, the committee recommended taking additional exceptions to the offences to address disclosure in the course of obtaining legal advice and disclosure of warrant information to the Ombudsman. The government accepted that recommendation, and is introducing amendments to address it. The amendments are intended to ensure that persons who wish to report misconduct have an appropriate avenue to do so. In addition, the Commonwealth DPP is required already to take the public interest into account in deciding whether or not to prosecute someone for the offence. The government does not consider that further amendments are necessary, given the significant safeguards that will apply to the delayed notification search warrant regime.
So Senator Leyonhjelm, as I say, public interest is already part of the law, and disclosure concerning corruption or misconduct—which is the point of your proposed subsection, paragraph (h)—is already dealt with by government amendment. For that reason and the reasons explained by the PJCIS, while having a degree of sympathy, if I may say so, with what you are seeking to achieve, what you are seeking to achieve is already achieved by existing law or by government amendments.
Labor understands the points that Senator Leyonhjelm has raised, and we understand his strongly-held views about these issues. However, we oppose this amendment, which cuts against the purpose and effectiveness of the delayed notification warrant scheme, in our view. It is worth turning to the intelligence report, which says of this scheme at 2.47:
According to the Explanatory Memorandum, the scheme will differ from the existing search warrant provisions so as to enable
And at 2.48:
The ability to conduct a covert search is considered important because it will
On this basis, though it took into account the sorts of concerns raised here by Senator Leyonhjelm, the intelligence committee decided against any such exception being inserted into the bill. A similar scheme has operated without any apparent difficulty in the Crimes Act, and we are satisfied that the general safeguards which apply to the AFP—and with the passage of this bill, the new oversight powers of the intelligence committee—that there is no need for this amendment.
I want to indicate that the Australian Greens will be supporting Senator Leyonhjelm's amendments in relation to the delayed notification search warrant regime. This regime really is unprecedented in many ways in that it allows someone's premises to be searched and that they would be unaware of the basis and authority for the search, and they would be unable to challenge or make a complaint about the issue of a warrant to allow it, or about the method of execution. In fact, they may not even become aware of the fact that someone has been in their premises for up to six months. Perhaps even more alarming—police would be allowed to enter premises by the premises of a third party to whom no concern or interest attaches at all, except that their premises are attached to the premises to be searched.
In scrutinising these sorts of provisions I am always conscious of taking the frame that, while we need to ensure that we can be protected from people who have malicious intent, and as careful as processes might be, we cannot assume that the person whose premises are searched is always the right person—that there is always, in fact, a legitimate reason to search those premises. So I am always conscious about how this will impact on people who happen to be caught up in a regime which is so intrusive. The Australian Greens will support Senator Leyonhjelm's amendments because they aim to ensure that someone who discloses information about a delayed notification search warrant as a matter of public interest, or who is a whistleblower, is not caught by criminal offences that prohibit disclosure of the search information in the bill. I am also satisfied that it is appropriate to have a sunset clause to the regime that is consistent with sunset clauses for other aspects of the bill, where we have such unprecedented and intrusive incursions into the liberties of people living in Australia.
The CHAIRMAN: The question is that amendment (1) on sheet 7597 be agreed to.
by leave—I move amendment (2) on sheet 7597:
(2) Schedule 1, item 51, page 61 (after line 22), at the end of Division 9, add:
3ZZIC Sunset provision
A delayed notification search warrant cannot be applied for or issued after the end of 7 September 2018.
This amendment introduces a sunset clause into the delayed notification warrants scheme similar to others which were recommended by the joint committee and accepted by the government in relation to control orders and preventive detention orders. It prevents a new delayed notification search warrant being issued after the sunset date. It does not prevent a warrant that was issued earlier being executed. This is appropriate in context because delayed notification search warrants expire 30 days after being issued. Also, after a warrant is executed, there remain a number of ongoing obligations, such as the requirement to eventually give notification. This, in my view, should remain in force as a protective measure. In other words, this introduces the same sunset provision that the government has already accepted in relation to control orders and preventive detention orders, and simply brings delayed notification warrants under the same system.
The government will be opposing this amendment. Senator Leyonhjelm makes the reasonable point that delayed notification search warrants are an unusual mechanism. He goes on to say—by analogy with the treatment of control orders and preventative detention orders—that they, too, ought to be sunsetted. But, Senator Leyonhjelm, there are gradations of exceptionalism, as it were, in these powers. Control orders and preventative detention orders are very, very unusual powers. As I keep saying, they ought to be—and have been—used extremely rarely. Delayed notification search warrants are somewhat less unusual. They are a standard feature of the criminal justice system of most states and territories, and have been so for a number of years.
Delayed notification search warrants are needed, and perhaps I might take the opportunity to explain the rationale for introducing this measure with the bill. Delayed notification search warrants are needed to enable the Australian Federal Police to investigate and prevent serious terrorism. They strengthen the legislative framework for Commonwealth investigations into terrorist threats. Under current Commonwealth search warrant provisions in the Crimes Act, the occupier of premises to be searched must be given a copy of the warrant if they are present, which means that a search cannot occur without the occupier being made aware that the search is taking place. That is the standard situation with the execution of a search warrant, of course. However, sometimes it is necessary—particularly in terrorism investigations—to keep the fact that a search has been conducted under warrant confidential. Keeping the existence of an investigation relating to terrorism offences confidential can be critical to their success, particularly when the investigation involves multiple suspects or multiple terrorist cells, or is conducted over an extended period of time.
Let me give an example of what I mean. Let us say that the Australian Federal Police were aware of a series of groups who were networked within a capital city, or perhaps between different capital cities, and they wished to carry out a search of the premises of one of the individuals who was a member of that network. If the standard procedure of the execution of a search warrant were to be observed, then the police would have to notify that suspect of the fact that they were conducting a search of his premises, and there would be nothing to stop that suspect then alerting other members of his network that they might imminently be the subject of a search warrant as well or of some other form of investigation. That could potentially substantially defeat the benefit of the investigation by denying the authorities the benefit of surprise. By the way, it is for that reason, Senator Leyonhjelm, that delayed notification search warrants are pretty much a standard feature now of investigation into various types of organised crime, for example, carried out by state and territory police forces. That is their rationale, and I am sure that you can understand that rationale.
The option of delayed notification search warrants will, therefore, enable AFP officers to conduct investigations without a suspect being aware of their interest, providing a significant tactical advantage in an appropriate case. It will avoid suspects taking steps to avoid detection, relocate their operations or relocate and destroy evidence. It will also avoid suspects notifying their associates of police interests in their activities, as in the example that I gave you.
The types of terrorism activities that could be investigated under this scheme may be—and very often are—sophisticated networks involved in financing terrorism, recruiting for a terrorist organisation and providing training for terrorist acts. Delayed notification search warrants will increase the opportunity for successful investigations of terrorism offences and enhance the ability of the AFP to gather information about planned operations with a view to preventing a terrorism offence from being committed.
Senator Leyonhjelm, I think that in explaining to you the rationale for having, in appropriate circumstances, a delayed notification scheme for search warrants I have also explained to you why it is not appropriate that it be sunsetted. The investigative need for such a capability is not something that is going to diminish over time. We have sunsetted control orders and we have sunsetted preventative detention orders—the most unusual tool in the apparatus—because we hope that maybe the day will come that orders of that kind will no longer be needed. For as long as criminals act in networks, for as long as criminals act covertly and for as long as criminals—not necessarily terrorists—act in a sophisticated manner, the need on occasions to be able to conduct a search of one member of that network without alerting other members of that network to the fact that they have been sprung is not going to go away. I think as a matter of common sense, Senator Leyonhjelm, you would see that. That is why, in the government's view and in the committee's view, it is not appropriate that a mechanism of this kind be sunsetted.
Labor takes a different perspective to Senator Leyonhjelm on the delayed notification warrants scheme. Some of the powers conferred in this bill are clearly extraordinary, and, accordingly, are subject to sunsetting—sunsetting which Labor has brought back to just four years.
However, some parts of this bill are structural reforms. That is, enhancements to agency powers which are intended to be ongoing. The delayed notification warrant scheme is one such agency power. There is no need for this scheme to be sunsetted. This part of the bill brings the powers of the AFP into line with the other Australian police forces. I will quote from the Intelligence Committee again here:
While the Committee notes that delayed notification search warrants do represent a significant departure from the normal search warrant scheme provided for in the Crimes Act, it also notes that many other Australian police forces have access to similar, if not more intrusive, powers. Given the threat posed by terrorism and foreign fighters, the Committee considers it is appropriate that the AFP have access to these powers for serious terrorism offences.
Because we think that the balance has been struck on these issues in the Intelligence Committee's consideration, Labor opposes this amendment. The delayed notification warrant scheme is an important tool for the AFP in its counter-terrorism capacity.
I cannot help but remind the Attorney-General that we have dealt with criminals at a Commonwealth level now without delayed notification warrants since we have had Commonwealth criminal law. The trouble I have with this provision is not that delayed notification warrants might be needed under the current circumstances; I do not find the argument that we anticipate that it these will be needed for the indefinite future at all compelling. If it is anticipated that there will be an need for them in four years' time, they can be re-enacted.
If it is felt that preventative detention orders and control orders are serving a useful purpose—and the evidence suggests so far that that is not the case, but perhaps they will be shown to be serving a useful purpose—then they will also have to be re-enacted. There is nothing wrong with legislation that lapses unless it is felt that it is serving a useful purpose and therefore is justified and maintained. The assumption that we know what will be the circumstances relating to terrorism, or whatever else the law is intended to apply to, in years ahead cannot be made today. We do not know.
It is perfectly legitimate to argue on the one hand that delayed notification warrants can be justified. I am really not disagreeing with that, although I certainly will vote against the bill itself—but for other reasons. But to suggest that we can anticipate that this is going to be required indefinitely into the future is illogical. I would ask the Attorney-General to reconsider.
Senator Leyonhjelm, I am perplexed. I thought you were a libertarian. Yet the argument that we have just heard from you characterises you as the most rock-ribbed conservative; because if your argument were to be taken to its logical conclusion, we would never legislate for anything because we could never be completely certain about what might happen in the future. We would never reform the law and we would never have amended the Commonwealth Crimes Act since its first iteration in the first parliament 112 years ago.
The fact is that we, as legislators, have to make judgements about how to put the law in the best shape possible in various areas of public policy. When it comes to criminal law, it is possible to identify a gap—as there is here—in law enforcement techniques and capabilities and to say that because we have identified that gap, the law stands in need of reform not for a few years hence but because we have actually identified a gap that is not likely to go away.
I pose to you, Senator Leyonhjelm, once again, the rhetorical question: do you really think that we will ever see the day when some kinds of criminals—not just terrorists—will not operate in networks? Because I do not. If it is in the nature of criminal conduct that criminals, particularly sophisticated criminals, will operate in networks, then there is a rational argument for configuring our search warrant powers in such a way that the execution of the search warrant against one member of that network will not expose the operation so as to enable other members of that work to be tipped off to escape or to rid themselves evidentiary material that might be incriminating or would otherwise degrade the capability of the criminal investigation.
I think that is in the nature of sophisticated organised crime, including terrorist crime. Senator Leyonhjelm, if you think that those considerations are likely to disappear in four years' time, 10 years' time or ever, then I beg to disagree with you. This is a permanent reform to our law, the utility of which—with respect—is obvious.
The CHAIRMAN: The question is that amendment (2) on sheet 7597 be agreed to.
I intend to move Australian Greens amendments (12) and (13) on sheet 7594 separately and speak to them separately. I will start by moving amendment (12) on sheet 7594:
(12) Schedule 1, item 61, page 63 (line 11), omit "reckless as to whether", substitute "with the intention that".
This is an amendment to a provision in the bill for the new offence of advocating terrorism. Under this provision, a person would commit a new offence if they intentionally counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorism offence and the person is reckless as to whether another person will engage in a terrorist act or commit a terrorist offence.
This is a significant serious new offence as it carries a maximum penalty of five years imprisonment. The Australian Greens amendment seeks to—
The CHAIRMAN: Order! It being 10 pm, the committee will now report progress.