Wednesday, 26 November 2014
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014; In Committee
The committee is now considering the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, as amended. The question is that items (13), (23), (24), (26), (27) and (29) of schedule 1 stand as printed.
Yesterday we had the deplorable situation where the bill was before the committee and amendments were being debated without an explanatory memorandum to explain some very significant terms: 'supports and facilitates' and 'class of persons'. The minister last night could not answer what the committee was asking and instead said the explanatory memorandum would be circulated first thing this morning. We still do not have the explanatory memorandum. This is making a complete farce of the committee and this legislation. We need that explanatory memorandum and we need to hear from the minister what exactly is meant by the terms 'class of persons' and 'supports or facilitates'. This is about how Australian citizens are going to be treated under these counter-terrorism laws. We need to know how a class of persons is going to be defined and that is why we need the explanatory memorandum.
I rise on a point of order, Madam Acting Chairman. The explanatory memorandum, contrary to what Senator Milne has just said, is available—
The TEMPORARY CHAIRMAN: Senator Brandis, that is a debating point, not a point of order.
If she would allow it to be tabled, it would have been tabled by now. The person who is delaying this is Senator Milne.
The TEMPORARY CHAIRMAN: Senator Brandis, that is a debating point.
I resent the very inference that I have somehow stopped the explanatory memorandum being tabled. The minister was not even in the chamber when the debate was brought on, as you are very well aware; that is why we had the quorum called in order to get the minister from wherever he was. It happened yesterday as well.
We take this legislation extremely seriously. The minister treated the committee with absolute contempt last night, refusing to explain those terms. He kept referring to his explanatory memorandum, which we do not have. I expect it will be distributed now so that the minister will answer the questions, because this applies to Australian citizens. People will want to know whether they are going to suddenly be caught up in a 'class of persons' definition that enables them to be spied upon, or information to be shared about them. People need to know what the basis for the definition of a class of persons is. Last month the minister said a class of persons was not going to be based on ethnicity or religion or ideology or political viewpoint. Let us see how the government intends to define a class of persons for the purposes of this legislation.
Contrary to what Senator Milne has just falsely asserted, every question that was asked of me last night was answered and answered fully. I was asked four questions, Senator Milne; had you bothered to attend the debate rather than make a fleeting appearance you would know this. I was asked three questions by Senator Wright and I was asked one question by Senator Ludlam. I was asked by Senator Wright, in the first place, about the definition of 'supports and facilitates'; I was asked by Senator Wright about the definition of 'class'; I was asked by Senator Wright for an explanation why the dates for the review by the PJCIS and the sunsetting had been chosen; and, I was asked by Senator Ludlam whether the effect of those provisions of the bill which enable ASIS or enhance the capacity of ASIS to work with the Australian defence forces would enable ASIS to participate in acts of violence. Each of those four questions was answered by me in full at the conclusion of the debate on the relevant amendments. Senator Milne, if you had been in the chamber, you would have known that what has just come from your lips is a falsehood.
The explanatory memorandum should have been available yesterday and I regret that it was not, but it is now. So I table a supplementary explanatory memorandum relating to the government amendments and an addendum to the explanatory memorandum.
The TEMPORARY CHAIRMAN: Just a moment, Senator Brandis. If you would not mind, resume your seat. I remind the committee that we are dealing with (13), (23), (24), (26), (27) and (29) of schedule 1, that the items stand as printed and that they are government amendments.
Madam Acting Temporary Chairman, I am moving government amendments (7), (15), (16) and (18) on sheet ES111.
The TEMPORARY CHAIRMAN: Resume your seat again, Senator Brandis. I understand that that has already happened.
No, it has not.
The TEMPORARY CHAIRMAN: Senator Brandis, resume your seat, please. I am informed by the Clerk that those amendments were moved last night.
Madam, that is not correct. I was given leave to move the amendments together when the committee came to 20 past seven last evening and the adjournment was put. I do not know what the Journals of the Senate record, but, in any event, having obtained leave last night, I now move:
(7) Schedule 1, item 13, page 7 (lines 18 to 28), to be opposed.
(15) Schedule 1, items 23 and 24, page 8 (line 23) to page 9 (line 10), to be opposed.
(16) Schedule 1, items 26 and 27, page 9 (lines 20 to 25), to be opposed.
(18) Schedule 1, item 29, page 10 (lines 4 to 14), to be opposed.
These amendments implement recommendations 5 and 6 of the unanimous report of the Parliamentary Joint Committee on Intelligence and Security. Recommendations 5 and 6 were that the bill be amended to ensure that an issuing court retains the authority to examine each individual obligation, prohibition and restriction in a control order and that the AFP be required to explain why each obligation, prohibition and restriction should be imposed.
Amendment (7) amends the bill to revert to the current requirement in the Criminal Code that, when considering the impact of a control order on a person, the issuing court must consider each of the proposed obligations, restrictions and prohibitions. This is designed to ensure that the issuing court individually considers the impact of each proposed obligation, restriction and prohibition on the person separately when deciding whether or not to make a control order.
Amendments (15), (16) and (18) oppose items (23), (24), (26), (27) and (29) of the bill. These amendments will ensure consistency within the control order regime by providing the same requirements with respect to the consideration of each obligation, prohibition and restriction whether seeking the Attorney-General's consent, making a request to an issuing court or making, varying or confirming a control order.
The purpose of the amendments is to provide for consistency in the obligations that must be put before the relevant decision maker at each stage of the process whether it be the Attorney-General, whether it be the court that issues the control order or whether it be a court which is subsequently asked to vary or in some way amend the control order. As I said, these give effect to the unanimous recommendations of the Parliamentary Joint Committee on Intelligence and Security. When we have dealt with these amendments and, in the event that they were to be adopted by the committee, that would mean that all of the recommendations by the Parliamentary Joint Committee on Intelligence and Security for amendments to this bill would have been adopted and given effect to.
I thank the Attorney-General on this occasion for going through the details of the government amendments. People watching this debate might recall that, yesterday evening ahead of the Attorney-General arriving, I commenced outlining Labor's position in relation to all of those amendments. I have addressed these ones as well in my remarks to government amendments as a whole. We will be supporting them on the basis that they implement the recommendations of the joint intelligence committee.
Before responding to the particular comments that the Attorney-General has made both in relation to the amendments that are being moved but also what he asserts occurred last night, I would like to make a few comments. I would like to recap where we are up to on this bill and touch on the bizarre scenes that played out in this place last night as we debated this significant piece of national security legislation. In what was really an abuse of the committee stage of the debate in this Senate—and the Hansard record will speak for itself—the Attorney-General refused to answer what were fair and reasonable questions which I was putting to him as part of the committee of the whole stage of the bill.
For more than half an hour, before finally deigning to answer my questions, he refused to answer legitimate questions, sitting in the Senate studiously ignoring me and not paying me the courtesy of even explaining what was going on, indicating at that point that he would deign to answer those questions later as a whole or would give the basis upon which the answers were being refused. I was asking those questions on behalf of all those who do not have an opportunity to stand in this chamber and ask those questions but have a legitimate interest: legal experts, human rights organisations, civil liberties groups and members of the Australian public who have concerns about this legislation.
Let me be very clear: the Attorney-General has asserted that I asked three questions. That is not the case and the record will stand on the number of questions I asked. I did ask the questions that he has referred to today, but I asked further questions about contextualisation of the phrases that have caused concern because of their breadth and vagueness. I also asked questions arising from the Parliamentary Joint Committee on Human Rights. I was on my feet asking questions and certainly asked more than three questions.
Let me be very clear: the Australian Greens do not support this bill. It seeks to expand the flawed control order regime, which many experts have criticised and said should be repealed. We do support the recommendations of the Parliamentary Joint Committee on Intelligence and Security, which the government has accepted, and we support the government's amendments, which will give effect to the PJCIS's recommendations in one form or another. They are a welcome improvement to some of the worst parts of this bill, but they certainly do not allay all of our concerns.
Last night, the Attorney-General evinced an unwillingness to engage in the proper dialogue that one could legitimately expect during the committee of the whole in this parliament, so we still remain in the dark about what this bill will mean for Australians if it becomes law. It seemed that the Attorney-General had not properly considered the report of the Parliamentary Joint Committee on Human Rights into this bill before the committee stage started and before he entered that stage. We maintain that debate should not have even commenced until that report has been considered by senators given the huge human rights implications this bill has for Australians. That is a committee doing the work of this parliament and it should be respected. In all, with his procedural games and by refusing to answer questions as they were put to him, the Attorney-General was attempting to dictate to me which questions I could ask and which I could not ask and screened those which were apparently, in his view anyway, not worthy of a response. One actually suspects that in some cases he did not have a response available.
I refuse to be directed by the Attorney-General as to what questions I can and cannot ask and when. This was the committee stage when senators are able to directly question the minister who is responsible for a bill. It is a fundamental part of our democratic system. This is a significant bill and I will continue to ask questions about the bill on behalf of the Australian public.
I do not want to have meta-debate, I do not want to have a debate about the debate, but I have to correct some statements that were made. Every question you asked was answered, Senator Wright, and you certainly asked more than three questions—that is true—but you only asked questions in relation to three issues. The fact that you asked the same question many times, I counted that as one question, I must confess. But you raised three issues with me in your questions and all three of those issues were addressed. Your questions were fully responded to, as the record will show. Because the clauses in this bill are somewhat related to each other, I thought the most efficient way of dealing with this was to hear what you had to say and then answer you, and that is what happened.
I have said before that the revised explanatory memorandum should have been here last night and it was not, and I take responsibility for that. You have not addressed any of the amendments I have just moved. I understand that the Greens are opposed to these amendments, but we have not heard any argument or questions. I assume that we will now proceed to a division.
I wanted to clarify. We are not opposing the amendments—just to make sure that the Attorney-General understands that is the case. That is what we have said all along.
The TEMPORARY CHAIRMAN: Senator Brandis, do you have any further comments to make?
No. I have moved the amendments. They are being supported by everyone, apparently. Could we just have the vote, please?
The TEMPORARY CHAIRMAN: The question is that items 13, 23, 24, 26, 27 and 29 of schedule 1 stand as printed.
by leave—I move Australian Greens amendments (1), (2) and (7) on sheet 7626 together:
(1) Schedule 1, item 7, page 4 (lines 29 to 31), omit paragraph 104.2(2)(c), substitute:
; or (c) suspects on reasonable grounds that the person has provided support for or otherwise facilitated a terrorist act; or
(2) Schedule 1, item 11, page 7 (lines 1 to 3), omit subparagraph 104.4(1)(c)(vi), substitute:
(vi) that the person has provided support for or otherwise facilitated a terrorist act; or
(7) Schedule 1, item 25, page 9 (lines 13 to 16), omit paragraph 104.23(1)(c), substitute:
; or (c) suspects on reasonable grounds that the person has provided support for or otherwise facilitated a terrorist act; or
Schedule 1 of the bill will expand the control order regime to enable control orders to be sought for a much broader range of conduct, including preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country and preventing the provision of support for or the facilitation of a terrorist act. These Australian Greens amendments limit the use of control orders to require a clearer, stronger nexus between the activity of the person and the commission of a specific criminal offence. The amendments do this by requiring the police officer who is applying for either the interim or confirmed control orders to demonstrate that he or she 'suspects on reasonable grounds' that the person has in fact provided 'support for or otherwise facilitated a terrorist act' or a hostile activity in a foreign country. This is different to the bill as currently drafted, which would allow control orders to be sought if reasonably suspected to be necessary to prevent the provision of support et cetera.
Why are these amendments necessary? The Australian Greens believe that these amendments are critical as the changes proposed in the bill would otherwise allow a control order, which displaces the usual standard and the usual process we have in Australia—that is, arrest, charge, prosecution and determination of guilt or otherwise on the basis of evidence—to be a coercive regime; it would allow a control order to be sought purely as a preventative measure where there is no clear evidence that the person subject to the order has actually formed criminal intent or taken any specific action towards the commission of a criminal offence.
When control orders were originally introduced, there was significant disquiet about moving away from our established practice to having a coercive regime in this way. One of the justifications for it was that it was necessary to prevent an 'imminent' risk of serious harm. What we have seen is a creeping erosion of those protections and a broadening of this orders regime to the point now where we are seeing that it is highly likely that these coercive orders place significant restrictions on a person's ability to go about their life and live within the community, on the basis of possibly preventing—just preventing—something that may or may not happen, without very much evidence. This amendment would ensure that control orders are only available in the most serious of circumstances. That was the rationale for when they were originally developed and introduced: where the authorities have real evidence to demonstrate that they are necessary to protect the public from a terrorist act or to prevent engagement in a hostile activity overseas.
Without this amendment, the changes proposed in schedule 1 of the bill would significantly expand the scope of the control order regime, changing the character of the regime from one of last resort, which, given its coercive and extensive nature is appropriate, to one that is available at the early stages of a foreign incursion or terrorist investigation, which in that case would necessarily take up and capture and involve people and affect people's lives who are not necessarily of any particular risk.
Submitters to the Parliamentary Joint Committee on Intelligence and Security inquiry into the bill suggested that if enacted this bill would mean control orders could be used in a much broader range of situations in the early stages, rather than as a last resort. Submitters included the Law Council of Australia and the Gilbert and Tobin Centre for Public Law—acknowledged experts in this complex and difficult area of law. Many other submission makers opposed any extension of the control order regime, including the Australian Human Rights Commission and Civil Liberties Australia. So the Greens do not stand here on our own; we have the support of many organisations throughout Australia, and we are taking note and heeding the position and the advice and the concerns that have been raised by them.
Previously, the Independent National Security Legislation Monitor also recommended that the control order regime be repealed and replaced with a new regime that would apply only to persons previously convicted of involvement in or support for terrorist activity. These amendments are consistent with these recommendations. Because it is very clear that the opposition supports the government's legislation in this regard we are not seeking to revoke the control order regime, but these Australian Greens amendments are reasonable amendments to ensure that that nexus between risk and coercive action is stronger and clearer in a bid to support human rights in Australia.
I will turn to the substantive issue in a moment, but may I say: Senator Wright, the government has always understood that there is a variety of views about this matter. It advances the debate not one iota, with respect, for senators to say, 'Well, this particular expert has a different view'. I know the Gilbert and Tobin Law Centre very well—I have addressed it I think four times in the last decade or so—and I acknowledge that it does have a different view. There are others who have a different view, but you have, if I may say so, Senator, a rather touching faith that merely because one particular university institution has a particular view, then that view is conclusive. They are a voice in the debate.
What I can tell you, Senator Wright, is, coming from the side of politics that have built into their DNA an innate suspicion of state power, we have gone about this task with a presumption against expanding the power of the states. So you can be reassured and the good people at the Gilbert and Tobin Law Centre and all of the other worthy people who share the view that you have just propounded—it is a minority view obviously—can be reassured that in approaching this task as a liberal, as a classical liberal who suspects the power of the state and does not wish to see it expanded, we have been extremely careful not to overreach, and only to include in the bill those provisions that we were persuaded were the minimum necessary in order to protect public safety or to have an appropriately comprehensive regime of protection for the public.
Coming to your amendments, Senator Wright, amendments (1), (2) and (7) would in three places omit the words 'suspects on reasonable grounds that the order in the terms to be requested would substantially assist in preventing the provision of support for or the facilitation of a terrorist act'. By seeking to omit those words and substitute for them the words in your amendment in the three places in the bill, what you do is to say that control orders ought not to be available where to issue a control order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act. Frankly, I do not think the public would agree with you.
I understand you have a philosophical objection to control orders themselves. But we are not debating the broad point now, we are debating the narrow point: within the control order regime, if all other conditions are satisfied, ought there to be a jurisdiction to issue a control order where to do so would substantially assist in preventing the provision of support for or the facilitation of a terrorist act? Instead, what you and your Greens people would have us do is to have a control order issued where it was suspected on reasonable grounds that the person had provided support for or otherwise facilitated a terrorist act. If there is enough evidence that a person has provided support for or has facilitated a terrorist act, you would not be issuing a control order, you would be issuing an arrest warrant because they would have committed the crime.
The control order regime, importantly, operates prospectively. Once the offence has been committed, we are talking about terrorism here. We are talking about the destruction of lives, the destruction of property and the destruction of systems like financial systems or communication systems in the furtherance of a terrorist act. Once the conduct has occurred it is too late. That is why we have to move out of this criminal law paradigm that thinks that this is about punishment for offences that have been committed.
The purpose of counter-terrorism policy and counter-terrorism law is to provide the apparatus to interdict so as to prevent the occurrence of the terrorist act. Control orders, judiciously hedged by the many safeguards with which they are hedged, are a very important part of that apparatus. Senator Wright, with all due respect to you, once you say we should only have this jurisdiction once that about which we are concerned has already happened, you have missed the boat, if I can use the vernacular.
These orders have to have the capacity to operate prospectively. Leaving aside your philosophical objection to whether there should be control orders at all, do you really think, Senator Wright, if I may ask you rhetorically, that if we are going to have control orders, it would be a good idea to have them available to substantially assist in preventing the provision of support for or the facilitation of a terrorist act, which is what the purpose of the amendment is which you would seek to defeat? I do not think the public would agree with you. If you thought about it carefully, I do not think you would even agree with yourself.
These orders are unusual orders. They are invasive, which is why they need to be hedged in by safeguards, by high thresholds, by parliamentary review. All of those are part of the architecture of this legislation. Thus far in Australia there have only been two control orders issued under federal legislation, and I think there were recently one or two issued under the corresponding New South Wales state legislation. But so sparingly and carefully have these control orders been used that in a decade they have only been resorted to twice. So, to those like my friends at the Gilbert + Tobin Centre for Public Law who are fearful that this is invasive of liberty, it is invasive of liberty, potentially, but only so seldom because caveated by so many qualifications and thresholds and tests that need to be satisfied, only in circumstances where they are actually serviceable to prevent the commission of a terrorist crime. That is why we are asking the parliament—and the opposition, I am pleased to say, agrees with us—to agree that they ought to extend to conduct by which, on reasonable grounds, there is a belief or suspicion that the conduct will constitute the facilitation of a terrorist crime.
Senator Wright, it might be helpful if I outline the opposition's position before you move to make further comments. These amendments relate to limiting the use of control orders to require a clearer, stronger nexus between the activity of a person and the commission of a specific criminal offence, rather than as a preventive measure. As Senator Brandis indicated, Labor will be opposing this amendment. We understand the Greens Party's proposition that it is preferable for antiterror activity to focus on the commission of criminal acts and on seeking prosecutions and convictions for those criminal acts. The joint intelligence committee said:
The Committee strongly agrees that arrest, charge and prosecution under criminal offences is always preferable.
Labor endorses that sentiment. I note, though, that the committee went on to say:
However, the Committee also accepts that there are increasingly situations in which security interests require action to be taken by police at a time before the standard of evidence required for criminal prosecution can been obtained. In the current environment, these situations require not only the capacity to directly prevent terrorist acts, but also to prevent persons from providing support for or facilitating terrorist acts.
I direct Senator Wright and her Greens party colleagues to the amendments that Labor has supported in this bill—some of which Senator Brandis was referring to a moment ago—to tighten the process for granting control orders. I note that the government has accepted the committee recommendations that the monitor consider in a holistic way whether the 2013 COAG review recommendations concerning the reform of the control order scheme should be enacted. I also direct Senator Wright to the amendments that Labor supported to the foreign fighters bill providing that the entirety of the control order scheme will be subject to statutory review by the intelligence committee and the monitor and will sunset two years after the next election.
I thank Senator Collins for her comments. If I could come back to the comments that were made by the Attorney-General: Attorney-General, you are determined, in a touching way really, to cling to your identity as a champion of human rights in Australia. Your identity as a Liberal is obviously very important for you. But, with any and all your statements to this effect, the talk does not change the fact that you are presiding over some of the most drastic changes and limitations to human rights that we have seen in Australia. To dismiss or characterise the concerns that I have been articulating today, as you did, as being those of a university department or a university academic is just ludicrous and dismissive of the many voices in Australia that are raised about these issues. You seek to reassure the public by saying that there have only been two control orders issued by the Commonwealth thus far, but the very implications of this legislation, if it is passed, are that control orders will be easier to get and there will be fewer safeguards. So it is logical to conclude that we can certainly expect to see more.
I will not be seeking to move these amendments together. I want to deal with amendment (8) separately to amendment (9). I understand that amendment (9) is in conflict with a previous amendment that has been passed.
The TEMPORARY CHAIRMAN: You do have the right to do that. Please continue with amendment (8).
I move amendment (8):
(8) Schedule 2, page 12 (before line 4), before item 1, insert:
1A Section 3
Note: The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ( ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
I will speak to both amendment (8) and amendment (9) together, although we will move them separately. These amendments are in relation to prohibiting the use of torture in ASIS operations. So the current legislation that we have been debating, the changes proposed in schedule 2, will make it clear that it is a function of ASIS, Australia's overseas spy agency, to provide assistance to the Australian Defence Force in support of military operations and to cooperate with the ADF on intelligence matters. However, these changes in the current legislation that we are considering are not accompanied by any safeguards to protect against ASIS engaging in activities that could amount to torture.
These amendments from the Australian Greens would prohibit ASIS specifically and clearly from engaging in conduct that could amount to torture. The amendments are necessary because the scope of ASIS activity as authorised in the Intelligence Services Act 2001, which I will call the IS Act, is extremely broad and will be further extended if this bill is enacted. Under section 14 of the IS Act, ASIS officers are not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency. That is a significant thing to contemplate—that if the act is done in the proper performance of a function of the agency, they will not be subject to any civil or criminal liability for that act.
This has given rise to concerns that if the scope of ASIS activities are extended by this bill to include the provision of assistance to the Australian Defence Force—and this has been a concern that has been raised by human rights organisations in Australia—this could lead to the targeted killing of Australian citizens fighting in Iraq and Syria, or other acts constituting serious human rights incursions, including torture. There are currently no specific protections in the IS Act to guard against the use of torture by ASIS in its overseas activities. There is limited protection against direct use of violence or weapons by an ASIS officer in subparagraphs 6(4)(b).
However, the Parliamentary Joint Committee on Human Rights in its most recently tabled report, report 16 of this parliament, has noted with concern that there are a range of techniques that may constitute torture, which would not fall within the meaning of 'violence'. So these Australian Greens amendments seek to make it crystal clear that ASIS officers must not be involved in any conduct that would be contrary to Australia's obligations under the convention against torture. I note that the Parliamentary Joint Committee on Intelligence and Security recommended that the explanatory memorandum to the bill should be amended to make it explicit that the Intelligence Services Act does not in any way permit torture.
I can go to some further points at this stage referring to the Parliamentary Joint Committee on Human Rights report at paragraph 1.81. I am not sure if the Attorney-General will have had an opportunity to read this yet, but I will read from that report, which articulates the concerns that these Greens amendments are seeking to overcome:
Under the ISA—
the Intelligence Services Act—
ASIS staff are not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency. ASIS staff also have civil and criminal immunity in certain circumstances for acts done inside Australia. ASIS staff may be involved in a range of intelligence gathering activities so long as they do not involve planning for, or undertaking, paramilitary activities, violence against the person, or the use of weapons (other than the provision and use of weapons or self-defence techniques). However—
and this is the important aspect—
torture or cruel, inhuman or degrading practices, is not specifically mentioned. A range of techniques may constitute torture or cruel, inhuman or degrading practices, that do not fall within the prohibition of violence against the person. This may include, for example, death threats, hooding, stress positions or deprivation of food or water.
The Australian Parliamentary Joint Committee on Human Rights report goes on to state at 1.83:
the International Covenant on Civil and Political Rights and the convention against torture—
when providing for civil and criminal immunities for acts done by ASIS, there should be a clear and explicit prohibition on acts or support for torture or cruel, inhuman or degrading treatment or punishment.
And the committee recommends at 1.84:
… to be compatible with human rights, the ISA be amended to explicitly provide that no civil or criminal immunity will apply to acts that could constitute torture or cruel, inhuman or degrading treatment or punishment as defined by the Convention against Torture.
That is the definition that is recognised at international law. The report also states:
The committee also recommends that, to be compatible with human rights, the ISA be amended to explicitly provide that ASIS must not provide any planning, support or intelligence where it may result in another organisation engaging in acts that could constitute torture or cruel, inhuman or degrading treatment or punishment as defined by the Convention against Torture.
That is the basis of these Greens amendments. We seek to make it crystal clear that ASIS may not engage in torture and that civil or criminal immunity from such acts would not attach to ASIS officers if they were to do so.
I rise to indicate my support for the Greens amendment—this particular Greens amendment. Torture is an issue on which I have also taken up the cudgels in the case of the first national security legislation. As a consequence of my pressure and pressure from others, the Attorney-General kindly agreed to rule out torture in the case of ASIO's activities within Australia in the context of special intelligence operations.
The argument here is that ASIS, which is operating outside Australia's shores—unlike ASIO—should also be subject to a prohibition on torture. I think it is a perfectly reasonable precaution. It confirms our difference from the uncivilised world of ISIS, or Daesh—or whatever you want to call them—and distinguishes us as a civilised society. If I can misquote a famous legal aphorism when Lord Mansfield said that the air of England is too pure for slavery, I would say that the air of Australia is too pure to countenance torture whether inside or outside the country, if it involves Australian officers.
We are in furious agreement on the topic of torture. This is not a debate about that. I agree with every word that Senator Leyonhjelm just uttered. This is a question of legislative drafting and whether or not what Senator Wright seeks to achieve is already achieved by Australian law, to which the answer is: clearly it is. Senator Wright, I share your sentiment but your amendment is unhelpful because it confuses an issue that is not confused. There is a clear prohibition against torture in Australian law. It is clear that that prohibition extends to all IS Act—Intelligence Services Act—agencies.
I might begin by reminding the committee what the Parliamentary Joint Committee on Intelligence and Security said about the matter. It said in paragraph 3.67 of its report:
The Committee also received evidence that suggested an ambiguity exists in the IS Act that may permit torture. While the Committee does not accept this evidence, the Committee considers the Explanatory Memorandum should be amended to make it explicit that the Intelligence Services Act 2001 does not in any way permit torture.
I think it is not necessary to say that even in the explanatory memorandum, because the statutory language is very clear. However, out of deference to the Parliamentary Joint Committee on Intelligence and Security, we have included the statement which they sought in the addendum to the explanatory memorandum on page 3. Let me read it into the record. This was circulated this morning. The addendum to the explanatory memorandum says:
In its advisory report on the Bill, the PJCIS suggested that the EM be revised to explain why the Intelligence Services Act 2001 (IS Act) already prohibits IS Act agencies including ASIS from engaging in conduct constituting torture or cruel, inhuman or degrading treatment or punishment in contravention of Australia’s international obligations.
The explicit function conferred upon the Australian Secret Intelligence Service (ASIS) in no way changes the prohibition in subsection 6(4) against ASIS engaging in violence against the person which would include torture or cruel, inhuman or degrading treatment or punishment.
Such conduct would not be in the proper performance of a function of ASIS, nor would it be in the proper performance of a function of any other IS Act agency as required by section 12 of the IS Act. Accordingly, such conduct would not fall within the protection against civil or criminal liability under section 14 of the IS Act.
I have read in full the additional comment in the explanatory memorandum but, if I may, let me take you through it in my own words. Section 14 of the Intelligence Services Act—which, with respect, you did not quote accurately, Senator Wright—provides:
A staff member or agent of an agency—
and that includes ASIS—
is not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency.
The qualifying words bear directly on the point you make, Senator Wright. It is conditioned by the conduct or the act being done in the proper performance of a function of the agency, which prescribes a double test. First of all, the protected act has to be done in the performance of a function of the agency. So, if it is not in the course of a function of the agency, it is not protected. Secondly, it has to be in the proper performance of that function. So even an act which was jurisdictionally within the function of an agency but did not constitute the proper performance of that function would not be caught by the exclusion.
If you go to section 6 of the Intelligence Services Act, which specifies the function of ASIS, there is this explicit prohibition:
In performing its functions, ASIS must not plan for, or undertake, activities that involve:
(a) paramilitary activities; or
(b) violence against the person; or
(c) the use of weapons;
by staff members or agents of ASIS.
Again you misquoted that, Senator Wright. You said it had to directly involve violence. The word 'direct' does not appear in the subsection at all. There is an exclusion from the functions of ASIS any conduct that involves violence against the person. So any conduct that does constitute violence against the person is not a function of ASIS and therefore the protection in section 12, which is conditioned on the conduct being in the proper performance of a function of ASIS, simply does not apply. It is not a very hard concept to grasp. But you say, Senator Wright—and Senator Leyonhjelm also makes the point—that we do not have a definition of 'torture' and the word 'violence' might be read more narrowly than the word 'torture'. I think that is the point you were trying to make, Senator Wright, but that is not correct, for two reasons. First of all, we actually do have a definition of torture in Australian law, and it is to be found in section 274.2 of the Commonwealth Criminal Code, in particular in subsection (2), which makes it clear that the concept of torture involves the infliction of severe physical or mental pain or suffering on a person and where the conduct is engaged in by reason of discrimination of any kind and is engaged in in the capacity of a public official. It is clear from the way the Criminal Code defines torture that it involves violence other than physical violence; so if an ASIS agent were to engage in torture that would be an act of violence and therefore the exclusion of liability in section 14 would not protect that person from that conduct.
There is another reason as well, Senator Wright, and that is: Australia is a party to the UN convention against torture, as you know. The UN convention against torture has not been specifically enacted in domestic law but, as I hope you know, Senator Wright, the fact that an international treaty to which Australia is a party has not been enacted according to its terms in domestic law does not mean that it lacks relevance to the proper interpretation of Australian law, as the High Court has said in a number of cases. Probably the best known is a decision of some 20 years ago called Teoh, a decision of the Mason court. In construing executive acts or in interpreting legislative instruments, one of the things to which the courts will have regard is compliance by Australia with its international obligations. So the construction of the concept of torture in Australian law would undoubtedly be informed by the definition of torture in an international instrument to which Australia is a party. For both of those reasons—because we have a definition already in the Criminal Code and because the definition in the international convention would be significant in construing another act of parliament or another section of an act of parliament, following the High Court's decision in the Teoh line of cases—your concern is ill founded. Violence: no ASIS officer can engage in violence
Torture: conduct that constitutes torture would certainly, because of the way 'torture' is defined in both the UN convention and in the Criminal Code, extend to acts of violence, and violence would include that definition of torture. Therefore, the prohibition which you seek to introduce already exists in our current law. So, I am not disagreeing with your intention here, Senator Wright and Senator Leyonhjelm, I am telling you that, as a matter of law, Australian law already contains the prohibition you seek to introduce.
Ahead of Senator Wright responding, I think it is timely for me to indicate the Labor position in relation to these amendments. We oppose them for much the same reasons as Senator Brandis has outlined. They are, essentially, redundant. We are, of course, steadfastly committed to Australia's international obligations under the convention against torture. In the previous two national security bills we supported amendments which substantially addressed torture that have been referred to in part by Senator Leyonhjelm. In the first bill we supported amendments to clarify that immunity conferred on participants in special intelligence operations would never encompass immunity for acts of torture. In the second bill we supported amendments which broadened the protections against the use of foreign evidence obtained by torture or by duress.
This amendment, however, would have no genuine effect. As the Attorney has already indicated, torture is already prohibited by Australian law. It is already the law that ASIS may not engage in acts of torture. We will not be supporting the addition into the act of what is, essentially, a redundant provision. This is simply a matter of good policy regarding drafting and avoiding confusion in statutes. I understand that the government has also made this position clear in the explanatory memorandum of the bill.
Given that we are all supposedly in furious agreement about a situation whereby ASIS officers working in overseas jurisdictions can have no truck with torture, I am not sure why we have a situation where it takes the Attorney-General about 10 minutes to lead us on a labyrinthine path to explain why, ultimately, we can be convinced that torture would not be a proper function of ASIS, or activities that involve torture. We have not even come to activities that involve planning and assisting other organisations. The spectre of Abu Ghraib and places like that spring to mind, but we will come back to that.
If we are in furious agreement and if it has been seen fit to amend previous legislation to make it crystal clear that acts constituting torture have no place in the functions of people acting in Australia's name, why then don't we, from the principle of legislative clarity, change the IS Act to ensure that it is very clear. Clearly, paradoxically, it is not clear. If it were clear we would not have legal commentators in Australia raising this as a concern. These are experts in international law. These are people who want to be reassured that we are protected in Australia from anyone acting in our name conducting anything that would amount to torture under international law. We have those voices raised because, indeed, it is not clear.
When I was referring to the IS Act I did, in fact, talk about the proper functions. I did read that word 'proper'. I did not leave that out. It is the proper performance of a function, or a performance of a proper function, under the agency. We have had concerns raised that the IS Act talks about violence but does not specifically refer to torture. We have had the Attorney-General take us to the Criminal Code to give us the definition of torture, which is not the same definition as under the convention against torture,—it does not take that international law definition of torture—to reassure us that, somehow, because violence is prohibited that then encompasses torture. Legitimate concerns have been raised that actions like hooding, like deprivation of liberty in a dark room, like extreme and prolonged loud noises and music over a period time, and other potential actions may not be caught within the definition of violence against the person.
My question is really quite simple, and I put this question to the Attorney-General and I also put it, rhetorically, to the opposition. If you are genuinely concerned about the fact that we will not give civil and legal immunity to ASIS officers engaging in acts of torture, why don't we make that crystal clear, without ambiguity, in the IS Act as recommended by the Parliamentary Joint Committee on Human Rights? Why leave any ambiguity there at all?
Because there is none; that is the simple answer to your question. There is no ambiguity at all. Senator Wright, I did not think my explanation was particularly labyrinthine—I am not Theseus in pursuit of the minotaur here. Just because somebody might, artlessly, make a claim that something is unclear, perhaps that merely means it is unclear to them. I used to lecture in international law, Senator Wright, at Australia's best law school, so, if you are going to rely upon what international legal academics have to say, there is only one person in this chamber who has taught international law, I think, and I can tell you that there is no ambiguity whatsoever on this question. The fact that it may be obscure to some does not mean that it is obscure.
I want to take the Attorney-General to the other issue that has been raised, which is the fact that the prohibition on ASIS staff undertaking paramilitary activities, undertaking acts that involve violence against the person or the use of weapons does not preclude ASIS staff from being involved in the planning of activities to be carried out by other organisations. As I said, the spectre of Abu Ghraib and other very concerning incidents that have happened over the last few decades in terms of the treatment of prisoners and so on is very heavy in my consciousness. What prohibition would there be on ASIS staff being involved in the planning of activities that would then be carried out by other organisations that would be committing torture?
Section 6(4) because the word, which is a word of very broad meaning, on which section 6(4) turns is 'involve'. Let me read it to you again:
(4) In performing its functions, ASIS must not plan for, or undertake, activities that involve:
(a) paramilitary activities; or
(b) violence against the person; or
(c) the use of weapons …
So it is more than a prohibition on the officer being personally the actor in, for example, an act of torture. Prohibition is much broader than that. The prohibition is on planning for or undertaking activities that involve violence against persons. You seem to be assuming that the prohibition is limited to the particular ASIS officer or agent, but it is not; it is much broader than that. I have to say again, with all due respect, Senator, your concern is misplaced.
I am going to ask for the Attorney-General's indulgence and ask him to read again for me—I do not have it available to me—the definition of 'violence' in the Criminal Code. You read it to me earlier—and I was listening carefully—but if you would not mind reading that to me again, that would be of assistance to me, thank you. That was part of the response you gave in seeking to reassure us that ASIS officers could not act with impunity in matters that involve torture.
Actually I did not read you a definition of 'violence' from the Criminal Code. There is not a definition of 'violence' in the Criminal Code. There is a definition of 'torture' in the Criminal Code and that is what I read. The point I was making to you, Senator Wright, is that the use of the word 'violence' in section 6(4) of the Intelligence Services Act is a word sufficiently embracing that it would include torture. That means more than just physical violence because 'torture' is defined to mean more than physical violence. It might be more useful, Senator Wright, if I read you something else from division 274 of the Criminal Code—a point I should have made in my earlier contribution, so thank you for reminding me. The definition in section 274.1 says:
(2) An expression that is used both in this Division and in the Convention (whether or not a particular meaning is given to it by the Convention) has, in this Division, the same meaning as it has in the Convention.
And 'convention' is defined as the convention against torture—that is, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the UN General Assembly at New York on 10 December 1984. I omitted to make the point, which I should have made before, that the definition of 'torture' in the Criminal Code embraces the convention definition. The words in section 274.2 are not the very words used in the convention, but to the extent of any inconsistency the broader definition of 'torture'—that is, the definition to be found in the convention—is the operative definition, so in that sense, through the definition provision in section 274.1, the UN convention definition is imported into Australian law.
I am trying to make sense of the argument that you have put, Attorney-General, because I would like to be reassured about this. So the word 'violence' is used in the IS Act and then you have said because the use of the term 'violence' is included in the definition of 'torture' in the Criminal Code, therefore that definition in the IS Act would encompass violence. I am genuinely trying to make sense of the way we can be reassured that torture can at no time be considered to be—or acts amounting to torture, inhuman, cruel, degrading treatment—a proper function of an IS officer.
It cannot be. I will try this once more, Senator, and I hope I am not going to be too labyrinthine for you. There is a prohibition against an act of violence—against an ASIS officer being involved in either planning or undertaking an act of violence. So that if an ASIS officer were to be involved in the planning of or to undertake an act of violence then the statutory protection from liability, which he or she might otherwise seek to avail themselves of under section 14 of the Intelligence Services Act, does not apply because no ASIS officer can engage in an act of violence in performance of their functions.
'Violence' is not defined but violence plainly includes the common speech meaning of 'torture', which at its narrowest definition involves the infliction of physical suffering. But 'torture' has a broader definition than that in our law by virtue of section 274 of the Criminal Code both because of the way in which it is described in that section but also because, as I have just pointed out, by section 274.1, the UN convention definition of 'torture' is imported into Australian law and to the interpretation of any relevant provision of Australian law, including the specific provision of the Criminal Code. So if 'violence' equates to 'torture', as it does, and 'torture' has the meaning of the UN convention, which it does, then you can follow—and I do not mean to be labyrinthine, Senator, you can follow yourself—that the UN convention definition constitutes part of the prohibition in section 6(4) of the Intelligence Services Act.
I suppose the premise of that is that 'torture' equates to 'violence' and that is where there is concern that that actually is not the case. That has been raised as a concern. Clearly some aspects of torture that would be within common understanding—electrocution, beatings, things like that—would clearly be violence, but to suggest that 'violence' equates to 'torture' I think is the challenge here, because examples of what have been and what would be considered to constitute 'torture' under the convention against torture—things like hooding, death threats, stress positions or deprivation of food or water—may not be so unambiguously considered to be violence against the person in that way, because it is not defined. I guess I would ask you, at the risk of asking you a hypothetical question—and I know you really do not like those very much at all—but I think for the sake of clarity I am going to ask you: if someone was hooded, held naked and forced to, over a period of time, hear things about their family or their religion, would that equate to violence?
Well, in my view, it would. So the answer to your question is yes. But can I point out to you that if there were any ambiguity about this, which I do not think there is, but if there were any ambiguity about this that is why the PJCIS recommended that there be a clarifying statement to the effect of what I have just said in the explanatory memorandum. I have read to you in full—I have read onto the record—what appears in the addendum to the explanatory memorandum circulated this morning, which makes it perfectly clear that 'violence' equals 'torture.
(9) Schedule 2, page 12 (after line 11), after item 2, insert:
2A After section 6
In performing its functions, ASIS must not engage in any conduct that would be contrary to Australia's obligations under the Convention Against Torture.
This amendment would add a specific prohibition against torture. For reasons that have been thoroughly canvassed in the debate on the previous amendment, the government does not support the amendment. The same issue arises in relation to this amendment as arose in relation to the last amendment, and I will not repeat what I had to say in those remarks.
I have moved this Greens amendment because I am concerned that there remains an ambiguity. I am concerned as to why the government is willing to allow this ambiguity to remain in terms of activities undertaken by ASIS officers outside Australia in situations where potentially there may be things done in our name that certainly most Australians would be very unhappy to know were occurring. That said, I am moving the amendment.