Tuesday, 8 November 2016
Counter-Terrorism Legislation Amendment Bill (No. 1) 2016; Second Reading
I continue my remarks on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016.
Moreover, the evidence presented may well be derived solely from information provided by foreign intelligence agencies, without our own security and intelligence having completed their own investigations or analysis. No doubt the government is thinking of the need to act quickly in response to intelligence, especially highly classified communications or signals intelligence obtained from Australia's primary intelligence partners, the so-called 'Five Eyes' of the United States, the United Kingdom, Canada and New Zealand. There may well be cases where urgent action is required. It is also the case, however, that signals intelligence often requires careful analysis, understanding of context and, frequently, extensive additional research.
Moreover, intelligence from foreign sources is not only from our Five Eyes partners. Australia's intelligence agencies have broad liaison relationships, including with some foreign intelligence and security services, some of whom have reputations that are, at best, mixed. The government keeps the details of those relationships highly classified, but it is not unreasonable to consider the possibility that a person might be subject to an application for a control order on the basis of information not from the British Security Service or the US Central Intelligence Agency, but from, for instance, the Jordanian General Intelligence Directorate or Pakistan's notorious Inter-Services Intelligence. The potential for injustice similar to that involved in the Haneef case is clear. However, we will never know the story because the whole process will be secret.
More broadly, the implementation of this regime—the arguments and decisions for imposing control orders—will be a further step in the development of a body of secret legal opinion and precedent. Courts will take secret decisions on the basis of secret information; precedents will be set. Secret courts and secret law are never a desirable development. Senators should be very clear in their understanding of what is proposed here.
While the Law Council of Australia has welcomed the inclusion of the special advocate scheme as a measure that will mitigate the procedural unfairness identified in the original bill—and I welcome it—it has also recommended an immediate review by the Parliamentary Joint Committee on Intelligence and Security. I note that there are no crossbenchers on that committee.
There are certainly very significant issues raised by these provisions of the bill. To take but one example in relation to legal professional privilege in communications between the special advocate and the person subject to a control order: the court will be responsible for on-forwarding communications between the special advocate and the party, with a responsibility to ensure that such communications do not prejudice national security. Significantly, there is provision for the court to consult with the Attorney-General or his or her representative in determining whether a communication may prejudice national security. The Attorney-General and his representatives will thus be privy to communications between the special advocates and persons subject to a control order. Significantly, while special advocates will be appointed by the courts, it is the executive that will prescribe by regulation the requirements a person must meet in order to be appointed as a special advocate.
The Attorney-General has acknowledged that while the bill creates the architecture for a special advocate role:
… some time will be needed for the supporting regulations and administrative arrangements to be established for the regime to work.
Given the obvious importance of the special advocate role in what is proposed, it would be much better if these arrangements were incorporated within the bill and the entire proposal subject to further parliamentary committee scrutiny. These are matters that ought quite reasonably to be asked of the Attorney in the committee stage.
The other provisions I wish to focus on now are those relating to the secrecy provisions of section 35P of the Australian Security Intelligence Organisation Act 1979, which implement the government's response to recommendations made by the Independent National Security Legislation Monitor. Schedule 18 broadly implements the recommendations made by the Independent National Security Legislation Monitor in his report on section 35P of the ASIO Act, which was a scathing report on section 35P.
That report arose from the previous failure of the parliament and the Parliamentary Joint Committee on Intelligence Services in considering the government's original proposals for draconian secrecy provisions relating to the conduct of special intelligence operations by ASIO. I voted against those provisions. They were something the joint committee said ought to be passed, and they were passed by the parliament. But that change was subsequently referred to the Independent National Security Legislation Monitor, the Hon. Roger Giles AO QC, a former Federal Court judge and eminent lawyer and jurist. Quite frankly, I am sad to see him go. He has retired or resigned from that position.
Professor Clinton Fernandes, a former army intelligence officer, now a professor of the University of New South Wales at the Australian Defence Force Academy, and I made a joint submission to that inquiry. No other members of parliament made a submission at that time. Our main concern was the chilling effect that the new law would have on scrutiny of ASIO's operations, especially through media reporting. After conducting his inquiry, Mr Giles observed that section 35P:
... creates uncertainty as to what may be published about the activities of ASIO without fear of prosecution. The so-called chilling effect of that uncertainty is exacerbated because it also applies in relation to disclosures made to editors for the purpose of discussion before publication.
Mr Giles went on to say:
Journalists are prohibited from publishing anywhere at any time any information relating to an SIO, regardless of whether it has any, or any continuing, operational significance and even if it discloses reprehensible conduct by ASIO insiders.
That is quite chilling. The underlying issues were summed up by the INSLM as follows:
The basic problem with section 35P is that it does not distinguish between journalists and others (outsiders) and ASIO insiders. The application in this manner of broad secrecy prohibitions to outsiders is not satisfactorily justified, including by precedents in Australia or elsewhere.
Mr Giles also made this point:
Section 35P is arguably invalid on the basis that it infringes the constitutional protection of freedom of political communication. Section 35P is also arguably inconsistent with article 19 of the International Covenant on Civil and Political Rights and so not in accordance with Australia's international obligations.
The fact that that legislation got a tick of approval from the PJCIS and enjoyed bipartisan support from the coalition government and the Labor opposition tells me that parliamentary scrutiny of new counterterrorism and national security legislation needs to be much more rigorous and robust.
We now have before us the government's effort to put things right on the basis of recommendations made by the INSLM, Mr Giles. These amendments aim to introduce new protections to section 35P by establishing two separate offence regimes, with one regime to apply to persons who came to the knowledge or into the possession of the relevant information in their capacity as an entrusted person and a separate regime for outsiders. Under these new regimes the disclosure of information made by members of the community, except those who received information in their capacity as an entrusted person, will only constitute an offence if the information will endanger the health or safety of a person or prejudice the effective conduct of a special intelligence operation. The amendments will also establish a defence of prior publication available only to persons who did not receive the relevant information in their capacity as an entrusted person. This bill reflects the INSLM's view that it is appropriate to retain disclosure offences, and that the special intelligence operation scheme is both necessary and proportionate.
The government argues that its agreement to implement all of the INSLM's recommendations regarding section 35P demonstrates its commitment to ensuring that we are achieving 'the right balance between the public interest and our national security requirements'. I agree that the amendments within the present bill are an improvement on the provisions of section 35P that were previously passed by the parliament. However, I do make the point that they are measures of considerable complexity and some ambiguity. Some significant stakeholders have certainly expressed the view that the INSLM's recommendations, and by implication the provisions of this bill, do not go far enough to provide certainty to journalists and others to know what information may be published without exposure to criminal liability or to protect journalists and whistleblowers who might seek to disclose allegations of wrongdoing in the course of a special intelligence operation. These are matters that I hope to raise with the Attorney in the committee stage. For example Paul Murphy, CEO of the Media, Entertainment and Arts Alliance, stated:
The Monitor’s report, while welcome, has not changed the fundamental intent of section 35P which is to intimidate whistleblowers and journalists.
These amendments are certainly worthy of further close and critical scrutiny, if not by the PJCIS then by the Senate Legal and Constitutional Affairs Legislation Committee. That would certainly allow media organisations, journalists, legal experts and other interested parties to make detailed submissions in relation to the precise amendments that are before the Senate now.
There are many other complex and potentially controversial provisions within this bill. While some have been reviewed by the PJCIS, others have not. If we are serious about the balance between security and accountability, between secrecy and scrutiny of our intelligence legislation, there needs to be further debate and review. This is a duty that the parliament, and especially the Senate, needs to commit itself to with every new piece of counterterrorism and national security legislation. With each of these bills we are asked to strike the right balance. With each of them we are asked to trade off hard-won rights and long-established principles in favour of public safety and security. I do not think anyone doubts the importance of public safety. The threat of terrorism is real and persistent, but that does not diminish our responsibility to look at every measure with objectivity, scepticism and a determination to not lightly deviate from fundamental principles upon which our legal system and democracy rest.
As my colleague Senator Nick McKim has already indicated, the Greens will be strongly opposing the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016, just as we have strongly opposed most of the erosions of basic freedoms that have been pushed through this parliament and previous parliaments over the course of the last 15 years. One of the most noxious elements of the current bill is that it purports to extend the operation of control orders to children as young as 14. For the people who may be listening, control orders are the instruments which allow a court to make an order, on the evidence of the Federal Police, that severely restricts the movement and the freedoms of an individual.
There has been much debate about control orders in the past. The former Independent National Security Legislation Monitor, Bret Walker SC, said that there is no need at all for control orders—that is, control orders simply serve no purpose. Mr Walker pointed out that existing provisions are more than sufficient to achieve the purpose of keeping the community safe from possible acts of terrorism and other violence—that is, his belief was that the same could be achieved through existing provisions, existing laws. If there is any evidence that would justify the restriction of somebody's freedom on the basis that they are planning to commit an act of violence, then that person should be placed under conditions of bail or, indeed, remanded in custody. That is our view and that it is consistent with the view of Bret Walker SC.
Senator Xenophon just referred to the current Independent National Security Legislation Monitor, Mr Roger Gyles QC, who was a former Court of Appeal judge in New South Wales. He was also of the view that much stricter safeguards in relation to control orders are warranted. He has made it very clear that, if control orders are to exist, we need much stricter safeguards. So here we have two fine minds, two esteemed legal professionals, who have made it very clear that they see no case for expanding control orders and yet here we are in this parliament, after almost 15 years of legislation that has opposed very basic freedoms, with a government proposing to apply control orders to 14-year-old children. The Attorney-General's claim is that this measure is necessary because adults are now using 14- and 15-year-old children to get around the control order regime as it already applies to adults, but of course using that logic begs the question: what happens when this bill passes and adults work out that they can do what they were doing previously using 12- and 13-year-old children to get around control orders, or perhaps younger children? Should we apply them to 10-year-olds or eight-year-olds? Are we then to look forward to yet another bill in the future which extends control orders to children barely out of primary school?
In its submission to the inquiry of the Parliamentary Joint Committee on Intelligence and Security into the previous version of this bill, the Australian Human Rights Commission—and we do have respect for the Australian Human Rights Commission, unlike some others in this place—said:
The Commission is not aware of what evidence there is to support these claims—
that is, about lowering the age for control orders—
… However, they are, on their own, insufficient to demonstrate that allowing control orders to be granted for children between 14 and 15 would be necessary and proportionate …
It is a view that was echoed by a number of other organisations in their submissions to the same inquiry. We had the Muslim Legal Network's submission, which again said that on their own they are insufficient to demonstrate that allowing control orders to be granted for children between 14 and 15 would be necessary and proportionate.
The unfortunate reality is that this parliament has waved through far too many restrictions on basic freedoms and individual liberties. If we reflect on how a control order works in practice, we can see just how profound the impact is with the restrictions of individuals. Suspects who are subject to control orders might need to wear tracking devices. They might face curfews. They might be restricted from using phones and from communicating with particular people. They might be restricted from using the internet. All of this is in the face of suspects sometimes being denied knowing what the evidence is against them. They may not in fact be facing any criminal charge. These are people who are rounded up and sometimes not told what evidence the police may have against them. They may not be facing any criminal charge, yet they are faced with significant restrictions on individual liberties. Of course, any breach of a control order carries a maximum penalty of five years imprisonment. You have to ask yourself: at what point does a democracy look less like a democracy and more like a police state?
I was having an interesting conversation with some members of the Muslim community, and a young man who migrated to Australia from the former Yugoslavia spoke about the nation that he knew and that he grew up in and how slowly the country he grew up in and loved changed with further restrictions on individual liberties and went from being a democracy to essentially a police state. His view was that many of these changes happen incrementally and chip away over time and, at some point, the nation you once knew becomes unrecognisable.
We have seen over the past 15 years an incremental chipping away at our basic freedoms and liberties. I say 'incremental' for most of these changes, but occasionally there are extraordinary leaps and the changes are significant. It is for that reason that Australia is now commonly recognised amongst developed countries as having some of the most restrictive anti-terrorism legislation in the democratic world.
I have said this on a number of occasions, as have many others: you do not remove freedom in order to protect it. That is not how you protect individual freedom. Removing freedom is not the way to protect it. You cannot protect liberty by locating more of it behind a police line. We have to remember that if you are fighting a real threat—and, of course, we acknowledge that there are significant threats—you do not do it by becoming more like the threat that you are facing. Of course we should be taking sensible, evidence based actions to prevent acts of terrorism and violence—no question. We understand that the threat is real. But the key here is that the response must be both sensible and evidence based. It needs to be proportionate and measured.
The tendency, sadly, of this parliament has been to simply sign off on more and more restrictions on individual freedoms, often on the vague justification of national security. It is a great shame that there has not been a full and frank debate in this place about what we are giving up. There has not been the scrutiny that is required of this sort of legislation, largely because we have seen both a government and an opposition that are too afraid of being seen as soft on terrorism to ensure that we have scrutiny of legislation that removes some of the most basic individual freedoms and liberties. Yes, there is an issue that needs to be addressed. We are seeing young people being radicalised and we are seeing people who are engaged in violent activities. Often they are groomed through the internet, sometimes via a particular self-proclaimed religious leader. They are recruited into a hateful ideology, the ideology of ISIS and many other extreme groups. We know that these are toxic ideologies and of course we should be doing everything in our power to prevent their reach to our young people. But people who work in this area, who are experts in the field of youth radicalisation and this extremist ideology, say time and time again that the very worst thing that the Australian state can do is to buy into the logic of fear, division and marginalisation. Unfortunately, that is what bills such as this one do. Again, let's remember what part of this legislation seeks to achieve. A 14-year-old child can be rounded up, locked up and have their freedoms restricted, all without charge, and for a breach face imprisonment for five years. It is social cohesion—not division, not demonisation and control and, more and more, not just surveillance of particular individuals—that is going to help keep our community safe.
We should acknowledge that it is Australia's very successful and quite unique model of multiculturalism—our celebration of cultural differences within our diverse Australian nation—which represents our greatest strength and our real protection from some of the acts that we have seen in other parts of the world. People of different cultures working together, going to school together, learning from each other, building trust within communities and creating families together are Australia's true strength and our best defence against this poisonous ideology. The most toxic effect of this bill and other, similar bills is that they do the opposite. They drive more fear and more division within our community. All you have to do is spend five minutes talking to members of the community who practise the Muslim faith to know exactly how they are feeling. They feel that they have been isolated, marginalised and demonised and they see division being sewn within their community.
Let's be clear about the impact of this legislation—I accept that it is not the intention but it is the consequence. Again, speaking to members of the Muslim community, when you hear young people say, 'We are afraid of putting deep roots into our community because we worry that at some point in the future we will have the authorities knocking on our door,' you know just how deep that fear is. Let's not beat around the bush here. There are some communities in Australia who will cop the brunt of this country's ever-expanding national security enterprise. As I said, I do not think that is the intention of the government or indeed the opposition when they put up and vote for bills like this, but everyone of us who votes in this chamber must be aware of the implications of our vote: that we are making our community less safe rather than more safe. Regardless of what we intend, we have to be aware that when we support bills like this we are ensuring that particular minority communities in Australia will be targeted even more, and that does not support our efforts at enhancing social cohesion.
It is for those reasons that the Greens are voting against this bill. We do want to keep our communities safe, but we do not believe this is the vehicle to do that. We do not agree that there is a basis for this legislation. We are deeply concerned at the continual erosion of our basic freedoms and liberties, because, when we give up those freedoms and liberties, those people with whom we are fighting—they win. We believe that ultimately this legislation will drive a deeper wedge between members of the community who are concerned about the impacts of terrorism and those members of the community who will be targeted by this legislation. We understand that Australia's diversity is our great strength. We understand that people of different cultures coming together, working together is how we combat some of the threats that Australia faces.
The Greens will be voting against the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 and we urge the government and, indeed, the Labor Party to rethink their position on this bill.
I rise to speak in favour of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016. This bill was first introduced into the last parliament in November 2015 and was immediately referred, of course, to the Parliamentary Joint Committee on Intelligence and Security. The joint committee held public hearings and received submissions in December 2015 before reporting in February 2016, and the parliament was, of course, prorogued before either house had a chance to consider the bill.
Before turning to the specific provisions of the bill I wanted to take a moment to discuss the importance of this oversight process provided by the parliamentary joint committee and to touch on Labor's approach to security legislation in general. Since the September 11 attacks in 2001, the Australian parliament has debated and enacted 65 pieces of anti-terrorism legislation. Taken together, they constitute substantial changes to the architecture of Australia's security legislation framework. These changes have been made in the face of emerging and serious threats to our national security. These threats are not abstract and they are not distant. Australians have been affected by terror plots both at home and abroad, and the work of our law enforcement and security agencies has prevented Australians from being affected by many more.
Earlier this year we understood that there were more than 100 Australians fighting or engaged with terrorist groups in Iraq and Syria and many more providing support or facilitation from Australia. Australia's national terror threat is currently set at 'probable'. This means there is credible intelligence indicating that individuals or groups have both the intent and the capability to conduct an attack. It is incumbent upon us to respond properly to this threat. As a parliament we have no more important responsibility than to do what is appropriate and necessary in protecting the safety of the Australian people. However, we will not meet this demand that is made of us by simply voting in favour of security legislation in the form in which the government initially proposes it. Parliament must endeavour to find a balance between protecting the safety of our community on the one hand and maintaining the values and the freedoms of our community on the other. The Parliamentary Joint Committee on Intelligence and Security plays an important role in finding this balance.
I was not a member of the joint committee when it considered the present bill, but it is worth turning to what the chair of the joint committee said in the other place when tabling the report on the bill. He said:
I commend the bipartisanship of the committee, but 'bipartisanship' should not be taken to mean that we all sit there and agree with each other on every matter that we have discussed. I can say without breaching any provisions of the Intelligence Services Act that on many occasions there has been much robust conversation with respect to that, but that is the job of our committee—a committee behind closed doors that operates on behalf of the Australian people.
Indeed, in my short time on the committee this has been my experience. As a party, Labor seek to approach security legislation from the position of bipartisanship. We believe that our national security apparatus must be properly equipped to protect Australians from terrorism and this means providing security agencies and institutions with the resources and powers that they need to do this. It is, however, worth repeating what Senator Collins said earlier in the debate today:
…our bipartisan assistance to the government on matters of national security is never a blank cheque. Bipartisanship on national security means that we will support necessary and effective measures to address threats to our nation …
The converse is also true. Ultimately, as a parliament we abrogate our responsibilities if we knowingly support measures that burden people's rights but are not necessary or effective in addressing threats to our nation. The oversight provided by the Parliamentary Joint Committee on Intelligence and Security is an important bulwark against this, and, for reasons I will go on to explain later in the speech, the present bill provides an example of how the joint committee can work together to make sure that security legislation is more appropriate, more properly targeted and more proportional.
As I noted before, however, the Australian parliament has debated and enacted 65 pieces of anti-terrorism legislation since 2001, and with each additional piece of security legislation we are providing greater and further powers to our national security agencies and institutions. Our agencies cannot function properly without the trust and confidence of the public, and nor should they be allowed to. Reliable, effective external oversight is essential in ensuring this. As the powers of the national security agencies grow, so too does the importance of oversight. This is not something that can be left to the courts. A judicial system of course plays an important role in policing the boundaries of executive activity; however, Australians would not, and should not, be satisfied with merely knowing that there is an absence of illegality in the cases that happen to come before the courts. Parliament also plays an important role in ensuring that legislation is appropriate and proportionate.
This is not enough, however. Australians deserve to know that their national security agencies and institutions are effectively, efficiently and appropriately serving the purpose for which they were created, and the joint committee is the forum in the parliament that is best placed to do this job. I quote again from the tabling speech in the other place by the Chair of the PJCIS:
Fundamentally I think the Australian people need this committee to have the capacity to inquire more diligently and more thoroughly into matters that it should be tasked to look at. That would include, potentially, the capacity for the committee to have self-referencing power …
It is for this reason that I commend to this chamber the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015, which is sponsored by Senator Wong. As noted in the second reading speech for that bill:
The maintenance of public security in the current security environment does require enhanced powers for the agencies charged with this responsibility. However, the protection of our hard-won democratic freedoms equally demands enhanced oversight of the exercise of these powers.
The PJCIS Amendment Bill 2015 provides for enhanced oversight by, amongst other things, removing the constraints on membership of the committee and allowing greater flexibility in determining PJCIS membership; providing for the PJCIS to conduct own-motion inquiries after consultation with the responsible minister; authorising the Independent National Security Legislation Monitor to provide the PJCIS with a copy of any report on a matter referred to it by the committee; requiring the Inspector-General of Intelligence and Security to give the PJCIS a copy of any report provided to the Prime Minister or a minister within three months; giving the PJCIS the function of conducting pre-sunset reviews of legislation that contain sunset provisions; and adding the Independent National Security Legislation Monitor and the national security adviser to officers who are able to be consulted by the PJCIS. This is a good bill that will provide necessary and appropriate powers to an important parliamentary body.
I will now return to the bill before us, and I thank the chamber for their indulgence. As I mentioned earlier, the bill provides an example of how the joint committee works in a bipartisan way to make sure that security legislation is more appropriate, more properly targeted and more proportional. The bill that is before the chamber now is not the same as the bill that was introduced in the last parliament. The 2015 bill was referred to the joint committee immediately upon being introduced, and the committee received 17 submissions. The committee made 21 recommendations, subject to which it recommended that the bill be passed. These recommendations have resulted in improvements to the bill which is now before the chamber.
The bill extends the control order regime to young offenders. The committee made a number of recommendations about these provisions. The committee recommended that the bill require the best interest of the child to be a primary consideration. This ensures that the bill is consistent with Australia's obligations under the United Nations Convention on the Rights of the Child. The bill now contains provisions to this effect. The committee also recommended that the bill be amended to expressly provide that a young person has the right to legal representation in control order proceedings. The bill now contains provisions to this effect. As Senator Collins said earlier in this debate, Labor pushed for these amendments in order to make sure that the legislation properly balanced the rights of young people who are the subject of control order proceedings with the safety of the Australian community as a whole.
The committee also made recommendations about the creation of a new offence of 'advocating genocide.' The creation of this offence is in line with the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The joint committee recommended that a fault element of 'recklessness' be included as there were concerns raised by submitters that the offence was drafted too broadly. Specifically, submitters raised concerns that the offence as drafted could have the unintended consequence of limiting reporting of terrorism. The 2016 bill now includes the fault element as recommended.
As Senator Collins set out, there are a number of other recommendations made by the committee, which Labor has pushed to have as amendments incorporated into the bill. Our commitment to bipartisanship does not mean that we offer the government a blank cheque on security legislation—nor, for that matter, do the government's own parliamentarians. In this case, as in many others, the Parliamentary Joint Committee on Security and Intelligence provides an important mechanism for the parliament as a whole to provide proper scrutiny of security legislation, and to make sure it operates as intended and protects our community without unnecessarily burdening individuals. I hope in due course that we will have another opportunity in this place to further consider Senator Wong's private member's bill to enhance the committee's ability to perform this oversight function.
I oppose this bill—the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016—because it significantly, permanently and unjustifiably expands the power of the Commonwealth government to hold people without charge.
The Commonwealth government introduced preventative detention orders in 2005 to authorise the holding of a person without charge for 48 hours. The power can be used in two circumstances. First, the power can be used if detention is reasonably necessary to preserve evidence of a terrorist act that occurred in the last 28 days. Second, the power can be used if detention is reasonably necessary to substantially assist in preventing a terrorist act, on the proviso that the terrorist act 'is imminent and is expected to occur, in any event, at some time in the next 14 days'. The wisdom of allowing preventative detention orders in this second circumstance is debatable, given that authorities have significant power to engage in surveillance, authorities with a skerrick of evidence can detain people by charging them, and detention without charge is a violation of a fundamental right.
But at least this preventative detention is detention—it can only occur on the proviso that a terrorist act is imminent and is expected to occur. Unfortunately, the government now wants to get rid of this proviso. In its place, the government will simply require that relevant officers 'suspect on reasonable grounds that a terrorist act is capable of being carried out and could occur within the next 14 days'. Note the replacement of 'is' with 'suspect'. I can suspect that someone is out to get me, but that does not mean there is someone out to get me. Note also the replacement of the word 'imminent' with 'could'. The difference between these words is as stark as the difference between winning the lottery and merely buying a lotto ticket. If you win the lottery, a massive boost to your wealth is imminent. If you merely buy a lotto ticket then it is indeed the case that a massive boost to your wealth could occur, but it is far from likely and definitely not certain.
The government has not explained why it needs a power to detain people without charge when a terrorist act is not imminent. Instead it has the gall to say that its bill is merely clarifying the law rather than changing it. We should see the pattern here. First, the scaremongers persuade the parliament to enact preventative detention powers by citing all the qualifications and limitations on those powers. Then, with each amendment, these qualifications and limitations get pared back—all in the name of clarification. There is little public sympathy for people who could find themselves in preventative detention, because it is common to assume that police would only ever chose to detain bad guys and would never make mistakes about who is a bad guy and who is not. So when the police asked for beefed up preventative detention powers I can understand why the coalition agreed, and Labor has not resisted. But it is a dereliction of their duty to the public nonetheless.
There are many other retrograde provisions in this bill. The bill ramps up search and surveillance powers used against people who are subject to a control order and denies them access to the information that put them under a control order in the first place. The bill effectively bans computer games that are said to promote terrorism, even though there is no evidence that playing a game makes someone act out the game. The bill makes it easier to get a search warrant and delay telling the property owner about the search. The bill bans the advocacy of genocide. That hurts our ability to identify people with genocidal views and to rebut those views—and inciting genocide is already a crime. So, sadly, once again I oppose the government's counterterrorism legislation and, once again, I find myself in a minority with the Greens. Will the government please give me a break?
Even when the government introduces a good provision it does so in a half-hearted fashion—for instance, this bill amends section 35P of the ASIO Act to reduce penalties for outsiders like journalists who disclose information about special intelligence operations where the information does not endanger health or safety or prejudice an operation. The Independent National Security Legislation Monitor was asked to review 35P, and he recommended this reduction. The reduction is a good thing and is something I called for when 35P was first debated two years ago, but the Senate was full of deaf ears. They were yes-men and yes-women when the government introduced the lengthy penalties, and, as no-one is objecting to this bill's lessening of the penalties, they are clearly yes-men and yes-women now.
The reduction in penalties is a good thing, but it is half-arsed. The offences in 35P for disclosing information about ASIO's special intelligence operations were based on offences for disclosing information about the AFP's controlled operations. Now the government is reducing penalties for journalists when it comes to disclosures about special intelligence operations involving ASIO but doing nothing about the penalties for journalists when it comes to disclosures about the AFP's controlled operations. The logic of penalties for journalists being lower than penalties for insiders is the same whether we are talking about ASIO or the AFP.
But the government is a logic-free zone when it comes to civil liberties and national security. Logically, this bill should be substantially altered, if passed at all. We deserve better. My constructive proposal is to make the coercive aspects subject to a sunset clause of 10 years. In other words, unless re-enacted, they will lapse automatically in 10 years. That will give the government, Labor and the law enforcement agencies plenty of time to determine, objectively rather than anecdotally, whether this constant chipping away at our liberty is actually making us safer and whether, just as we were told there would always be reds under our beds, claims that the threat of Islamic terrorism will be always with us. I am dubious about whether we need this law, but I am certain that we do not need it on the books permanently.
I rise in support of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016, and I will explain why. Yes, it is a shame that 14-year-olds may be dragged before the courts on charges of terrorism and it is a shame what may happen to them, but that is the way of life and that is what has happened to our country. Many Australians are very concerned about terrorism and live in fear. Just recently a poll was taken where 49 per cent of Australians said they wished for a ban on further Muslim immigration to this country, and, of that 49 per cent, 47 per cent based that view on the fact that Muslims do not integrate. Senator Di Natale made a comment here earlier about Muslims saying how they feel marginalised and demonised and that they are afraid. I think the majority of Australians feel very afraid, because we are now seeing terrorism on our streets. People live in fear. I here from many people who say that they are afraid to go on trains or to shopping centres or sporting venues; they are in fear. We need to address this, and I do believe that we need to act with very hard leadership and say that we are not going to allow this to happen on our streets.
We talk about control orders and tracking devices. There are now over 500 Australians who are under surveillance, and the authorities are having trouble tracking them. Why is that so? Why do we have so many people like that here? These people have not come here to Australia for the right reasons. They are here to push their own agenda, their own beliefs. Senator Di Natale says that we are a multicultural nation—and, yes, we are. People have come here from different parts of this world. They have migrated to Australia for a new way of life—to leave behind terror and their way of life for a better way of life. I think that is wonderful, because Australia has been based on all the different cultures that have come here. But what has happened now is that people are coming here not to assimilate, not to integrate, not be one of us, not to abide by our culture, our laws or our way of life. They do not have respect for us. Some carry with them a hatred towards us—and that can never be accepted or allowed to happen.
It is a shame that people as young as 14 years of age could be affected by this legislation—but it is justified. Otherwise, what do we say to the family of Curtis Cheng, who was shot dead by a 15-year-old? What do we tell his family? We are now finding that younger and younger people are wanting to commit these crimes. We cannot allow that to happen. They are not children. They are people with their own beliefs and determinations. They are not a child anymore. People have to start being responsible for their actions, no matter what their age, especially when an Australian's life—I do not care how many there are; even one—may be taken by someone who does not believe in our culture or our way of life and who bears us hate in their heart—and I hate to see it.
You talk about multiculturalism and how Muslims feel offended, demonised and marginalised. When the grand mufti of Australia, Ibrahim Abu Mohammed, wrote a letter warning that to criticise even a gay hating imam is to risk inciting terrorist attacks against us, was he pulled up? Did anyone say he should not be saying that? What about his support of Sheik Shady?
In his online sermons he attacked Jews, called on God to help destroy the enemies, declared that the punishment for adulterers is stoning to death, damned Christian parties as worshippers of Satan, declared that the Australian government is oppressing Muslims and accused gays of spreading diseases through evil actions that bring evil outcomes to our society. What does Senator Di Natale have to say about that—or does he defend that?
No hatred should be accepted from anyone in this country. We are all Australians trying to live in this country in peace and harmony together. That is what I purport and that is what I will stand strongly for. We must take strong actions against these people—anyone, regardless of whether they have a religious or cultural background that opposes our way of life, must be dealt with harshly. Many other countries around the world are now feeling that—and they are attending to the problems in their own country by having these people deported. If these people are not happy in our country then please go back where you came from or go and find another country that suits your beliefs.
I have a duty to the people of Australia to ensure that they feel safe on our streets. I do not want Australia to become like other countries around the world. We talk about people's civil liberties and their rights. Their rights start with them. The majority of Australians are not under the law, they do not have tracking devices and they are not in our court system—because they abide by our laws. We have to send a clear message to other people that we are not going to accept it. That is why I support the government's legislation on this and send a clear message to those who wish to come here and disrupt our way of life.
I will be moving an amendment to this bill. The legislation states that these people will be given free legal aid. Our legal aid system is under enormous stress at the moment. I know of people in the Family Court who cannot get legal aid—they are fighting for their rights—and many who do not get it are suiciding, taking their own life. In Australia, there is no reference in any of the eligibility or assessment criteria documentation that says an applicant for legal aid in criminal matters must be an Australian citizen. I believe they should be. It is the taxpayers who are paying for this, and I think legal aid should be available to Australian citizens or permanent residents. Under our legal aid system if another person supports you, provides financial support to you or can be reasonably expected to provide you with financial help, then the means test will take this person's income and assets into account. My amendment to this bill would add: 'And there is evidence that at least one parent or guardian of the person has the means to appoint a lawyer to act for that person'. That means if a parent or guardian of that child between 14 and 17 can afford to pay for the legal costs, so they should; it is not up to the Australian taxpayer. Let's treat them exactly the same as we treat anyone else who applies for legal aid in this country. I will be moving that amendment to the bill.
There is a lot more to be said on this. As I have said, let's look at this fairly. I take into account what Senator Leyonhjelm said about this: we should have a sunset clause. The days and times are changing rapidly. Maybe we need to look at immigration—who we actually bring into Australia—as I have always said. Let's address the problem before it gets out of hand. I hear time and time again that our authorities are stretched to the limit. I hear that there is a probable attack and a possible attack. That is what we are told. We need to make sure that our country is safe, and if these people, even as young as 14, want to go out there and try to commit a crime against us and this nation, they will certainly receive the wrath of the law as far as I am concerned. Thank you.
I thank honourable senators for their contributions. I thank in particular the Australian Labor Party for their support for this measure and Senator Hanson for One Nation's support for the measure. Can I, by the way, clarify a matter that you just raised, Senator Hanson? The national terrorism alert level is 'probable' at the moment. It has been at that level or the equivalent level since September 2014. Last year we changed the nomenclature to make the expression of the alert level a little more clear. It used to be 'high', and 'high' was defined as 'a terrorism event was assessed to be likely'. Now at the same level the descriptor is not 'possible' but 'probable'.
I thank honourable Senators for their contributions to the debate and I will turn in a moment, as time permits, to responding to certain observations that have fallen from some crossbench senators. The bill provides significant measures to address the ongoing terrorism threat in Australia. The measures were developed in response to lessons learned from recent counterterrorism operations, and the bill is informed by a number of independent and parliamentary committee reports, including the report of the Parliamentary Joint Committee on Intelligence and Security on the 2015 bill of the same name, which lapsed when the parliament was dissolved earlier in the year. To give even fuller effect to the recommendations of the PJCIS, I will be moving a government amendment to the bill regarding legal representation for young persons in control order proceedings.
The government has worked closely with the states and territories on these reforms and will continue to do so as part of our comprehensive reform agenda to strengthen Australia's national security and counterterrorism legislation. Importantly, the bill includes measures that will modernise the control order regime, including reducing the minimum age for which a control order can be imposed on a person from 16 years to 14 years or older but introducing a new safeguards regime for minors; creating targeted regimes to facilitate the monitoring of individuals subject to control orders through physical search, telecommunications interception and surveillance device powers; and providing greater protection to sensitive information in control order proceedings.
The bill will also criminalise the advocacy of genocide, which, as I said in the second reading speech, is the incitement to murder an entire population, not an exercise in free speech. These are important measures in preventing terrorism and the spread of extremism in Australia. They are supported by a robust countering violent extremism—or CVE—program which focuses on prevention as our first defence against terrorism. Our program works with communities to address the underlying factors that, unfortunately, make violent extremism appealing to some individuals, particularly young people. It includes adopting new methods to counter the spread and allure of extremist propaganda online and makes sure that our families, communities and institutions like schools and workplaces have the knowledge and tools to respond to radicalisation.
Changing an individual's circumstances, behaviour and feelings is hard. While there is evidence that these programs are working, we know that there will be cases where they will not succeed, and we are in the relatively early days of developing the body of knowledge and understanding of what works in CVE and what works less well. That is why we need to ensure that our law enforcement and intelligence agencies have the powers that they need to respond when a situation escalates.
The bill also reflects the government's decision to implement in full all of the Independent National Security Legislation Monitor's recommendations in his report on section 35P of the ASIO Act. The government understands the importance of maintaining public awareness of and confidence in the activities of our security agencies. This and other measures in this bill provide further demonstration of the government's commitment to ensuring that we are achieving the right balance between the needs of national security and the great principles of the rule of law in a free society.
In the time available to me before the adjournment, let me briefly respond to some of the points that I understand have been made from the crossbench. It has been said by Senator McKim that the Greens will oppose the bill because it restricts civil liberties. There is always a trade-off between appropriate protection of the community and the protection of civil liberties. This bill, which is hedged by even more extensive safeguards than we have known before, achieves that balance. 'Civil liberties' cannot be used intelligently as a mantra or a slogan. You have to identify, in the case of each particular measure, why the trade-off is wrong. It is my job both to protect civil liberties and to protect national security, and every day of my life I grapple with the task of ensuring we get the balance right. In performing that task, I am advised not merely by those who advise the government but by the parliament, particularly through its committees, like the PJCIS, the fruit of whose work this bill in large measure is.
Senator McKim, I am told that you said the fact that a 15-year-old attacked Curtis Cheng is no argument for lowering the age of control orders. That is an extraordinary proposition. There have been two lethal terrorist attacks on Australian soil since September 2014. One was by Man Haron Monis at Martin Place, and the other was on Curtis Cheng. One of the two attacks was committed by a 15-year-old. If you do not think that that demonstrates that people younger than the age of 15 are susceptible to radicalisation and the blandishments of those who would entice them down a self-destructive path of violence and, in the case of the late Mr Curtis Cheng, murder, I do not know where you learned your logic from, Senator McKim. One of the two lethal attacks was committed by a 15-year-old, and I can tell you, having in my role as the Attorney to review cases and issue warrants on a regular basis, that it is not at all uncommon—in fact, sadly it is very common—to see at-risk people below the age of 16. To meet your objection, Senator McKim, about the need to balance these measures with appropriate protections of civil liberties, we have introduced a whole new regime, which did not exist in the previous legislation, to protect minors who are the subject of control orders.
I agree with Senator Xenophon's observations that careful scrutiny of agencies and powers is essential. As Senator Xenophon knows, we have that. We have a very elaborate architecture of protection through the parliament; through statutory offices like the Independent National Security Legislation Monitor and the Inspector-General of Intelligence and Security; and through accountability measures within policing and national security agencies themselves. I had the benefit of meeting the Attorney General of Canada this afternoon, and we were discussing the ways in which our respective countries address this very problem. I can assure you, Senator, that Australia leads the world not merely in protecting our people but in protecting our liberties through the careful and thorough architecture of oversight mechanisms and accountability mechanisms which are built into the legislation.
Senator Leyonhjelm, I note your opposition to the changes. It reflects your principled libertarian stand, which I acknowledge and respect. But, nevertheless, might I gently chide you: when one has to deal with the real consequences and the real problem of keeping communities safe, a purist libertarian policy position will not always meet the occasion. It just will not. So, as I said to Senator McKim, what we have striven to do is to be as sparing as possible in invasions of civil liberties and only invade civil liberties to the extent absolutely necessary to protect our community. I look forward to the debate in the committee stage of the bill. I commend the bill to the Senate.