George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendment to be moved to the bill. I move the government amendment on sheet ZA417:

(1) Schedule 2, page 10 (after line 14), after item 32, insert:

32A At the end of section 104.28 of the Criminal Code

  Add:

Young person ' s right to legal representation

(4) If an issuing court is satisfied, in proceedings relating to a control order, that:

  (a) the person to whom the control order relates, or the person in relation to whom the control order is requested, is at least 14 but under 18; and

  (b) the person does not have a lawyer acting in relation to the proceedings;

the court must appoint a lawyer to act for the person in relation to the proceedings.

(5) However, the issuing court is not required to appoint a lawyer if:

  (a) the proceedings are ex parte proceedings relating to a request for an interim control order; or

  (b) the person refused a lawyer previously appointed under subsection (4) during proceedings relating to:

     (i) the control order; or

     (ii) if the control order is a confirmed control order—the interim control order that was confirmed.

(6) The regulations may provide in relation to the appointing of lawyers under subsection (4) (including in relation to lawyers appointed under that subsection).

The government amendment on sheet ZA417 implements recommendation 2 of the Parliamentary Joint Committee on Intelligence and Security, relating to the legal representation of young persons in control order proceedings. Recommendation 2 of the PJCIS advisory report recommended that the bill be amended to expressly provide that a young person has the right to legal representation in control order proceedings. This was the 'enhanced protections' that I referred to in my remarks in closing the second reading debate last night. The amendment will require that the issuing court must appoint a lawyer to act for a person in relation to a control order proceeding if the court is satisfied that the person to whom the control order relates or the person in relation to whom the control order is requested is at least 14 years of age but under 18 and the person does not have a lawyer acting in relation to the control order proceedings. The court will not be required to appoint a lawyer where the proceedings are ex parte, relating to a request for an interim control order or the young person refused a lawyer previously appointed by the court during proceedings relating to a control order or, if the control order is a confirmed control order, the interim control order that was the subject of the confirmation proceedings.

The amendment will also include a regulation-making power to address any administrative matters relevant to the appointment of lawyers for young persons. The government will move swiftly to make these regulations in consultation with the states and territories. The amendment will further strengthen the safeguards for young persons who are subject to a control order and provides an additional mechanism for implementing PJCIS recommendation 2.

As I said to you last night, Senator McKim, at the moment in relation to 16- and 17-year-old people who are subject to the existing control order regime there is no special provision to guarantee the appointment of a lawyer. Now, as a result of these amendments, for people between the age range of 14 and 17 years there will be. So this is yet a further enhancement of the protections that does not exist already.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

The Labor Party made it very clear in the second reading debate on these matters that our approach on this question is to ensure that we are able to secure an appropriate balance between ensuring the security of our people and national institutions and the questions of civil liberties. This is a commitment that we make to ensure that Australians are safe from any threat of terrorism, and that commitment extends to ensuring that we not only have the resources to fight acts of terrorism but insist that the government also ensure the protection of fundamental human rights in this matter. However, this support, bipartisan in many respects, does not go on the basis of a blank cheque for whatever the government proposes.

We have argued that, where appropriate, the Labor Party will seek improvements to legislation in line with our values, with our highest priority being to ensure that we are able to protect the safety of our community. In that manner, we have argued the case on this question and are pleased to acknowledge that the government have picked up the fundamental points we have raised with regard to the very important principle of legal representation and that this amendment is designed to ensure that any young person subject to a control order has the right to be provided with a lawyer to advise and represent them. We regard that as a fundamental protection and, accordingly, we will be supporting the government's amendment as circulated on sheet ZA417.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Before we proceed to consideration of individual amendments, I have a number of matters I would like to raise with the—

The CHAIR: Senator Leyonhjelm, we are proceeding with the amendments.

Yes, I know we are, but we are in committee stage and questioning the minister is part of the process of the committee stage. That is what I am proposing to do.

The CHAIR: Just so we are clear, the question before the chair right now is the government's first amendment.

All right. I am foreshadowing the fact that, once we have dealt with that, I want to ask the minister some questions.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I just indicate, as I believe I did in my second reading contribution, that the Greens are very happy to support this amendment because we do think that it enhances the safeguards for children who would come within the provisions of this legislation by providing them with a right to legal assistance, although this improvement is certainly by no means enough to change our view that this is bad legislation. I also foreshadow, as Senator Leyonhjelm has, that we will have some further questions for the Attorney on the way that this bill is to be interpreted, once we have dealt with the amendments before the house.

The CHAIR: I alert people to the fact that I have a running sheet before me that indicates that Senator Hanson has an amendment, but she is not here. So I will put the question. The question is that the amendment on sheet ZA417 moved by Senator Brandis be agreed to.

Question agreed to.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

My understanding is, in procedural terms, that general questions are dealt with prior to individual amendments, so I was acting on that assumption. I have some questions I would like to ask the Attorney. Minister, yesterday you suggested I am a purest libertarian in opposing this bill. I would like you to now demonstrate that you are not being a purest authoritarian in putting forward the bill and others that have preceded it. I invite you to give the chamber an assurance regarding all the changes to national security legislation sought by national security agencies and your department in the lead-up to the introduction of this bill. I am not inviting you to divulge the nature of any of those sought after changes. Instead, I would like you to give an assurance that the government rejected at least one of the substantive changes sought by national security agencies and your department. Can you give that assurance?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

In relation to this particular bill, I would have to check, but I can certainly give you an assurance, because I recollect the many conversations that I have had over the more than three years now since I became the Attorney-General, that on many occasions there have been proposals which have been raised and discussed and rejected by me. I was not kidding, Senator Leyonhjelm, last night when I said that I take very seriously the obligation to find the right balance between appropriate extension of the laws to the protection of community safety on the one hand and laws that impinge upon established liberties on the other. So, in relation to this particular bill, I do not recall that there were. There may have been—I will check. But, in relation to the various tranches of counterterrorism legislation starting in the latter half of 2014, I can absolutely give you that assurance, yes.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Thank you, Attorney. I will move onto another point. The current law relating to preventive detention refers to a terrorist act that is imminent, and the bill changes the law relating to preventive detention in various ways, including by the removal of the reference to 'is imminent'. Do you accept that the bill will allow a preventive detention order to be made in instances where no terrorist act has occurred and no terrorist act is imminent?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I wonder if you would be good enough to direct me to the clause of the bill to which you are referring.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

It's an old trick, that one! That's an old one! It's an old trick to ask for the particular clause—that gives you time to think.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Well, I am being asked a question about a clause, so I would appreciate being directed to it—that is all. Are you referring to the amendment made by schedule 5 on page 14 of the bill?

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Yes, Minister, I think it is schedule 5. The notes that I have at hand are a bit broad, but I think you are right—schedule 5.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Yes, I think you are referring to schedule 5. Schedule 5 amends, in two respects, the preventative detention order provisions. First of all, it repeals paragraph (a) of section 105.1 of the Criminal Code by removing from the code the words 'prevent an imminent terrorist act occurring' and substituting the words 'prevent a terrorist act that is capable of being carried out, and could occur, within the next 14 days from occurring'. There is an amendment to the same effect, or a complementary amendment, of subsection 5 of section 105.4 of the Criminal Code. The purpose of the amendment is because of the vagueness of the meaning of the term 'imminent', so some clearer definition of the circumstances in which preventative detention orders may be sought is offered. Rather than saying it has to be imminent, which is a term that is obviously not delimited by any particular length of time and might mean different things to different people, we are putting a maximum period of time on it—that is, 14 days. It could be, of course, a lot sooner.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Thank you, Attorney. Nonetheless, I am inviting you to answer my question, which is: do you accept that changing the wording from 'is imminent' to 'could occur', notwithstanding the fact that 14 days remains as the time period, will allow preventive detention orders to be made in instances where no terrorist act has occurred and no terrorist act is imminent?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

With respect, Senator, you are wrong about the first part, because this does not operate after a terrorist act has occurred—in fact, the whole point is to anticipate and interdict a terrorist act that may be about to occur. So, with respect, you are quite wrong about the first of those two observations.

In relation to the second, I really cannot do better than my answer to your earlier question. 'Imminent' will mean different things to different people. This amendment imposes an outer limit on what might be thought to be imminent. It may be, of course, that the anticipated or feared terrorist act is feared to take effect a lot sooner than that, but one of the operational difficulties is that one can envisage a set of circumstances in which the authorities form a view to the appropriate level of satisfaction required by division 105 of the Criminal Code that a terrorist act is about to occur, and they want to use the control order powers. But they cannot say that it might be about to occur in an hour's time or in 24 hours time, or even within the next week. They are merely satisfied to the appropriate threshold of persuasion that a terrorist act is about to occur—and the problem with the word 'imminent' is that, as you rightly say, Senator, it does presume that the act is about to happen.

This amendment will deal with the circumstances in which the relevant authorities are satisfied to an appropriate level of satisfaction that a terrorist event is about to happen in the sense that it could happen in an instant but may not happen for a period of days—they just do not know. Community safety, I would respectfully suggest to you, demands that in that state of uncertainty the power should not merely be exercisable on the basis that the terrorist act is going to occur in the next hour or so if the investigatory authorities are not sure. But, equally, the whole point of a preventative detention order is to act urgently in urgent circumstances. So there has to be an outer limit put on the period during which, or as to which, the relevant authorities anticipate the event may occur, and the period of time that has been chosen is 14 days.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Attorney, with great respect, the current law gives a time limit of 14 days. That is already in the law. I am not disagreeing with the essential point you are making. The point I am trying to make is that we are contemplating, via the bill, removing the word 'imminent' and replacing it with 'could occur'. While the 14 days will remain and so, by one interpretation of 'imminent', imminent might be within the next 14 days, I suggest that removing the word 'imminent' and replacing it with 'could occur' is a substantive change. I am inviting you to consider whether my assessment is something you agree with.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I do not, Senator, for a different reason. This is not about the threshold test. The threshold test remains unchanged. This is, as it were, the jurisdictional requirement. Preventative detention orders under the pre-existing division 105 of the Criminal Code can only be sought where there is an imminent terrorist act, but they can also only be sought if the person applying for the preventative detention order is satisfied to the appropriate level of satisfaction that a preventative detention order is reasonably necessary to prevent a terrorist act from occurring and would substantially assist in the prevention of a terrorist act. So we are talking about two different things. You are talking about the standard of satisfaction that has to be met before a preventative detention order issues, and that does not change as a result of this amendment. What we are talking about here, though, is the jurisdictional precondition of seeking a preventative detention order, and that is that the terrorist act, previously described as imminent, is now one that is capable of occurring and could occur within the next 14 days.

In other words, there is a double test here. It cannot be just a theoretical possibility, which I think is maybe what you are getting at. It cannot just be that there is a theoretical possibility that a terrorist act is capable of occurring and could occur within the next 14 days—of course there is. The national terrorism alert level is at 'probable' and has been for more than two years, so today it is the case in Australia that a terrorist act is capable of being carried out and could occur within the next 14 days. That is not the point. The point is you do not get a preventative detention order unless you are reasonably satisfied that it is reasonably necessary to obtain one and that obtaining one would substantially assist in preventing that act. In order to establish those thresholds of satisfaction, you would need to put facts before the relevant issuing authority.

I am sorry if I may be repeating myself, but what we are speaking of now is not the threshold but merely changing or giving more definition to the jurisdictional condition that is imminence.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Attorney, I would have to question your assumption or your assertion there. We are talking about detaining people without trial. It is a very, very serious thing. The circumstance under which people could be detained without trial under preventive detention orders at the moment is that a terrorist act is considered to be imminent, and there is a 14-day period in the current law. What we are talking about here is amending the law so that, instead of it being imminent, it is reasonably likely and could occur, and the same 14 days are applied. I am not suggesting that under all circumstances that might not be appropriate, but it seems to me that this is a substantive change—that is, we are lowering the bar from 'is imminent', which is rather definite, to 'could occur'. Wouldn't you agree that is fairly substantive?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I understand the point you are making, but let me respond by pointing out, as I said before, that this is not just a theoretical possibility. What those seeking the preventative detention order have to show the court is that there is a specific set of facts and circumstances of which they are aware. So this is not just a theoretical possibility of a terrorist act occurring; it is particular facts and circumstances which justify the issuance of the preventative detention order.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I am going to move on, but I will just make the point before I do that the explanatory memorandum refers to this particular change as 'clarification of the law'. Quite frankly, I regard that as misleading. I think this is a substantive change in the law and the explanatory memorandum ought to say so. Nonetheless, I will move on.

You have previously referred to the right to be a bigot, and I entirely agree with you. People have every right to be a bigot. But do people also have the right to have genocidal thoughts? This law seeks to address that. Let me give you an example of genocidal thoughts. Shakespeare once said, 'First, kill all the lawyers.' Isn't that a genocidal thought?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Leyonhjelm, I do not want to be flippant about such a grave topic, but I think under the genocide convention that lawyers would not be regarded as a population!

Might I take the opportunity to address the rationale for this crime. The existing law, as amended a year or so ago, introduced a new offence of advocacy of terrorism. My advice, by the way, from the Australian Federal Police is that that has been very effective in discouraging that kind of behaviour in certain communities. Terrorism, as you know, Senator, because you are very well schooled in this area of the Criminal Code, has a certain definition, and it is conceivable that certain conduct which could constitute genocide may not be caught within the definition of the advocacy of terrorism.

You referred to remarks that I made a couple of years ago. Where I draw the line, and I think—I hope—where you draw the line, Senator Leyonhjelm, is between the expression of an opinion, however unattractive, and the advocacy of harmful conduct. I think once we get into the territory of the advocacy of harmful conduct that is no longer merely the expression of an opinion. It is an encouragement or an incitement to do harm to a specified or unspecified person or group of persons. I think that should always be against the law.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Thank you, Attorney. I certainly think I might disagree with you about lawyers, but anyway we will not debate that one.

What evidence do you have to suggest that playing a computer game or watching a video makes you more likely to act out in real life those things that you have played or watched?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I am sorry, Senator Leyonhjelm, again you are going to have to direct me to that part of the bill or EM of which you speak. I assume this is an intended reference to something in the EM—is that right? Can you direct me to the paragraph, please?

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Bear with me one minute.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

While you are looking for the specific paragraph, can I perhaps respond to your question in the broad. There is certainly a large body now of evidence that people, particularly young people, may be encouraged or incited to terrorist crime by online radicalisation. There are many examples of that in Australia and overseas. In fact, this is a relatively new field of scholarship, at least in its application to terrorism. But there is now quite a large body of scholarly work about which there are plenty of journal articles, for example, and monographs available which do point to the threat of online radicalisation through computers and among the various forms of online advocacy. It is not unknown for violent computer games, for example, to be one of them.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Attorney, the schedule I am referring to is schedule 13. It relates to the Classification (Publications, Films and Computer Games) Act—it is an amendment to that. Just for the sake of clarity, allow me to restate my reservations on the evidence that playing a computer game or watching a video makes you more likely to act out in real life those things you played or watched. And can I add to that that there is actual evidence in relation to pornography and sexual behaviour that there is no link between those two. That is what the evidence would indicate. So I am wondering: in the case of terrorist acts, what evidence do you have that suggests that this is different from that pornographic and sexual behaviour matter?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

What I may do is simply read to you the notes prepared by those specialists in my department who are very familiar with this particular area. The classification act provides that a publication, film or computer game that advocates the doing of a terrorist act must be classified as refused classification, or RC. When this provision was inserted into the classification act the definition of 'advocates' in paragraph 102.1(1A)(a) of the Criminal Code was adopted. However, when the definition of 'advocates' was amended by the foreign fighters act in 2014 the definition in the classification act was not updated. Accordingly, it is still limited to directly or indirectly counselling or urging the doing of a terrorist act.

This amendment brings the meaning of 'advocates' in the classification act into line with the definition in the Criminal Code by also including directly or indirectly promoting or encouraging the doing of a terrorist act. The EM explains that while the terms 'promotes' and 'encourages' are not defined, their ordinary meaning should be used. While there may be some overlap with the terms 'counsels or urges' the doing of a terrorist act, the inclusion of additional terms is designed to ensure coverage of a broader range of conduct that may be considered as advocating the doing of a terrorist act.

That is a genesis, or rationale, of the amendment. The point I would make to you, Senator, is 'advocacy' can take many forms, just as online recruitment and radicalisation can take many forms. There are instances of which I am aware—not directly aware, of course, but about which I have read—of computer games being a device or a medium used by inciters or even recruiters to try and engage and then cultivate people for the purposes of radicalising them.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

That is the end of my general questions. I will cede the call to Senator Hanson if she wants to move her amendments, or to other people who have general questions.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I move the amendment on sheet 7965:

(1) Amendment (1), item 32A, at the end of subsection (5), add:

  ; or (c) there is evidence that at least one parent or guardian of the person has means to appoint a lawyer to act for the person.

The amendment proposed by the government is designed to give access to court-appointed legal aid to anyone aged between 14 and 17 years who is charged where they do not already have legal assistance. The view of Pauline Hanson's One Nation party is that this should only apply after their parents or guardians have been means tested, satisfying the courts that they do not have the means to provide the assistance themselves to their own children.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Thank you very much, Senator Hanson, for bringing that issue up. Of course you are right. As a general principle of social justice, the provision of legal assistance should be concentrated on those who do not have the means to pay for it themselves and not on those who do. So from a philosophical point of view, I agree with you and, if I may say so, that is the way in which we try to weight our entire legal assistance sector. In this particular case, though, we are dealing with a very unusual procedure—an application for a control order—and often a procedure that takes place in very urgent circumstances in which the practicalities of establishing whether or not the means of the parents of a person who is the subject of such an application would make it, I think, difficult if not impossible for the system to be workable.

I should also point out the context of this. There have been a very small number of control orders issued since these provisions came into operation in 2004, and I am not immediately aware—and I may be wrong about this—of any one of them that have been issued in relation to a person under the age of 18. We want to make sure that our coverage extends to everyone who may conceivably be at risk. So the number of occasions on which this is ever likely to arise is very, very few. In those circumstances, I do not want to build a complexity into the system which depends upon urgency in any event which is very, very seldom likely to be availed of. That having been said, I will heed carefully what you have to say.

I do not think you were in the chamber when I moved the amendment to which this amendment of yours is addressed. I should make you aware that there is a regulation-making power and if on closer inspection—and I am happy to talk with you privately about this or get you a briefing from my department—and having had the benefit of a fuller discussion of the matter it seems that there does need to be the kind of provision that this amendment would propose then that could be dealt with by regulation rather than amendment to the bill itself. Having regard to those considerations, the government will not be supporting this amendment.

Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

Before I call other senators, I will just explain where we are at. This was originally circulated by Senator Hanson as an amendment to the government's amendment. That amendment has now been carried, so we are now dealing with it as an amendment to the bill as amended, if that clarifies it for senators.

Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

The opposition will not be supporting this amendment. We take the view that the rights of minors subject to control orders must be safeguarded and that is why we insisted that young people subject to control order proceedings had the right to be provided with a lawyer to advise them and to represent them. We have strongly recommended the bill be amended and the government have accepted that in terms of ensuring that persons have access to a lawyer. That, of course, is consistent with the report of the Parliamentary Joint Committee on Intelligence and Security.

It was only a short while ago that most people would have expressed the view that having terrorist laws attached to minors would not be necessary, but the events in recent times have demonstrated that and, I think, reflected a change in attitude. We are opposing this amendment, however, because we do not want to water down the safeguard that is provided and we have pushed so hard for. There are, as the Attorney has indicated, suggestions that it is only a very small number of young people that would be subject to the measures in this bill, and they are entitled to refuse legal representation if they choose to. But we do not want to see the control order regime complicated by means that would take up significant amounts of the court's time. As a consequence, we think that the measures of the bill as amended are appropriate and we will not be supporting this amendment.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I said a moment ago to you, Senator Hanson, that there have been very few control orders issued since this scheme came into operation in 2004. I am advised that there have been six. Some states also have control order regimes. So these are control orders issued under Commonwealth law. In the last 12 years there have been only six, and I do not think any of them have been in relation to minors. We spend a lot of time in this chamber debating control orders and preventative detention orders, and we should because these are unusual orders, but I would not want any senator to have the impression that this is a routine procedure. It is far from it, and the fact that only six have been issued in 12 years tells you what an unusual procedure it is.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate that we will not be supporting Senator Hanson's amendment in relation to this. I understand the rationale for it. I accept the arguments of both the government and the opposition, but I think there is also a practical difficulty. There may be instances where a minor subject to this particular section has no relationship with their parents at all, where they have had their minds poisoned, have been radicalised, have absolutely nothing to do with their parents and are in the clutches of extremists—they have been, effectively, brainwashed, and their parents have absolutely no control over them. I do not think in those circumstances it would be reasonable or practical to impose what is suggested in this section. I understand Senator Hanson's concerns in respect of taxpayer funds and the like, but I think that in those circumstances this amendment would not be practical.

Whilst we are in the committee stage—I did not get an opportunity earlier—this in a sense segues into a question I would like to ask. I am happy for the Attorney to perhaps answer it in the course of this debate—by the end of the debate, if he could give me that undertaking. It is not a trick question and it relates to the issue of counter-radicalisation measures. When Senator Fierravanti-Wells was the Parliamentary Secretary to the Attorney-General and Assistant Minister for Multicultural Affairs, she did a lot of work—very commendable work—dealing with counter-radicalisation measures. Obviously, in this case I would like to hear from the government given that there is going to be a much stricter regime dealing with these matters. What efforts are going to be made and what efforts will continue to be made to deal with counter-radicalisation measures? What resources are going into it to extend the very commendable work the government has done on this and the very commendable work that Senator Fierravanti-Wells did? I guess it is a case where prevention is better than the cure; I think prevention is better than a preventative detention order. That is the sort of thing for which I would appreciate the Attorney in the course of the committee stage outlining what is being done, because I see the two going in concert with each other. There are these measures for community safety but there is also ensuring that the poison of these extremists does not find its way into the minds of young people.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Yes, Senator Xenophon, I am in a position to acquaint you with what Australia is doing in that space. Can I perhaps respectfully suggest we deal with Senator Hanson's amendment first—and I think Senator Leyonhjelm has an amendment—and then we could perhaps return to it, because I would very much welcome the opportunity, in fact, to acquaint the chamber with what Australia is doing in relation to CVE.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will not be supporting this amendment and, at the risk of damaging my political reputation and potentially that of the Attorney, I find myself in furious agreement with his reasons for the government also not supporting this amendment. As a courtesy, I will allow this amendment to go through before asking other questions which have arisen in my mind as a result of one of the Attorney's answers, or contributions, in the debate to this amendment.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I understand Senator Brandis's comments about how quickly the matters need to be dealt with in the courts. I quite understand that. My question goes back to the fact that if a child between the ages of 14 and 17 is brought before the courts on a terrorism charge, then I believe that the parents have to take some responsibility. I understand what Senator Xenophon said—that the parents may not have any control over the child—and I do believe that that is the case in a lot of cases in many areas. But, then again, someone has to start taking responsibility, and in many other areas parents are responsible for their children, so why not in this area?

I raise the issue too because, under the legal aid that you are able to apply for in Australia, it states that you do not have to be an Australian citizen to get legal aid in Australia—that is one point. We have seen legal aid funding decline in Australia from approximately just over $11 per person to just over $7 per person. We have many Australians in Australia who cannot get legal aid, especially in the family law courts. Because we do not have that funding, they do not have that access to legal aid, so they are self-represented and the courts are tied up with dealing with these people who do not know how to represent themselves on the floor of a court. In many cases, from the decisions that are made or through pure frustration, we see suicides at the rate of between four to five a day in Australia.

Under 'applying for legal aid' it states that, if a person is being supported by another, that person's support, whether it be a partner, comes after a means-test for their legal aid. I will go back to the point Senator Brandis said. It is a matter of urgency by all means, but what is stopping the government or the department from pursuing cost recovery of the persons, whether they be a guardian or a parent? We have to start being responsible to the Australian people. You cannot have one side where Australians cannot get legal aid because they are means-tested. We have lives at stake here, and we have to be responsible in the courts. Everyone has to be responsible for their own actions, and we are talking about terrorism. These are people who are going out there with the intention of doing harm to Australians, and I do not want to see my tax dollars wasted on these people. Bring them to trial, throw them in prison and get rid of them out of the country if that be the case. But, the whole fact is, we actually have to start showing some equality on both sides of the fence, whether it be for Australians or anyone in our system.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Hanson, I wish there was, as I have said many times, more money in the legal aid system. In fact, I wish there was more money for a lot of useful things, but this government were not responsible for the state of the budget we inherited in 2013, and we are still trying to repair it.

Senator Hanson, as a general proposition, I agree with your observations about the legal aid system and many of the things that you say. Can I remind you that this particular provision only applies to a minor in a control order proceeding who does not have a lawyer. So let it be assumed that there was a young man or woman who had been radicalised online and was imminently or, to use the new expression, there was a 'relevant level of concern' that some time within the next fortnight they were going to commit a terrorist event and that the best way to deal with that was to seek a control order against them.

In the court proceedings, if that young person came from a wealthy family, I dare say, and they were in touch with their parents, then no doubt, in all likelihood, the parents would pay for a lawyer. So the issue would not arise. If they were alienated from their parents because, to use Senator Xenophon's colourful but accurate phrase, their 'mind had been poisoned', then the policy of ensuring that a minor is represented by a lawyer in proceedings as unusual as this would still need to be met by the provision of a lawyer because the parents would not be providing a lawyer. If they came from a poor family then I think you would agree with me that they ought to be provided with a lawyer by the taxpayer.

So the set of circumstances that you hypothesise, Senator Hanson, are very unlikely ever to occur. But, as I said to you before, we will have a talk about it, if you are happy to do that with my officials, and it may well be that the mischief you point to could be cured by regulation.

The TEMPORARY CHAIR: The question is that the motion moved by Senator Hanson be agreed to.

Question negatived.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I have some questions, Attorney, around schedule 2—the way control orders are applied for and operate; some of those fall within schedule 3. Before I ask those, a question came to mind during one of your responses to Senator Hanson, or perhaps it was Senator Xenophon. I think you said there have been six control orders granted by the courts since 2004. How many applications for control orders were made and not granted by the courts, if any?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

None. That, Senator McKim, I hope you would agree, reflects, because of the highly unusual nature of these orders, the high level of conservatism and caution that the authorities apply in deciding to seek them and they will only go to the court in circumstances where it is a very clear case.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I do agree with that, Attorney, and I am pleased that there have been no cases where a control order has been applied for and denied by the courts. I have another series of questions. Firstly, this relates to schedule 2. I observe that the maximum time that a child may be subject to a control order is three months, but of course there is the opportunity for further control orders to be applied for. Could you confirm that, in assessing any application for further control orders, the courts will have to give consideration to exactly the same matters that they would if the application had been a new application for a control order on a particular person?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Yes. You are speaking here of a control order, not an interim control order, which has expired and which the authorities wish to have renewed. The same tests apply.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Attorney, the explanatory memorandum states that a child will not be separated from family and will be able to attend school. However, I was unable to find anything in the legislation that would prevent an order that would result in a child not being able to attend school or would require a child to be separated from their family. What assurances can you give that a control order would not prevent a child from attending school and not cause them to be separated from their family?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

That is not in the bill itself, but I am told that that principle will be one of the principles observed by those administering the act. Can I also remind you, Senator, that that is to be set out against the background of the existing requirement in the Criminal Code that the terms of a control order are only to be issued to the extent to which they are necessary to satisfy the security matter—these are not the statutory words; this is my paraphrase of them—but are to be as non-invasive as possible, depending upon the circumstances of the case. So, in relation to a minor, it is the position of the police that enabling a minor to continue with his or her school education is one thing that would be required to be satisfied in seeking the terms of the control order. But you are right to say, I am advised, that it is not in the bill.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thank you for confirming that it is not in the legislation, and that of course raises the obvious question as to why you would not put this matter in legislation. If in fact, as the EM states, a child will not be separated from family and will be able to attend school, why was the decision made not to insert those protections around those matters into the legislation?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Perhaps chastened by unrelated recent events, I am trying to be as literally accurate as possible here. The legislation does require the court to have regard to the best interests of the child. There are four nominated and one more general criteria set out that determine the best interests of the child. One of those criteria, the fourth, is the right of the child to receive an education. In fact, it is the right of a child to receive an education and to practice his or her religion. So that is a matter that must be taken into account, and that is in the bill and will be in the act. But you asked me about the right to attend school, so I hope I am not being pedantic; I am just trying to be as literally accurate as possible.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thank you, Attorney—

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Sorry to interrupt you, Senator McKim, but that is to be found in what will now be 104.4(2A)(d) of the Criminal Code.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thank you for that additional clarification, Attorney. I think I am right in saying that the matters that a court must take into account, in the context of this discussion, do include the best interests of the child. That, in fact, is a primary consideration, but not the paramount consideration. The paramount consideration is the object of the division of the bill in which these matters fall. Attorney, you have placed on the record your intent here, which is that a control order not prevent a child from attending school and not result in a child being separated from his or her family. Should this bill become law, would there be anything that would prevent a court from issuing a control order which would result in a child not being able to attend school or being separated from their family?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Before coming directly to that question, might I say that your construction of the way this provision—the best interests of the child provision—would work in relation to the objects clause in section 104.1 is wrong. As a matter of statutory construction an objects clause will have regard to by a court to understand the broad objectives of the statute, but it is a principle that the particular qualifies the general. You are right to say that the objects clause does not include a reference to the best interests of the child, but where there is a specific and imperative requirement that the best interests of the child be considered, then they must be considered, notwithstanding what may be said in more general language in the objects clause. Proposed section 104.4(2A) is in imperative terms. It says:

In determining what is in the best interests of a person for the purposes of paragraph (2)(b), the court must take into account the following—

factors. It is not a discretion; it is an obligation. The reference to (2)(b) requires a primary consideration to be the best interests of the person. It is a little inapt to describe a 17-year-old as a child, but the person 'between the ages of 14 to 17 years' is a primary consideration to which the court must have regard.

Coming to your specific question, there is no actual prohibition on the court making a control order which might have the consequence that a particular person in the age range of 14 to 17 is required not to attend school, but the court must turn its mind to that matter in its consideration of where the best interests of the person lie. Let me give you a very practical example. Let us say there were to be a case where a particular school itself was the source of the radicalisation because there existed, in that particular school, a hate preacher or proselytiser or a recruiter, and it was in the best interests of the child, or the young person—the person in secondary school as it would be—to be taken away from that particular school. That might be in their best interests. There is not a specific statutory prohibition of the kind that you specify, but I think I have explained the way in which the scheme of the bill deals with the issue of concern to you.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thank you for confirming that, in fact, there will be nothing in legislation that prevents a control order from being issued that would result in a child not being able to attend school, or result in a child being separated from their family. At the risk of peeling off the bandaid, perhaps I can just offer gratuitous advice, in terms of explanatory memoranda, that care be taken to ensure that a memorandum does accurately reflect the legislation. To be frank, I do not think the legislation can sustain the claim in the explanatory memorandum that a child will not be separated from family and will be able to attend school, which is in fact what the EM states.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

You have raised the issue of relationship with family. We have largely been talking about education. I should direct your attention to what, in the amended act, would be 104.4(2A)(c). It requires that the court must take into account the 'best interests of the person', and also take into account:

… the benefit to the person of having a meaningful relationship with his or her family and friends …

Once again, that is something that is not a matter of discretion for the court; it must direct its mind to that issue. But you are right to say there is no prohibition against a control order severing that relationship. Let us say it was an uncle who was the source of the radicalisation, or the inspiration to violence; it may be entirely appropriate and, indeed, necessary for a control order to have that effect.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank you for that further clarification, Attorney, but I will allow my previous comment around explanatory memoranda to stand. I want to draw your attention now to that part of schedule 3 which relates to tracking devices. This goes to the proposed new insertion after section 104.5(3) of the Criminal Code—that is, the proposed new section (3A). And I will go into (c) here—if a person becomes aware that the tracking device or any equipment necessary for the operation of the tracking device is not in good working order, there is a requirement that an AFP member be notified as soon as is practicable but no later than four hours.

I am very happy to state here that I am not an expert in the operation of tracking devices. But on what basis could a person become aware that a tracking device was not in good order? Presumably, people who have a tracking device attached to them as a result of a court order would also not be experts in the operation of tracking devices. Will people be given any assistance in determining whether a tracking device is in good order? That is the first question. Secondly, you have said 'as soon as is practicable but no later than four hours'. So what information will a person be given about how to contact the AFP in the event that they do become aware that a tracking device is not in good order? Finally, if the person reports to the AFP after the expiration of the four-hour period after they become aware that the tracking device is not in good order, would that be considered a breach of the order and therefore the possibility of five years imprisonment would apply?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

First of all, Senator, you have omitted the most important words. The requirement is that they notify an AFP member as soon as practicable but no later than four hours 'after becoming so aware'. So the relevant four-hour period does not commence to run from the time at which the tracking device is not in good working order but from the time after which the person becomes aware that the tracking device is not in good working order—and that is a very important difference.

The question you have asked is mostly a technical question but the policy that underlies this is to encourage a proactive relationship between the person obliged to wear the tracking device and the AFP. The idea is that the person who is the subject of the control order requiring the wearing of the tracking device is encouraged to maintain regular and frequent communication with the AFP, and the arrangements that will be made and will be the subject of the terms of the control order would specify that. In other words, the person who has to wear the tracking device is not merely a passive participant here; they are required to ensure that they stay in touch and cooperate fully with the scheme. If they become aware that the tracking advice is not working, howsoever, then the obligation to make the police aware of that matter applies and they have four hours to do so.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thanks, Attorney; and I do accept your response in terms of your bringing to my attention the wording 'after becoming so aware'. That deals with part of the concern that I raised. But I want to ask you why the words 'but no later than four hours' have been included here. In other parts of this legislation there are requirements on the AFP to do certain things as soon as is practicable—and I can give you some examples if you like—but they do not insert a final limit on the time frame within which the AFP needs to do something. But when it comes to placing a burden on the person to whom a control order applies, they seem to have a higher burden than the AFP does in other situations. The risk there is that if they do not report within four hours after they become aware that a tracking device is not in good order—that is, if they report it 4½ hours later—you have set a discrete time frame beyond which, presumably, they will be considered to be in breach of the control order and therefore subject to imprisonment for up to five years. So why have you chosen in this legislation to more onerously burden those to whom a control order is applied compared to the obligations you have placed on the AFP to do certain things as soon as is practicable but with no finite time frame applied?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

This is a compliance obligation, Senator; it is an obligation to comply with the order of a court. And one of the golden rules of orders of courts that burden people is that they be as specific as possible about the obligations imposed by them—and that is done in fairness to the person the subject of the order of the court. We could have an argument about whether four hours is too short or long a period of time once you become aware that the device is not working. But the answer to your question is that it is like when a civil court issues an injunction: it is an absolute golden rule that if you are going to impose obligations on a person—particularly unusual obligations, such as here—there has to be the greatest clarity as to what their obligations are. It cannot be left to a matter of judgement, because then they would never know whether they were in breach or not. That is why, in orders imposing obligations upon a person, it is always bad practice to express it in vague terms like, 'as soon as reasonable' or, 'as soon as practicable'. The person has a right to be aware of the specific obligation they lie under.

You posit a case where, say, the person did not notify for 4½ hours—I think if we are getting down to that level of refinement, a little common sense is necessary here. There is a public document—available on the website of the Commonwealth Director of Public Prosecutions—called the Prosecution Policy of the Commonwealth and there are public guidelines published as to the principles that will guide the DPP before instituting a prosecution. In the case of a trivial breach of the kind you posit, of an order of this kind, it would be inconceivable that there would be a prosecution.

Derryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | Link to this | Hansard source

Mr Chairman, as probably the only person in this chamber who has ever worn an electronic tracking device—for five months—let me try to explain to you that the person probably would not know that their tracking device was not working. The tracking device is a gadget in your house, but it is the people who are monitoring the tracking device who will know that it is not working—because there is movement by you and the device is not showing where you are going or what you are doing. The Attorney-General is right when he talks about trivial matters—like four hours being four hours and 15 minutes—because I was escorted down to the justice department when I was back late from a one-hour, doctor-approved exercise time in my courtyard—walking around, like Rudolf Hess being the last prisoner in Spandau jail. I was 28 seconds late back, from my device, and was threatened with being incarcerated for being in breach. So when you are talking about it being four hours, or five hours or whatever it is, it will be the people at the other end, the officials, who will decide. It will be the AFP, if that is the case, who will say: 'This device is not working; we must do something about it.'

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am pausing to see whether the Attorney wishes to respond to that. He may or may not; that is obviously a matter for him.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

You have offered the minister a chance to respond and he has taken it. Minister.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I was not really asked a question. If I was going to respond, I would merely thank Senator Hinch for enlightening us!

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I am very happy to—and glad that I am able to—bow to Senator Hinch's experience in this matter, which is far more personal than mine. Attorney, I just wanted to follow this up with you by drawing your attention to proposed new subsection 104.20(3) of the Criminal Code, which says:

As soon as practicable after a confirmed control order in relation to a person is—

The TEMPORARY CHAIR: Sorry, Senator McKim; the minister would like you to repeat which page you are reading from, please.

I may be operating with the language of a parliament in which I have previously sat, but I would regard it as clause 20 of the bill, which seeks to repeal a subsection of the Criminal Code and to substitute another subsection. Can I just ask your guidance, Chair. Is that described as clause 20 in this chamber?

The TEMPORARY CHAIR: I am told it is known as item 20, Senator McKim. Thank you, Clerk.

Thank you, I appreciate your guidance, Chair.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Can I add to that, because I get very excited about punctuation and nomenclature. If it is in a schedule, it is an item and if it is in a bill, it is a clause. This is in a schedule to a bill.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I appreciate the guidance from you, Chair, and from the Attorney with regard to nomenclature. Attorney, I am drawing your attention to the fact that the proposed new subsection applies a burden on the AFP to do a certain thing—in this case, to:

(a)   serve the revocation or variation personally on the person; and

(b)   if the person is 14 to 17 years of age—take reasonable steps to serve a copy of the revocation or variation personally on at least one parent or guardian of the person.

I will just draw your attention to the fact that that subsection merely relies on the words, 'as soon as practicable', and actually does not apply, for example, a four-hour time frame. The point I was making earlier is that this legislation appears to burden, in some circumstances, a person to whom a control order applies to a greater degree than it burdens, in other circumstances, the AFP. It seems as if the AFP can simply do something as soon as is practicable, but when it applies a burden to a person to whom a control order applies then you have gone the next step and applied the deadline, if you like, of four hours. I am just making that observation and offering you the opportunity to provide an explanation to the Senate as to why those two different approaches have been applied.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I think I have partly answered your question, Senator. In relation to the obligation to notify of a device not becoming operative, or whatever the phrase is, that is because the person has a right to know how long they have got before they are in breach of the law. And as I said to you before, when an order of a court imposes a burden on a citizen, the citizen—as a matter of simple civil liberty, frankly—has a right to know precisely that which is required of him.

What the new subsection (3) of section 104.20 deals with is something completely different. That is not the terms of compliance with the order of a court; that is just a general obligation to serve process. It is completely commonplace for statutes to say something is to be done by a public authority as reasonably as practicable. That is not for the purposes of ensuring that the public authority is compliant with an order imposed upon it by a court, the breach of which may have penal consequences, but to ensure it facilitates something.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

A 14-year-old person who is, in this hypothetical circumstance, subject to a control order can be placed on what I would describe as a curfew: there can be time frames applied within which the person can or cannot do certain things. We are talking about a 14-year-old child. I think we can agree that 'child' is a reasonable definition of a 14-year-old. Have you applied your mind to a situation where the parents of that child makes that child do a thing that is in breach of the control order? You would have to say that a 14-year-old is not a fully developed adult. I think that our broad legal framework in this country would accept that statement. They are, at least in some cases, able to be heavily influenced by their parents. For example, a parent might insist that a child accompany them to a family event. The child is then caught in a very difficult situation, I think you would agree, where their parents are saying, 'You've got to come to Aunty Flo's wedding,' or whatever it happens to be, the child is in, quite frankly, an awful situation where they are going to have to either disobey their parents, with the ramifications that that can bring, or breach the order, with all the ramifications that that can bring.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I think we can dream up endless theoretical possibilities, Senator McKim. In relation to the hypothetical case you imagine, the answer would lie in the ordinary law of criminal responsibility. A 14-year-old person is within the age of criminal responsibility, and the criminal law provides defences. Those include duress, involuntariness and various other species of conduct for which the person accused of an offence is not responsible. I imagine if, in the case you cite, the child was in effect forced by its parents, if not under physical duress then at least under emotional duress, then the principles of criminal responsibility would govern the matter.

Once again, might I invite you to consider the prosecution policy of the Commonwealth. I do not want to be rude, but I know that some Greens—perhaps not you but some Greens—are a little paranoid about the police powers of the state. The police and prosecutorial authorities in particular apply a great deal of common sense to these cases, and it is inconceivable in the example that you give that that would result in any adverse consequences to the 14-year-old. Even if it did, as I say, on your facts I doubt that the 14-year-old would be criminally responsible anyway.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 7963 together:

(1) Clause 2, page 2 (table item 5), omit the table item, substitute:

(2) Page 142 (after line 30), at the end of the Bill, add:

Schedule 19—Sunset of amendments

1 Repeal of amendments

(1) The amendments made by Schedules 2, 3, 5, 8, 9, 10, 11, 13, 14 and 15 to the Counter-Terrorism Legislation Amendment Act (No.1) 2016 are repealed 10 years after the commencement of this Schedule.

(2) The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the repeal of the amendments made by the Schedules mentioned in subitem (1).

My amendments apply a 10-year sunset clause to the schedules of this bill that most restrict individual liberties. The fact that the sunset clause does not apply to all the schedules that restrict individual liberties indicates that my approach to these bills is not broadbrush, simplistic or, dare I say, purist. Indeed, I do not have a blanket opposition to control orders or to the provision that allows them to apply to 14-year-olds, so if the government restricted this bill just to that provision it would have my support. The Liberal Democrats are not extremists. We value a regionally superior defence force as well as our nation's alliances. We value strong borders and we support the licensing of firearm owners. We see the need for thorough enforcement of criminal law, including through surveillance of suspects. And we see the need for sentencing to be colourblind and to take into account the need to keep the community safe from reoffenders. We are clearly not the Greens.

We also see that liberal values need to be defended. My amendment applies a 10-year sunset clause to the bill's changes to preventative detention—schedule 5. This means that if this parliament decides that preventative detention should continue beyond its current sunsetting date of 7 September 2018 then this bill's changes to preventative detention will last until 2026, at which time the requirements for imposing preventative detention will revert to the law in force prior to today's bill. We will see a return to the requirement that a terrorist act is imminent, unless the parliament in a decade's time decides otherwise.

My amendment applies a 10-year sunset clause to the bill's changes to control orders—that is, schedules 2, 3, 8, 9, 10 and 15. This means that if this parliament decides that control orders should continue beyond their current sunsetting date of 7 September 2018 then the bill's changes to control orders will last until 2026, at which time control order powers will revert to those in force prior to today's bill. Control orders will be limited to people who are 16 or older unless the parliament, in a decade's time, decides otherwise.

My amendment also applies a 10-year sunset clause to the bill's offence for advocating genocide, schedule 11; the bill's ban on games and videos that promote terrorism, schedule 13; and the bill's changes that make it easier to get a delayed notification search warrant, schedule 14. This is a very mild amendment. Sunset clauses should be applied to this sort of legislation as a matter of course in a liberal democracy. The government justifies its bills by referring in its explanatory memorandum to a 'heightened threat environment'. The government should not legislate as if this heightened threat environment is permanent. I commend my amendments to the Senate.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Just quickly, Senator Leyonhjelm, the amendments in relation to preventative detention orders and control orders are amendments to existing sections in the Criminal Code, all of which sunset on 7 September 2018. So these amended sections, were the bill to be passed by the Senate, will sunset in any event on 7 September 2018. The effect of your amendment in relation to preventative detention orders and control orders would be, in fact, to extend the operation of those provisions by eight years longer than the existing sunset clause. So I think I you are wrong about that, with respect, Senator Leyonhjelm.

In relation to the offence of genocide and the other matters you mention, I simply do not agree with you and your general proposition that all legislation of this kind should be sunsetted. There are some, such as the control orders and the preventative detention orders, which for obvious reasons should be. But sometimes society has to make a choice as to whether we create, for example, a new category of criminal offence. I myself think that it should always be a crime to advocate the commission of genocide. I do not think that is something the need for which is a time limited, temporal or contingent need. I think as a matter of policy Australia should accept that it ought to be a crime to advocate genocide. So I do not think that section is suitable for sunsetting, either. The same observation applies to those other items of the bill that you have mentioned which are not caught by the existing sunset clause that sunsets on 7 September 2018.

I will keep my remarks short out of courtesy to Senator Wong, who has an appointment. I just wanted to wind up there with those observations.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I thank Senator Brandis. I just wanted to briefly put on record the opposition's position in relation to this amendment. We will not be supporting this amendment. I do agree with the principle that Senator Leyonhjelm articulated, which was the principle that extraordinary powers ought to have a range of safeguards, and one of those is a sunset clause. In fact, that is the policy position Labor has taken over some time in relation to a whole range of additional and at times extraordinary powers that we have given our security agencies for the reasons that have been ventilated in this debate and in others.

As the Attorney set out, there is an existing sunset clause in relation to the control orders and the preventative detention order regimes, which was in fact included in the original bill and extended by the foreign fighters legislation to the date the Attorney has outlined—7 September 2018. We supported the inclusion of that sunset clause. In other legislation, including, I think, a bill that may or may not be presented shortly, we have also sought a sunset clause for the very reasons you have outlined. But we think that in relation to this the existing sunset clause in relation to the control order and preventative detention order regimes is the appropriate one.

I also turn to the point the Attorney finished on, which is the insertion of the offence of genocide into the Criminal Code by this bill. That is not subject to a sunset clause. That is the case. But on this occasion we agree with Senator Brandis—I personally agree with him—that there are occasions where we make a determination that a matter ought to be the subject of criminal sanction. In relation to the genocide offence we agree with Senator Brandis's point. We do not believe that those provisions should be time limited nor contingent. For those reasons, the opposition will not be supporting the amendment.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I have had mixed advice on this, but I have decided that I will not call a division on it. Could I have a clarification on it? My understanding is that incitement to commit genocide is and has been an offence of long standing and that advocating genocide is now an additional offence that has been created here. I am just asking the Attorney: could he explain if that is the case? What is the difference?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Yes, that is the case, Senator Leyonhjelm. This is the difference: incitement is a very ancient offence under the criminal law and there are various kinds of incitement. The most familiar one is incitement to violence or incitement to public disorder. Over the years and, indeed, centuries, the courts have interpreted the crime of incitement to require a direct relationship between an overt act, which can be words—it is usually words—or gestures, and a particular identified form of disorder, whether it be violence, riot or whatever.

The reason the government has decided to extend the prohibition in relation to genocide beyond incitement to advocacy is that advocacy is a broader concept. It does not have to be tied as directly to a specific outcome. If, for example, a hate preacher were to say, 'The Jews should be driven into the sea and exterminated,' that would not necessarily constitute the offence of incitement of genocide if the language were, as it were, merely offensive rhetoric, but it would constitute advocacy of genocide. So it is a much broader test and, we think, justified because there are no circumstances whatsoever in the government's view where the advocacy of the slaughter of a population—of genocide—should be anything other than a crime.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Again, thank you to the Attorney for that explanation. I just want to go back to Senator Leyonhjelm's proposed amendment and make it clear that, as a matter of principle, the Greens would support sunset clauses on this type of legislation, which I think we can all agree does in fact compromise fundamental civil liberties in our country. We can have discussions about whether the balance is right or not, and we have made our views clear on that during the second reading debate on this bill.

However, as I said, we have an in-principle position that sunset clauses on legislation such as this are not only reasonable but in fact necessary. I will observe, of course, that a sunset clause does not bind or prevent a future parliament, or this current parliament, from revisiting matters if there is a desire to do that and either abolish or extend sunset clauses. However, we take on board the advice given to the house by the Attorney that some of the provisions of this legislation are in fact already sunsetted by virtue of previous legislation passed by the Senate, so that does offer us the comfort in this case that there are currently sunset provisions around certain parts of this legislation which seek to amend acts which already have sunset provisions within them. Nevertheless, I thank Senator Leyonhjelm for giving us the opportunity to speak about these matters.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I still have substantial concerns about this advocating genocide offence. I take the point that there would probably be situations where it ought to be criminalised, but the example given by the Attorney is unconvincing on two grounds. First of all, advocating driving all the Jews into the sea to exterminate them would be seemingly distasteful. The question, of course, is whether criminalising such speech is the right response to it.

But on the assumption that lawyers are humans and part of the population, I just repeat my suggestion that Shakespeare's statement, 'First kill all the lawyers,' is not substantively different from the example that the Attorney just gave. We have to be exceedingly careful that we stay on the side of civil liberties in this instance—and in all instances, for that matter—and that we are not encroaching on what is legitimate speech and, indeed, what is speech that can be best countered by more speech, rather than by repressing or suppressing it.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I understand the point you make, and you and I are, I think, reasonably close on this issue. But I would draw the line in a slightly different place from where you would.

I think that to do something that encourages the slaughter of a population does not fall within the protection of free speech. You know my views about free speech and section 18C, and the debate we have been having in this country for the last couple of years. I entirely agree with you that opinions, no matter how offensive they may be to some, should be able to be freely articulated. And if you believe in freedom of speech then you will defend the right of people to express opinions that you find objectionable or offensive. But to encourage a course of conduct that may result in violence to a person, or a group of people or a population is, it seems to me, not to express an opinion, however offensive, but to encourage a harmful act. And that is where I would draw the line. The statement that I instanced seems to me to be more than merely the expression in rhetorical language of an unpleasant opinion but the encouragement of an act.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Attorney has me started on freedom of speech. As the committee was happy to let the Attorney divert into that, I will just make the obvious point that freedom of speech is not an unfettered right, and I think the Attorney has accepted that with his qualifications around genocide.

But I do want to place on the record that those who are advocating softening or weakening section 18C of the Racial Discrimination Act in this country under the guise of being warriors to defend the right to freedom of speech are conspicuously silent on Australia's defamation laws and on the capacity of corporations to issue SLAPP suits, which are deliberately designed to stifle public debate in this country. They are conspicuously silent on section 42 of the Australian Border Force Act, which applies draconian restraints or constraints on freedom of speech on those who work in Australia's detention centre regime.

I can see you shifting in your chair—

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

No, I'm not—

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

No, not you, Attorney—the Chair. I think he is advising me nonverbally that I am going off topic here, so I am going to leave it at that because I have respect for the process that we are in. This was just a brief response to some of the comments that were made about freedom of speech.

Attorney, I wanted to draw your attention to a report from the Scrutiny of Bills Committee, which has just been released this morning. I am indebted to my colleague Senator Rice for drawing this to my attention just a brief period of time ago. I wanted to put to you a couple of the observations of that committee in relation to this bill and invite you to respond to those observations.

Firstly, in relation to the issue of trespass on personal rights and liberties as they relate to the right to a fair hearing, the Scrutiny of Bills Committee has found as follows. I should preface the quotes that I am going to read out by saying that this relates to the controlee, the subject of the control order, being given only notice of allegations on which the control order request was based, and the controlee is now required—sorry, that was the previous circumstance: the controlee was required to be given notice of the allegations on which the control order was based, and now the controlee is required to be given sufficient information about the allegations on which the control order was based. I make no adverse comment on that particular change, but it is worth pointing out that the committee sought advice as to whether there is sufficient information which will be provided to a person before a special advocate has been provided with national security information, and the committee observes that it is at that point that communication between the two—that is, the controlee and the special advocate—is heavily restricted.

The committee's report finds that you, Attorney, advised that there may be circumstances in which a person who may be subject to a control order, the controlee, will not be given sufficient information prior to a special advocate seeking the sensitive national security information. It observes the following:

… if a controlee is only given 'sufficient information' about the allegations against them after restrictions are placed on communication with the special advocate, there will be limited opportunity for proper instructions to be given to the special advocate.

The committee then goes on to observe that this would appear to defeat the purpose of the special advocates scheme in instances where the information is not provided to the controlee before the special advocate has received the sensitive national security information.

That is the first observation of the committee that I will invite you to respond to. There are a couple more, Attorney, but perhaps we can do them sequentially. I will offer you the chance to respond to that observation by the committee now.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Before I call the minister, I will remind you the amendment is being moved by Senator Leyonhjelm.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator McKim, I have provided written responses to the report of the Scrutiny of Bills Committee, and I think the most efficient way of dealing with this matter is merely to refer to my responses.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Chair, I will address you again in the Committee of the Whole, but I certainly respect that we are on Senator Leyonhjelm's amendments, so I will allow that matter to conclude.

The TEMPORARY CHAIR: Thank you, Senator McKim. That was my secret hand gesture. Thank you very much—well read. I will put the question that the amendment moved by Senator Leyonhjelm be agreed to.

Question negatived.

Attorney, you have said that you intend to refer me, or that you have in fact referred me, to your written response to the committee. I will make the observation that the matters that I have read out that are contained in that report of the committee are actually findings of the committee subsequent to the written responses that you provided to the committee.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I am sorry, Senator McKim. I misunderstood you. If that is the case, I have not seen the document.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I appreciate that, Attorney, but I will just invite you to respond to the committee's view—I understand you have not seen the document—that in fact the way that you have framed the exchange of the information between a controlee and his or her special advocate means that there will be limited opportunity for proper instructions to be given from the controlee to the special advocate.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Allowing for the fact that I have not seen the document, Senator, you have me at something of a disadvantage, so I will have to answer you in reasonably general terms. I think you misquoted yourself or misquoted me. I think the word was 'may', not 'will be limited opportunity', and that is a very important difference, because ordinarily there will not be limited opportunity but there may be limited opportunity. This raises the issue—which is a very difficult issue in national security law enforcement—of the circumstances in which it is not possible to acquaint a person—either an accused person or in this case a controlee—of everything in the Crown brief of evidence or in the application, as the case may be, because of the sensitive national security nature of that evidence. Of course, it is a fundamental principle of the criminal law and of natural justice that an accused person is entitled to confront their accuser and be made aware of the case against them. It is also, however, in some circumstances impossible in bringing a prosecution. I will talk about a prosecution because I think this problem arises more commonly in prosecutions than in applications for control orders. I am not aware that with the six control orders that have been sought in the last 12 years the problem ever has arisen. It can be the case that not everything in the Crown brief can be shared with the accused person because it may, for example, put the lives of covert sources at risk.

This is a problem that all the jurisdictions have grappled with. The way in which Australia has dealt with the problem is to appoint special advocates, who, in addition to the ordinary obligations of a legal representative, have a super added obligation, as it were, of trusteeship or guardianship of the interests of the accused person so that they are acquainted with the matter but their client cannot be. That happened very rarely, but I think you would understand, Senator McKim, that there may be circumstances, rare though they may be, where information simply cannot be shared with an accused person, without putting lives at risk or otherwise compromising the security of highly sensitive material.

The other alternative, which I would not favour and I do not think any mainstream government favours in any of our Five Eyes partners or elsewhere for that matter is to say, 'Well, because we can't rely upon this sensitive national security information, we will not bring the prosecution at all, even though we are very certain that this person is guilty of a very serious terrorist crime.' That is the conundrum. Nobody is trying to impinge on anybody's civil liberties, but it is the practical reality that in rare cases in a terrorism prosecution some of the evidence may not be shared with the accused person. So a category of special advocates, who are security cleared, is created. And the right of the accused person to know the case against them in every particular is placed upon the shoulders of their legal representative, usually a barrister, who of course has the ordinary obligations of any barrister to vigorously defend his client's interests.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thank you, Attorney. I do acknowledge the challenges that we are all facing in debating these issues. You said no-one is trying to compromise, or perhaps you used the word 'trample', anyone's civil liberties. In fact, I think we could agree that to a degree this piece of legislation does actually attempt to compromise some people's civil liberties. Probably your argument is that it is a proportionate compromise of someone's civil liberties, and that is a debate that you and I have had previously on this legislation and on other pieces of legislation, and no doubt we will have in the future on further pieces of legislation that you have flagged will be coming before this parliament.

Before I move onto the next comment that the committee made that I wish to raise, I will just reiterate the view that the committee has shared, which is that the secret evidence provisions are apt to undermine the fundamental principle of natural justice, which does include a right to a fair hearing. I am sure you would agree, Attorney, that in general terms the right to a fair hearing would include the right of an accused person or a person on whom an application for a control order has been made to give instructions to their counsel, to the person who is representing them.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Before I call you, minister, it would be advantageous to the Senate, Senator McKim, if you could let the Senate know what you are quoting from—what document.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Chair, I thought I had done that. They are from a summary of bills and responses draft Alert Digest No. 8 and the draft Eighth Report of the Scrutiny of Bills Committee.

The TEMPORARY CHAIR: I believe that that report has not yet been tabled in the Senate.

My advice is that it was signed off by the committee this morning.

The TEMPORARY CHAIR: We will seek clarification.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator McKim, that is theoretically possible, but can I remind you of two things. First of all, special advocates are people who are only going to be people who are not only able to be security cleared to a high level but also very experienced criminal barristers. The art of taking instructions from a client is one of a barrister's skills. It is not impossible to take instructions from a client, without necessarily having to put before them every necessary piece of information. There are ways of eliciting or taking instructions from a client by the way in which questions are phrased so that their advocate or counsel can be apprised of everything they need to know in order to present the case competently. Of course, let us never forget that we are talking here about judicial proceedings presided over by a judge. A judge has an overwhelming obligation and an overarching obligation beyond anyone else's obligation to ensure that the accused receives a fair trial.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Chair, can I ask for clarification. If I have inadvertently raised this report prior to when I should have then I will cease immediately to do so. I just ask for your clarification there, given that it appears that it has not been tabled in the Senate but it has been passed through that committee. I just ask for your guidance, chair, if I might.

The TEMPORARY CHAIR: You are correct, Senator McKim. Quite rightfully, it should have been tabled first. But I will flick to the minister as to whether he is happy to address your questions, as part of the report is on the public record now. It has been brought to my attention that, once the bill is dealt with, the report will matter neither here nor there should the government not want to refer to it.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I fear, Senator McKim, you may have committed an innocent and inadvertent contempt of the Senate, but I will not hold that against you, because no doubt it was an innocent mistake. So, here we are. I am being asked questions about a report I have not seen that, strictly speaking, theoretically does not yet exist as a public document—but I will do my best, nevertheless, senator. I think in this discussion we have identified the scope and nature of the problem presented here. Wherever possible, these issues are resolved so as to protect the liberty, rights, privileges and immunities of an accused person.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Could I firstly acknowledge the advice of the chair and indicate that it was not my intent in any way to insult or treat the Senate with contempt by quoting from this report, which, as the Attorney has said, in theory at least and in terms of parliamentary practice, does not yet exist for this chamber. I will cease from a line of questioning that quotes from the report out of courtesy to the Senate. However, given that it is presumably now a public document, even though it has not been tabled in the Senate—

The CHAIR: Senator McKim, may I just remind you it is not a public document.

I will cease that line of questioning, then.

The CHAIR: Thank you.

Bill, as amended, agreed to.

Bill reported with an amendment; report adopted.