Senate debates

Thursday, 1 December 2016


Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016; Second Reading

9:36 am

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

I rise to speak on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 on behalf of the opposition and indicate at the outset that the opposition will be supporting this bill, with amendments.

The bill is the sixth to be introduced since September 2014, making changes to Australia's national security and counterterrorism laws. It introduces a framework in part 5.3 of the Commonwealth Criminal Code that provides for a continuing detention order regime for high-risk terrorist offenders who are considered by a state or territory Supreme Court judge to present an unacceptable risk to the community. This bill was introduced into the Senate on 15 September of this year and immediately referred to the Parliamentary Joint Committee on Intelligence and Security, of which I am a member. We received 18 submissions, including from the Human Rights Commission, the Law Council, civil liberties and Muslim organisations. A public hearing was held, and the committee tabled its report on 4 November 2016.

Labor has consistently worked with the government to ensure our agencies have the powers they need to keep Australians safe; however, that does not mean that the government is provided with a blank cheque by us. We take a bipartisan stance on all national security legislation, but we believe that it is important that the freedoms which we value so highly in modern Australia are maintained. We should assert our values in how we confront terrorism and security threats as well.

Labor closely scrutinised this bill through the committee process, and we put a concerted effort into ensuring this bill has adequate protections in place such that it strikes the right balance between keeping Australians safe and protecting people's rights and freedoms. As a result of this, the committee made 24 substantive recommendations directed to improving oversights and protections in the bill, and the government has now agreed to implement all of these recommendations, which I acknowledge.

I will start by acknowledging that the bill before us seeks to establish extraordinary powers. That is why Labor sought the confirmation that the Solicitor-General had given advice on the constitutional validity of the final form of this bill. The committee recommended that the government seek advice on the final form, and we are pleased that the government did obtain that advice from the Acting Solicitor-General, Mr Thomas Howe PSM QC.

A number of amendments have been secured as a result to the bill which implement extra safeguards and aim to strike the appropriate balance, as I said, between rights, freedoms and community safety. This includes ensuring that terrorist offenders, subject to continuing detention order proceedings, have access to legal representation and will receive a fair trial.

Labor members were also concerned to ensure that the bill was properly targeted at terrorist offenders. The bill no longer includes treason or offences relating to publishing recruitment advertisements among the offences that would make an offender subject to the continuing detention order regime.

Expert witnesses will play a central role in continuing detention proceedings. The committee's recommendations have ensured that both the Attorney-General as applicant, and the respondent to any application, can both bring forward their preferred experts, and that an expert can be appointed at any time by the court.

Labor has also continued to press for a range of review mechanisms, as has been the approach we have taken in relation to many changes to national security legislation. On this occasion, this includes a 10-year sunset clause and a review of the regime six years after its passage. I note, again, the government's acceptance of these provisions.

The main elements of the proposed continuing detention order regime are contained in schedule 1 to the bill, which proposes to insert a new division 105A into the Criminal Code. Proposed subdivision A of that includes the object of the bill and definitions of key terms. The object of the bill is outlined in proposed 105A.1, which states it is:

… to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.

Proposed subdivision B provides that a continuing detention order has the effect of committing the offender to detention in a prison for the period in which the order is in force. The order may be applied to a person, if the person has been convicted of a serious terrorist offence. In the original version of the bill, a CDO, a continuing detention order, could be applied for against a person who has been convicted for the offence of treason.

A number of concerns were raised by submitters, including the Law Council of Australia, that the definition of treason offences are not necessarily comparable to the other terrorism-related offences proposed for inclusion in the bill. The committee accepted this proposition and also noted that no person in Australia has in fact been prosecuted for treason since the end of the World War II. The committee was concerned to ensure that the scope of offences is rightly limited to terrorism-related activities, and it did not consider that the inclusion of treason to be necessary or appropriate. That is reflected in the PJCIS's recommendations.

Proposed subdivision B also includes provisions about how a person who is detained in prison under a CDO must be treated. Some submitters to the committee inquiry were concerned that it might not be possible for the matters set out in subdivision B to be achieved and that this may result in continuing detention being punitive in breach of article 15(1) of the ICCPR.

The requirement that offenders be detained separately to convicted persons is a safeguard that the United Nations Human Rights Committee viewed as necessary to improve similar Queensland laws that were considered by the that committee in Fardon v Australia and Tillman v Australia. This was also acknowledged by the Parliamentary Joint Committee on Human Rights in its report on the bill. The Parliamentary Joint Committee on Intelligence and Security therefore considered that standards for housing arrangements ought be agreed and implemented across all jurisdictions, and that urgent attention must be given to ensuring that the conditions of detention are appropriate and consistent with Australia's human rights obligations. The committee recommended that it be provided with a timetable for implementation of this issue by 30 June 2017.

I want to turn now to the making of an order, and proposed subdivision C includes provisions about how a continuing detention order can be made. The Attorney-General or his legal representative may apply to a Supreme Court for a continuing detention order not more than six months before the end of the terrorist offender's prison sentence. The application must include certain information, and a copy must be given to the offender within two days, subject to certain exemptions.

A number of submitters to the committee were concerned to ensure that crucial evidence that will be relied upon during the CDO proceedings not be withheld from the offender. The Law Council of Australia indicated that secret evidence provisions undermine an offender's ability to obtain a fair trial. However, we note that the Attorney-General's Department, in a supplementary submission, clarified that secret evidence is not permitted. The committee has recommended that the bill be amended to make explicit that an offender is to be provided in a timely manner with information to be relied on in an application for a continuing detention order.

Proposed subdivision C also includes provisions about the appointment of 'relevant experts', the assessments conducted by relevant experts and experts' reports. A relevant expert is defined as a person 'who is competent to assess the risk of a terrorist offender committing a serious Part 5.3 offence if the offender is released into the community'. The court may make a written continuing detention order under proposed 105A.7 if, following receipt of an application, it is:

… satisfied to a high degree of probability on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community.

And it is:

… satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

The court must have regard to a number of factors in forming its opinion about the nature of the risk posed by the offender.

The issue of experts was a matter that the committee received a significant amount on evidence on. A number of submitters raised concerns about the bill requiring the court to appoint experts and then make judgements as to the admissibility of the experts' evidence. There are questions around whether a specialised body of knowledge exists in relation to the prediction of terrorist offenders' likelihood of reoffending. Some submitters also called for the development of a risk assessment tool. The prediction of future terrorist offending for the purpose of continuing detention order proceedings—indeed, for the purpose of national security more broadly—is of a very different nature to the current schemes in Australian jurisdictions which already provide for post-sentence controls to manage certain types of offenders such as sex offenders and violent offenders. There were questions raised before the committee about whether diagnostic tools can be used effectively to assess terrorist behaviour in the same way that they are used to assess high-risk sex offenders which fall within a range of diagnostic categories used by psychiatrists and psychologists to predict future risk. The Law Council raised the issue that there are likely to be challenges to the qualification of people who may be called to provide expert opinions and that this would put courts in an inappropriate position of ruling on objections to the expertise of experts whom the court itself has appointed.

In response to these concerns, the committee recommended that the bill and explanatory memorandum be amended to make explicit that both the Attorney-General, as applicant, and the respondent will be able to bring forward their relevant expert, or experts, and that the court will then determine the admissibility of each expert's evidence. The court also has the discretion to appoint a relevant expert at any point.

The period of a continuing detention order must be no more than three years. However, there is no limit on the number of successive continuing detention orders that may be made. This goes to the nub of why I at the outset acknowledged that these are extraordinary powers. The committee recognised that it is possible for a person to be held for prolonged period beyond their sentence if successive continuing detention orders are applied for and granted by the court.

In its submission to the inquiry, the Australian Human Rights Commission referred to the High Court judgement in Dietrich, noting that Australian law has recognised the inherent power of the court to stay criminal proceedings where an accused does not have legal representation and where legal representation is essential to a fair trial. Accordingly, the committee recommended that the bill be amended to provide that the court has the explicit power to stay proceedings for a continuing detention order and that it be empowered to make an order for reasonable costs to be funded to enable the offender to obtain legal representation.

Recognising that this is extraordinary legislation, Labor has also sought a range of review mechanisms to be incorporated into the bill. We consider that a sunset clause is an appropriate mechanism to ensure that there is a review of the regime after 10 years. As I said, that is appropriate given the extraordinary nature of the provisions of the bill and given that the control order regime and preventative detention regime were also initially subjected to a 10-year sunset clause. The committee is also to complete a review of the regime after six years and the Independent National Security Legislation Monitor is required to complete a review after five years.

In conclusion, this bill does provide for some extraordinary powers. However, particularly as a result of the amendments which have been agreed by the government after the report of the parliamentary joint committee, it will contain a number of safeguards and review mechanisms. We always need to ensure, in confronting national security threats, that we do not let go of the rights and values for which we are fighting. We need to keep Australians safe but also protect those rights. With the inclusion of these safeguards and review mechanisms, the opposition will support this bill.

9:49 am

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

I rise to speak on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. I want to start by reflecting that, recently in this place, we have debated and passed a bill to place control orders on children who have committed no crime and today we are presented with a bill that seeks to keep people in prison after their sentences have been served because they might commit a crime. This offends a basic principle of our justice system. I know that arguments have been put and no doubt will continue to be put that there are other post-sentence detention regimes which exist in Australia and other parts of the world, and that is true—there are—and, to a degree, this legislation shares some similarities with those schemes. But two wrongs or three wrongs or four wrongs or any number of wrongs cumulatively do not make a right. The Australian Greens will not be supporting this legislation before us today. To imprison somebody because they might do something—which is what this legislation seeks to do—represents an unacceptable continuation of the erosion of civil liberties and human rights in this country that we have seen in the name of counter-terrorism, and that erosion has occurred on a bipartisan basis, under governments of both political stripe, all too regularly over the last decade and a half or so.

This bill amends the Criminal Code Act 1995 to establish a continuing detention order regime—that is, a regime that can keep people in prison after they have served the sentence of imprisonment that has been handed to them by the relevant courts. I want to acknowledge that, even though the Greens do not support this bill, we are pleased to see that the amendments circulated by government have adopted the recommendations of the Parliamentary Joint Committee on Intelligence and Security. I will pause there to note the obvious: the Greens and the crossbench are not represented on that committee. It is a bipartisan stitch-up. It is disappointing in the extreme that neither the Greens nor the crossbench has a representative on that committee, and if the government and the opposition were serious about approaching counterterrorism in a constructive and collaborative way then they would make an offer, through amendment, for either the Greens or other crossbenchers, or both, to have a position or positions on that committee.

We understand and acknowledge that this bill is the result of a COAG agreement where the states and territories agreed to implement a nationally consistent post-sentence preventative detention scheme. It is important to point out that continuing detention order schemes are imposed consequent to civil proceedings, and I want to quote Dr Tamara Tulich, writing in the UNSW Law Journal, who said:

Post-sentence preventive detention … orders straddle the civil-criminal divide. While they are connected to a criminal process, in that an individual may be detained … upon the completion of a term of imprisonment, … [it is] at a point in time after that which is traditionally accepted in the criminal justice system. The state may thereby impose significant restrictions upon an individual’s liberty while ‘side-stepping’ the enhanced procedural and evidentiary safeguards that attach to the criminal justice system.

That is one of the points that the Australian Greens want to make in this debate. This bill does effectively sidestep procedural and evidentiary safeguards that attach to the criminal justice system.

I want here to raise the issue of the standard of proof that is contained in this legislation, which is 'to a high degree of probability'. I would be very grateful if the Attorney, in his response in the second reading, could address that matter of the standard of proof, specifically whether this standard of proof exists in any other Australian legislation and, if so, what that legislation is. I would appreciate it if the Attorney would also explain, in lay terms if you like, where the standard of proof of 'high degree of probability' sits in relation to commonly accepted standards of proof such as beyond reasonable doubt, comfortable satisfaction and balance of probability. If the Attorney is able to respond to that in his second reading contribution, that would be appreciated by the Australian Greens. If that response is not given, I indicate that I will seek to go briefly into the committee stage for this legislation and explore that specific matter, but I do not intend to unnecessarily delay the Senate by a lengthy exploration of this bill in the committee stage.

It is important that we place on the record the differences between the classes of people that can have a continuing detention order made under a state scheme and the class of people that this legislation will apply to. State schemes are directed at high-risk sex offenders and high-risk violent offenders. In those cases the offender who is subject to a continuing detention order has committed a serious sexual or violent offence. In contrast, this bill will allow for a continuing detention order to be made against an offender who has committed a preparatory terrorism offence. If it passes in the form that is flagged—that is, its current form with the amendments that are proposed—this bill will be the first piece of legislation in Australia that will allow for the imprisonment of someone who might commit a crime and who has not already been imprisoned for a sexual or violent offence. That is a step that has never been seen in this country before.

In a submission to the Parliamentary Joint Committee on Intelligence and Security, Professor George Williams and others said that this legislation:

… captures within the definition of a ‘serious Part 5.3 offence’ not only the commission of a terrorist act but also a broad range of preparatory conduct. This includes, in the first place, the five preparatory terrorism offences in Division 101 of the Criminal Code. These go beyond the traditional inchoate offences by criminalising activities which are merely preparatory to the commission of a terrorist act.

… For example, it is an offence to attempt to possess a thing connected with a terrorist act or to conspire to do an act in preparation for a terrorist act. These offences ‘render individuals liable to very serious penalties even before there is clear criminal intent’ to engage in a terrorist act.

By contrast, the scope of the serious sex offence and serious violence offence post-sentence detention regimes have been carefully confined to circumstances where a particularly serious offence has actually been committed or where a person has attempted or conspired to do so.

To sum up the concerns raised in that submission, which are absolutely and strongly shared by the Australian Greens, this bill goes a significant step further than anything we have seen before in this country in the context of post-sentence detention regimes and captures the act of committing preparatory offences—that is, offences where someone has been found guilty not necessarily of committing a terrorist act but of a range of offences that fall, in chronological sequence, well before the actual commission of a terrorist act.

This bill raises a number of human rights concerns. As I said, it further steps down the road that this parliament has been on for a decade and half, where we have seen an ongoing erosion of civil liberties and human rights in this country in the name of protecting Australia from terrorism. I want to be clear about the Greens' view here, and that is that of course a primary responsibility of this parliament needs to be to keep Australia safe. I do not think anyone in this parliament would disagree with that statement.

The issue, of course, becomes: where do we find the balance? Again, I do not think anyone in this house would disagree with that statement. Where there would, however, be differences is where that balance ought lie. As I said, the ongoing erosion of civil liberties and human rights in this country has been delivered on a bipartisan basis by the Liberal and National parties and the Labor Party, and it has been done over governments of both political stripe. This is why the Greens believe that there is an urgent need in this country for a counterterrorism white paper. The erosion of civil liberties and human rights that has occurred in this country has occurred without governments—and I include governments of both political stripe here—making a robust evidentiary case and without putting a constructive and solid argument before this parliament and the Australian people that the erosion of civil liberties and human rights is actually making Australia safer.

I have made this point in the past that it is time for a white paper on this issue. I know the Attorney will be beginning to get sick of me raising this, but I do believe that it is time. I accept a response that has previously been given to me, which is that the counterterrorism landscape is changing quickly, and I agree with that and I accept that. Sorry, I will just withdraw that and clarify it: I accept the response that has previously been given to me that the terrorism landscape is changing rapidly around the world, and that is true. It is also true to stay that the counterterrorism landscape is changing rapidly around the world, and we are dealing with a case of that today. But I make the point that a white paper can be a living document. It can be a document that is able to be carefully and rigorously changed and revised in response to the changing landscape of terrorism around the world. It would be inconceivable that we would move forward in defence policy in this country without the foundation of a white paper, and it ought to be inconceivable that we can move forward in response to the threat of terrorism and violent extremism and with policy responses to respond to terrorism and violent extremism without a white paper process.

I turn to the human rights concerns of this bill. The explanatory memorandum states that, to the extent that it limits some rights, the limitations are reasonable, necessary and proportionate. The Australian Greens do not accept that statement. I will give a couple of examples of our concerns. But, firstly, it is worth placing on the record that the United Nations Human Rights Committee found that the Queensland and New South Wales schemes—these are state-based schemes that relate to sexual offenders or violent offenders—breach the prohibition on arbitrary detention under article 9 of the International Covenant on Civil and Political Rights. Article 9 provides that a person must be detained lawfully and that any detention must not be arbitrary, meaning that it must not be inappropriate or unjust and must be predictable. It is difficult to understand what is just or predictable about being told 12 months before your sentence is due to finish that the government intends to apply to keep you in prison for a further three years. In addition, the Senate Standing Committee for the Scrutiny of Bills commented that continuing detention can plausibly be characterised as retrospectively imposing additional punishment for past offending.

To issue a continuing detention order, a court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorist offence if the offender were to be released into the community. The Australian Human Rights Commission, in their submission, stated:

For any system of preventative detention to be justifiable, it must be possible to make robust predictions about the likelihood of future risk.

Predicting future risk or dangerousness is notoriously difficult. Dr Tulich in a submission to the committee stated:

At present, there is no way to accurately assess the level of risk that a convicted terrorist will reoffend. This is because no validated terrorism-specific risk assessment tools currently exist.

I would ask the Attorney, if possible, during his second reading response, whether there is any information he can place before the parliament about whether, in relation to any of those tools—that is, tools that would allow for the assessment of risk in a terrorism-specific context—there is any work being done by government to develop such an assessment tool.

I also want to make the point that in our prison system—and I accept this is, in the main, a state and territory responsibility—we do not offer an adequate range of rehabilitation programs in our corrections system. If you want to bring crime down in any jurisdiction in the context of this legislation and if you want to minimise the likelihood of people conducting terrorist attacks in this country, you have to invest in rehabilitation programs within our prison system. Investment in those programs ought to be considered a strategic part of the government's countering violent extremism programs. If we are really serious about not releasing potentially dangerous terrorists into our community, we need to put far more resources into rehabilitation programs in our prisons. If we did that, perhaps legislation like this would either not be necessary, or would not have such arguments that the government and opposition have used to support it.

In the short time left to me, I want go to the issue of statements that have been made by government ministers and legislation that has been passed or flagged by government and their impact on our security agencies' work in engaging with communities in Australia as part of the countering violent extremism program. We have heard Minister Dutton recently make public comments about Lebanese Muslims, which are extremely unhelpful. As the Attorney is well aware—because he was sitting next to Mr Lewis, the director-general of ASIO, during Senate estimates recently—I asked Mr Lewis about statements made by high-profile Australians that seek to pick off minority groups in our community and what the impact of those statements was on ASIO's work. Mr Lewis made it very clear—and I make it clear that he was not referring specifically to any person; it was a generic question—that statements of that ilk make the work that ASIO is doing more difficult. The soft work, if you like, that ASIO is doing—reaching out into communities where there is a risk that some people in those communities may become radicalised and working with them to attempt to prevent radicalisation of people in those communities—is made more difficult by public comments of the nature that I have just been speaking about.

It is also worth pointing out that legislation like this has the same effect, in the view of the Australian Greens. There are some communities in Australia who feel that this legislation will disproportionately apply to them, and once again that leads to them circling the wagons, if you like, and again it makes the job of our security agencies more difficult.

Mr Lewis was clear that ASIO is well aware that we cannot arrest ourselves out of the challenge of violent extremism, and he is absolutely right about that. The best and most strategic way, in the long term, to counter violent extremism in this country is to engage in deradicalisation programs and to engage with communities where there is a risk that people may become radicalised and attempt to prevent that from happening, because prevention, in the context of terrorism, is better than responding to terrorist attacks after they occur.

So, while we acknowledge that there may be arguments to bring in legislation that erodes civil and human liberties in the name of keeping Australia safe, we do not believe the argument has been adequately made by government in regard to this legislation. We believe it unacceptably erodes civil liberties and human rights in this country, and on that basis we will not be supporting it.

10:09 am

Photo of Jenny McAllisterJenny McAllister (NSW, Australian Labor Party) Share this | | Hansard source

I rise to speak on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. I want to take the opportunity to speak to the process that the parliamentary joint committee went through in reviewing this bill. In particular, I would like to highlight some of the issues that Labor members were focused on through the committee process.

Labor supports the intent of this bill. We acknowledge the threat that terrorism poses to Australians and our responsibility to curtail this risk. We also acknowledge the extraordinary nature of the provisions that the bill seeks to establish. Our concern was to ensure that proper scrutiny was applied to the provisions of this bill. As always, we seek to strike the appropriate balance between individual rights and community safety, a balance that is sought in all democratic societies and is always subject to debate.

This bill comes to the parliament with the unanimous support of all states and territories. The communique from the 5 August 2016 meeting of all attorneys-general noted:

Terrorism poses a grave threat to Australia and its people. It is important to manage terrorist offenders who may continue to pose an unacceptable risk to the community following the expiry of their sentences. It is critical that we work together to implement this scheme as early as possible.

The highest priority for Commonwealth, State and Territory Governments is to ensure the safety of the community. We also recognise the importance of balancing that with the protection of basic human rights

Labor supports the principles that are articulated in that communique. However, preventative detention for the purposes of community safety is an extraordinary step, and Labor takes very seriously the parliament's role in ensuring that security legislation is proportionate to the threat. The committee went through a thorough process of assessing the details of the bill and made a number of recommendations to make the bill more proportionate, effective and fair. There are six issues in particular that concerned Labor members of the committee and that I would like to highlight.

First, Labor committee members were concerned about the lack of clarity about what advice the government had sought and received from the Solicitor-General about the constitutionality of the bill in its final form. I note the recommendation in the committee report that the government provide advice regarding the constitutionality of this bill in its final form.

Second, Labor members were concerned to ensure that the bill was properly targeted at terrorism offenders. As originally drafted, the bill included treason amongst the offences that would bring an offender within the continuing detention order regime. The Law Council of Australia gave persuasive evidence that treason was a qualitatively different offence from terrorism offences. Labor members agree with the Law Council that the case has not been made for extending the regime to treason. To the same end, Labor members also considered that inclusion of some of the recruitment offences in part 5.5 of the Criminal Code was inappropriate. Offences relating to the publishing of recruitment advertisements differ qualitatively from other recruitment offences. Labor committee members support the recommendation to exclude these publishing recruitment offences and treason from the offences which enliven the continuing detention order regime under the bill.

Third, Labor members consider that it is necessary to provide procedural fairness to offenders to protect both offenders and the integrity of the process. The committee received numerous submissions about the problems that would arise from allowing offenders to be made the subject of a continuing detention order on the basis of secret evidence. Labor members were concerned that secret evidence provisions would undermine an offender's ability to obtain a fair trial. We were grateful to receive confirmation from the department that, although some information may be protected from public release, all relevant information will be provided to the offender. For this reason, we strongly support recommendation 11 of the report, which seeks to make it abundantly clear that the offender is to be provided with all relevant information in a timely manner.

Labor members also took note of the evidence presented to the committee that the cost of retaining legal representation for a hearing may be beyond the means of many offenders. Continuing detention order proceedings may be lengthy and complex. They are also of extreme importance to the offender, and we consider that it is essential that offenders have access to legal representation as an important safeguard of their rights as well as of the integrity of the continuing detention order process itself. We support the recommendation to empower the court to stay proceedings and make an order for reasonable costs to be funded to enable the offender to obtain legal representation.

Fourth, Labor recognises the central role that expert witnesses play in continuing detention proceedings. A number of witnesses noted the unusual nature of having the court appoint expert witnesses. Labor considers that it is necessary for each party to the proceedings be able to bring forward expert witnesses. To this end, Labor members support recommendations 9 and 10, which make explicit each party's ability to bring forward their preferred experts. The court will then determine their admissibility.

Fifth, preventative detention is a relatively new part of our legal system. The committee noted:

Considerable work will be required … to implement the CDO regime … The scope of this work includes risk assessment tools, rehabilitation programs, housing arrangements and oversight mechanisms.

Labor are cognisant of the need for a robust implementation and review process to be established. We strongly support the inclusion of review mechanisms, including a 10-year sunset period and a review of the continuing detention order regime six years after its passage. These recommendations recognise the issues associated with the implementation of a new regime, as well as the extraordinary powers that are contemplated in the legislation. In particular, Labor committee members strongly supported the inclusion of a sunset clause, hopeful that the security challenges which confront Australia today may ease or alter in coming years, while of course recognising that the circumstances today demand a serious response.

Sixth, Labor members of the committee recognised the importance of a regime for continuing detention orders to be in proper harmony with state based regimes for control orders. Better integration of the two regimes would allow more gradation in the level of control applied to an offender. As observed previously in this chamber, the national terrorism threat level for Australia is 'probable'. Credible intelligence, assessed by our security agencies, indicates that individuals or groups have developed both the intent and the capability to conduct a terrorist attack in Australia. Our task is to develop laws which respond to these circumstances while protecting the liberties and freedoms which characterise our democratic system.

Labor take a bipartisan stance on national security legislation because the priority is to keep Australians safe and it is important our security agencies have the right legislative support in those efforts. It is also important that the freedoms which we value so highly in our democratic society are maintained. We need to strike the right balance between ensuring the safety of the community and protecting human rights. To this end, we are pleased that the government has accepted the recommendations of the PJCIS and that they will be implemented.

10:16 am

Photo of David LeyonhjelmDavid Leyonhjelm (NSW, Liberal Democratic Party) Share this | | Hansard source

I rise to oppose the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016. It would effectively allow for life imprisonment of someone who was not originally sentenced to life imprisonment, even when there is no fresh or compelling evidence to question the original sentence and no suggestion that the original sentence was somehow tainted. Various stringent conditions have to be met to achieve effective life imprisonment of someone who was not originally sentenced to life imprisonment. I am happy that these conditions exist, but no amount of window-dressing can hide the fact that this is a fundamental assault on a basic human right. It amounts to imprisonment without trial.

We should not be able to effectively impose life imprisonment on someone who was not originally sentenced to life imprisonment. A court can impose a sentence of life imprisonment on someone who engages in a terrorist act or who prepares or plans a terrorist act. If a court that considers all the evidence and all the circumstances does not impose a life sentence, this judgment should not be thrown out when a prisoner's release approaches. To do so would be to effectively deny that person a fair trial. No Australian, no matter how seemingly abhorrent—and I acknowledge this is intended to apply to people who are pretty abhorrent—should be denied a fair trial. Courts are unable to impose a sentence of life imprisonment for acts that fall short of engaging in, preparing or planning a terrorist act. If, after committing such acts, a person is effectively imprisoned for life through continuing detention laws, we are effectively throwing out the statutes that set maximum penalties.

The fact that we have statutes that set maximum terms less than life imprisonment reflects the fact that we want to give people found guilty of certain offences another chance at freedom. We could be 100 per cent safe from reoffenders by locking up every prisoner for life, but that is not what we do. When the government passes a law with maximum penalties, the government is making a promise. It is promising that, if you commit that offence, your penalty will not exceed that maximum. The government undertakes this promise not for the benefit of terrorists; it does this for the benefit of all of us. We should all be able to know how the state will react if we behave in certain ways; otherwise, we are oppressed by the threat of arbitrary state action—like being blindfolded as you cross the street. The fact that people who committed terrorist offences in previous years did so without the threat of continuing detention does not mean that we should retrospectively impose the threat of continuing detention on these people now. Just because they acted oppressively does not mean that we should act oppressively.

When a court finds someone guilty, it must be satisfied beyond reasonable doubt. But proceedings for continuing detention are civil proceedings, and the court need only be satisfied to a high degree of probability that the person poses an unacceptable risk of committing a terrorist offence. The fact that we withhold punishment unless guilt is proven beyond reasonable doubt might sometimes allow the guilty to go free, but it also limits the injustice of people being punished beyond what is deserved. This principle should be retained. We should not be able to effectively impose life imprisonment on someone who was not originally sentenced to life imprisonment. And we do not need to. Courts are able to impose control orders on all terrorist offenders who finish their prison terms. Control orders severely constrain movement, activities and association, and they allow intrusive surveillance. If there is any deficiency in powers for control orders, let's fix them rather than pursue continuing detention.

10:21 am

Photo of Nick XenophonNick Xenophon (SA, Nick Xenophon Team) Share this | | Hansard source

Although I do not intend to make a long speech, the Criminal Code Amendment (High Risk Offenders) Bill 2016 is undoubtedly an important piece of legislation in terms of its significance for public safety, for how we deal with very important questions of legal principle in the criminal law and for the relationship between citizens' security and their liberty. As I have remarked in relation to previous bills in this field, there has been a steady drumbeat of counterterrorism legislation passed by the parliament since September 2001. Much of this legislation has been justified by the threat posed by terrorist groups. That said, the sheer volume of new laws should give us pause for thought. We could reasonably ask, I think, whether successive governments have found it much easier to propose new and often draconian legislation than they have to address more effectively the causes of terrorism and radicalisation of what are very small groups, indeed individuals, within the Australian community.

This bill introduces a new regime into part 5.3 of the Commonwealth Criminal Code that provides for the continued detention of high-risk terrorist offenders who have served a custodial sentence but are still considered by a court to present an unacceptable risk to the community. As senators are no doubt aware, there have been some 19 counterterrorism operations since September 2014, resulting in the charging of 48 persons—and no doubt we are safer as a result of those operations. The Attorney-General has told the Senate that across the country there are a total of 15 terrorist offenders serving a custodial sentence and 37 persons before the courts. This legislation has been brought before the parliament in anticipation that some of those persons currently incarcerated will still pose unacceptable risks to the community if they are released after finishing serving their current custodial sentences.

From time to time we read media reports concerning so-called high-risk terrorist offenders held in the New South Wales prison at Goulburn. It is claimed that some of these prisoners continue to hold extremist beliefs and may pose a significant threat to the community after the end of their sentences if not subject to some form of continuing control and in some cases, perhaps, continued detention. If this is so, I would suggest that the Commonwealth and state governments need to look again at the management of such prisoners, the effectiveness and resources devoted to de-radicalisation programs in our prisons, and the question of whether this legislation is an effort to deal with policy and operational failure in dealing with persons convicted of terrorism offences.

I do not make that claim, and perhaps some of these terrorist offenders are truly incorrigible and they are too much of a risk to the community and must be kept in custody indefinitely, but it bears thinking about. Have we allowed our high-security prisons to become indoctrination centres where Islamic extremism is perpetuated, perhaps strengthened, and in some cases spread to others? Perhaps the Attorney-General could provide the Senate with a detailed account of the measures and programs currently in place that are designed to de-radicalise or otherwise reform terrorist offenders and to prevent the radicalisation of other inmates who might also pose threats to the community.

There are, of course, precedents in state and territory legislation, as well as overseas in the United Kingdom and New Zealand, for post-sentence preventative detention regimes. Existing laws deal with high-risk sex offenders and/or violent offenders. These need to be considered. These laws were somewhat controversial when first introduced but that is a threshold already crossed in the interests of public safety, and that is why I support those sorts of laws regarding high-risk sex offenders and violent offenders. This bill adapts those arrangements to provide for a preventative detention regime for terrorist offenders who may continue to pose an unacceptable risk to the community following the expiry of their sentence.

As senators will be aware, law enforcement agencies can already seek to rely on control orders to manage the risk of terrorist offenders upon their release from prison. However, the Attorney-General has asserted that there may be some circumstances where, even with controls placed upon them, the risk an offender presents to the community is simply too great for them to be released from prison. While not wishing the Attorney to spell out how a person might evade or circumvent control orders, I think it would assist the Senate if he elaborated on this point and the nature of the potential threats he has in mind.

In his second reading speech, the Attorney-General referred to his consultations with the states and territories and the agreement of the states to enact amendments to existing referrals of power relating to part 5.3 of the Criminal Code to make explicit that state support extends to the post-sentence preventative detention regime. This is important to ensure the proposed regime has a sound constitutional foundation.

Given the implications of the legislation—to provide for potentially indefinite detention of persons who have already served custodial sentences—it is vital that the bill contain a range of important safeguards. The bill will enable the Supreme Court of a state or territory to make two types of detention orders against a person. The first is a continuing detention order, which will enable a person to be detained in prison for up to three years. However, further applications may be made, and there is no limit to the number of such applications. An order can only be made against a person who is currently imprisoned and serving a sentence for specified terrorism related offences under the Criminal Code. The second type of order a court can make is an interim detention order, which can last for up to 28 days. An interim detention order will be available in circumstances where the terrorist offender's sentence or existing continuing detention order will end before the court has had an opportunity to determine the continuing detention order application.

The bill provides that only the Commonwealth Attorney-General may make an application for a continuing detention order to the Supreme Court of the state or territory in which the person is currently imprisoned. The court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence if the offender is released into the community. A serious terrorism offence is an offence in part 5.3 of the Criminal Code that carries a maximum penalty of seven or more years of imprisonment.

The court must also be satisfied that there is no other less restrictive measure that would be effective to ensure community safety against the risk the person presents. This is a very important aspect of the regime. This is a measure to protect the community, but it must also be a measure of last resort. A continuing detention order is appealable and must be reviewed every 12 months. Furthermore, a person must be at least 18 years old when their original sentence ends and cannot be accommodated or detained in the same area of a prison as persons serving ordinary sentences of imprisonment except in certain circumstances.

The Attorney-General appropriately referred this bill to the Parliamentary Joint Committee on Intelligence and Security, a committee that I think I will probably never ever be on, even if I wanted to—

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

I wouldn't say that.

Photo of Nick XenophonNick Xenophon (SA, Nick Xenophon Team) Share this | | Hansard source

given it seems to be pretty much a closed club.

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

Not necessarily, Senator.

Photo of Nick XenophonNick Xenophon (SA, Nick Xenophon Team) Share this | | Hansard source

The Attorney-General is saying something there—I am sure it is complimentary!

The PJCIS produced a report and recommended that the bill be passed, subject to the implementation of some 23 recommendations. These recommendations include, but are not limited to, amending the bill to remove treason and the publishing of terrorist advertisements from the scope of offences covered by the legislation, and ensuring that the rules of evidence apply to the matters the court is required to have regard to in its decision as to whether a terrorist offender poses an unacceptable risk of committing a serious terrorism offence if released into the community. It also recommended that, for the avoidance of doubt, the government should amend the Criminal Code to make explicit that a control order can be applied for and obtained while an individual is in prison but that the controls imposed by that order would not apply until the person is released. The final recommendation I refer to is that the government consider whether the existing control order regime could be further improved to most effectively operate alongside the proposed continuing detention order regime.

Significantly, the PJCIS also recommended that the continuing detention order regime be subject to an initial sunset period that expires 10 years after passage of this bill and that reviews of the operation of the regime be undertaken in due course by the Independent National Security Legislation Monitor and the PJCIS. A sunset clause and independent reviews are essential given the fundamental nature of this regime.

The PJCIS has further recommended that the Attorney-General provide the joint committee with a clear development and implementation plan and that such a plan should be provided prior to the second reading debate in the Senate. I would be grateful if the Attorney-General would provide such a plan to all senators as we consider this bill. I also note that the PJCIS has recommended that, following the consideration of all of these recommendations, the government should obtain legal advice from the Solicitor-General on the final form of this bill. I would urge the Attorney-General to do so and to share that advice with the Senate.

As I said on previous occasions, the PJCIS is not infallible, and it is not a substitute for close and careful review by the Senate and its committees of all counterterrorism and national security legislation. In this case, however, I must say the joint committee has done a thorough job in relation to what is an important piece of legislation that raises very important questions of principle. I note that the government has accepted all 24 of the joint committee's recommendations and will be moving amendments to implement recommendations 2, 3, 4, 5, 6, 8, 9, 11, 12, 13 and 15 to 20, and to address issues arising from further consideration of the bill since its introduction. I welcome these amendments and can indicate that my colleagues and I will be supporting this legislation.

10:30 am

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I rise today in support of the government's Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, which amends the Criminal Code Act 1995. Australia has changed over the years, and so has the world, with an Islamic ideology that has brought us to the point where we need to make changes here. Terrorism is part of our life on the Australian streets, and we have seen that with the murder of innocent Australians due to terrorism. We have been fortunate enough to have ASIO, our Federal Police and others, who have done a wonderful job in stopping any other threats of violence and acts of taking people's lives. But we know that this is not always going to be the case. Especially today, outside the front of Parliament House; we have protestors there, and people who have been able to get into a position on top of this house and put a banner up. It beggars belief that this was able to get to the stage that they could be there and put a banner of that size up without being stopped.

We have to look at where Australia is headed and what we are going to do about it. I have always stated that we need to look at the rest of the world and at problems that other countries are having. I would like people to cast their minds back to Lebanon and what has happened to that country. Today, we view from a distance the disaster that is unfolding in the Middle East. Worst though—and one that could be cataclysmic to the civilised world if not prevented—is the obliteration of the last oasis of freedom for Christianity in the region. I refer here to the Christian existence in Lebanon. Sometimes it appears that we turn a blind eye to this dilemma, being thousands of miles away.

Today in the Middle East, Lebanon remains the only place where Christians can live, worship, gather, socialise together, build churches and schools, have political and social rights, and not have to pay duties just to be Christians. We in Australia take these freedoms for granted because we here are free of oppressive entities; however, this liberty, except for Lebanon, ceased to exist for Christians in the Middle East since the onset of Islam. Now the danger bells are ringing aloud in Lebanon as well.

This land has known a free Christian existence since Jesus's days on earth. In fact, Tyre was the first of the Lebanese cities to embrace Christianity. Many of these early Lebanese communities got to know Jesus from his visits to Tyre, Sidon and the Galilee region. The first church in Lebanon was in fact the church of Tyre, established in 34AD, and it is considered to be the earliest outside of ancient Israel. Throughout the 3rd, 4th and 5th centuries, Christianity spread into most of modern day Lebanon—inland into the mountains and the Beqaa Valley. Free Christian worship has continued until now. But if we wish to see this endure we must act now.

This community has suffered immeasurably over the centuries. The oppression of this Christian community began with the rise of Islam in the region from the 7th century onward. From this period forward, the Christians were subjected to many conquests, leading to systematic persecution, forcible conversion and ethnic cleansing. Probably the most brutal periods were during the reign of the Mameluke Sultanates and the Ottoman Empire. Despite their isolation, the Christians of Lebanon managed to survive centuries of persecution and conquests, and, through their sacrifices, managed to keep the Christian faith alive in this hostile region. In more recent times, even after the demise of the Ottoman Empire, attitudes have still not changed and Islam continues to reject Lebanon as a country with Christians as equals. Despite this attitude, Christians continued to work hard to establish Lebanon as a land of freedom.

Modern day Lebanon was built, by the efforts of Christians, to be a beacon of freedom and hope to all its inhabitants. This was in stark contrast to the realities of the region. A new understanding was forged between Christians and Muslims—Sunni, Shiite and Druze—to protect the identities of everyone, including a power-sharing formula. Despite this understanding many attempts have been made by Islamic forces to change the face of modern day Lebanon. The most serious and devastating of these was through the initiation of the civil war in 1975. The circumstances that arose at this time were not dissimilar to the events enveloping other Middle Eastern countries today, namely Syria and Iraq, where a combination of murderous actions by Islamic State, the Assad regime and the Iranian regime have led to occurrences of genocide, ethnic cleansing and mass forced migration of local populations, with minority groups—the Christians especially—being the main victims. The Christian community in Lebanon faced throughout the civil war the same existential threats and dangers as we see unfolding in terror hotspots around the world today, namely the Assad regime, the forefathers of Islamic State and, later, the Islamic state of Iran.

The situation in Lebanon today is very precarious, and it is on the precipice of the abyss. For example, there are more moderates in the Sunni population of Lebanon currently than there are extremists, who are presently only a small minority. However, the presence of the extremist Shiite face of Islam—and its provocations and incitements—represented by Hezbollah could lead at any instance to the radicalisation of many of these moderate Sunnis. Lebanon today still projects the Free World's values into the region because Christians still have some influence in that country, but, once this influence disappears, the last oasis of freedom in the region will have vanished. Then Lebanon will be torn between the 'Shiite crescent' led by Iran and the form of Sunni extremism projected by al-Qaeda and Islamic State.

The delicate demographic make-up of Lebanon that was already under threat due to the Islamist mentality of nonacceptance of others is now under more pressure due to a recent wave of Syrian refugees in addition to the existence of Palestinian refugees from previous conflicts, the vast majority of whom are Muslims. These refugees in total number close to two million, which represents 50 per cent of the population of Lebanon. To bring this reality into context, imagine if 12 million predominately Muslim refugees landed on our doorstep overnight.

I have stated that because Australia is in a very precarious situation, and we need to take control of our borders and control who comes into our country. We should be very strict and bring in people who are compatible with our culture and our way of life. And we are a Christian country. A lot of Australians will not admit that, and say, 'We are multicultural and can allow other people here.' That is why we have come to the stage that we have, where we see murders on our streets—and I do say 'murders'—and where a lot of people wish to cause us harm because of their political ideology and the way they wish to change our country.

I will not apologise to anyone for my patriotism towards my country. The fact is that we are—our heritage, our culture—a Christian country. We have other religious organisations here; we never hear any terrorist threats from them whatsoever. They live in peace. They live in harmony. They are assimilated into our society.

We would not be discussing this bill or talking about extending sentences for terrorists unless, as I believe, Australians are in fear of what they are faced with every day on our streets—and you cannot close your eyes and minds to what is happening. People are in fear, and that was quite evident when 49 per cent of Australians said, 'No further Muslim immigration into this country.' The main reason was that they do not assimilate into our society and they have no intention of doing so. It is quite amazing that, of that 49 per cent who actually voted for that, or agreed to it, 34 per cent were Greens voters. They are saying they do not want further Muslim immigration into this country.

So let's just stop saying that everyone has a right to come here; start working towards protecting our country; and take notice of what is happening in other countries around the world, whether it be France, Germany or the Netherlands—even what has happened in England, because people voted for Brexit, to get out of the EU, so that they control their borders.

We have to be smart. We are the leaders of this nation. It is up to us to ensure that we make our streets and our communities safe for all Australians. I tell those people out there with the intention of committing terrorist acts on Australians: you are gutless, you are the worst people that I could ever imagine speaking about, and, if you have so much hatred for the Western world, I suggest you go back to another country that suits your beliefs, your ideology. As long as I am here in this parliament and I have a voice for the Australian people, I will continue to speak out against them and I will continue to speak out against those who keep protecting them and shout me down and call me racist or say I am tolerant. Tolerance comes from both sides of the argument.

In closing, I do support the government's bill. I think it is a good start to show some strength about where we are headed and to take control of our own destiny.

10:42 am

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

I thank honourable senators for their contributions to the debate. The Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 responds to a significant public safety issue by establishing a framework for the continued detention of high-risk terrorist offenders serving custodial sentences who are considered by a Supreme Court to present an unacceptable risk to the community. The court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender does pose an unacceptable risk of committing a serious terrorist offence if released into the community.

The proposed post-sentence preventative detention scheme is a necessary response to the serious threat that terrorism poses to Australia and its people. Since September 2014, there have been 24 counterterrorism operations in Australia, resulting in criminal charges against 55 persons. Across the country, there are a total of 17 terrorist offenders serving custodial sentences, and 40 persons currently being prosecuted. During his contribution, Senator McKim asked for the robust evidentiary case to justify the bill. There is no clearer and stronger or more robust evidential case than the very significant escalation in the amount of terrorism-related conduct in Australia, as evidenced by those figures.

All state and territory governments agree on the need for this bill, and I want to thank them for their cooperation. This has been a collaborative, cross-jurisdictional, cross-partisan exercise. At the Council of Australian Governments meeting in December 2015, the Prime Minister, premiers and chief ministers agreed to develop a nationally consistent postsentence preventative detention scheme to enable a continuing period of imprisonment for high-risk terrorist offenders. At a COAG meeting in April, states and territories agreed, in principle, for the Commonwealth to lead the process through Commonwealth legislation, in consultation with the states and territories, to develop such a postsentence preventative detention regime that could apply uniformly across all jurisdictions. After further discussion between the Prime Minister, the premiers and chief ministers in July, on 5 August I met with state and territory attorneys-general to discuss the issue. All jurisdictions agreed in principle to the creation of a national postsentence detention regime on the terms of the Commonwealth draft bill. In accordance with the 2004 Intergovernmental Agreement on Counter-Terrorism Laws, states and territories have now all agreed to the form of the bill now before the parliament.

The regime is modelled closely on existing state and territory postsentence detention regimes for high-risk sex or violent offenders. The bill has had the benefit of extensive scrutiny by parliamentary committees, including the Parliamentary Joint Committee on Intelligence and Security. In its advisory report on the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016, the committee made 24 recommendations to improve the bill and the explanatory memorandum, and it recommended that the bill be passed once the recommendations were implemented. In their contributions, Senator Wong and Senator McAllister suggested that these recommendations came from Labor members of the committee. The Parliamentary Joint Committee on Intelligence and Security meets privately and has always operated collegially and collaboratively. The recommendations are not recommendations from the Labor Party. They are recommendations of the committee—a committee with a government majority, in fact, in which both government and opposition participants agreed and joined. The government has accepted and has implemented, or will implement, every recommendation. In line with the committee's report, the amendments I will move are primarily directed towards somewhat narrowing the scope of the regime, enhancing the already strong safeguards and strengthening reporting and oversight mechanisms.

Might I address some of the matters that have fallen from the lips of honourable senators in their contributions to the debate? I will begin by thanking those political parties who have indicated that they support the bill. I want to thank the opposition. This is, as Senator Wong pointed out, the sixth major piece of counterterrorism legislation which this parliament has dealt with since September 2014, and all of them have been supported by the opposition. As I said a moment ago, the fact that the PJCIS has recommended in each of those cases amendments which the government has then adopted is an illustration of the dialogue and the interlocutory process between the executive government and the parliament, speaking through its committees. It is an example of our system working as it was designed to work. The executive government, through ministers, in consultation with their departments and agencies, develops legislation to address an identified need. We consult the wisdom of the parliament through its committees. The parliament through, in this case, the PJCIS, considers the proposal, recommends where it sees opportunities to improve the proposal and recommends improvements to what the executive government has put forward. The executive government considers the views of the parliament and, as in this case, adopts those recommendations, and then we move forward to enact the bill in a bipartisan manner. That is not something to be made the subject of political pointscoring. It is something that the government welcomes, and, as I said, it is an example of the system working the way the system was meant to work.

I would also like to thank Senator Xenophon, the leader of the Nick Xenophon team, and Senator Hanson, the leader of One Nation, for their indications of support for the bill. Two interests represented in the Senate, the Greens, represented in this debate by Senator McKim, and Senator Leyonhjelm, have indicated that they oppose the bill. I will deal with the issues that those honourable senators have raised now.

I will deal first with what Senator McKim and Senator Leyonhjelm have had to say. Their contributions are essentially that this bill should be opposed because it impinges upon civil liberties and human rights. The civil liberty point of view should always be heard in a debate like this. Whenever the executive government proposes to extend the power of the state to punish, including policing, then the civil liberties point of view should always be heard in order to challenge why that is necessary. I welcome the contributions of Senator McKim and Senator Leyonhjelm; although, if I may say so, with all due respect, I find the civil liberty point of view more credibly expressed by a contribution from someone like Senator Leyonhjelm, who adopts a classically liberal or libertarian philosophy, than from Senator McKim, whose party seems to be beloved of the political philosophies of the authoritarian Left. Leaving that to one side, I do welcome the contribution to agitate the issue of civil liberty. These are always compromises as I think, in various ways, Senator McKim and Senator Leyonhjelm have acknowledged.

I will now deal with a couple of the points that Senator McKim has made. Firstly, he raised the question of the standard of proof. The standard of proof, as you have pointed out, Senator McKim, is high degree of probability, and it also requires that the fact-finding tribunal, in this case a supreme court or the judge of a supreme court, act on the basis of admissible evidence. A high degree of probability sits between the traditional civil standard of proof, which is on the balance of probabilities or, if I may hazard the use of layman's language, 'more likely than not' and the criminal standard, which is 'beyond reasonable doubt' so that if there is any reasonable doubt about the conclusion then the conclusion must not be reached. A high degree of probability sits, as I said, between those two standards—higher than the former and lower than the latter.

You asked me, Senator McKim, whether that standard of proof is reasonably well known to the law. The answer to your question is, yes, it is. It is sometimes called the Briginshaw standard after a decision of the High Court as long ago as 1938 in a case called Briginshaw v Briginshaw which discussed the terms 'comfortable satisfaction' and 'reasonable satisfaction'. In general that standard reflects the principle that a court or tribunal determining whether a fact has been established to the civil standard does not undertake a mere mechanical comparison of probabilities. So it elevates the level of satisfaction required of the decision maker beyond a mere balancing of probabilities, which is the civil standard. I see you nodding, Senator McKim. I hope I am addressing the question that you have put to me.

That standard, sometimes called the Briginshaw standard, draws attention to the fact that in certain civil proceedings something more is required than a merely probabilistic conclusion but not as much as the criminal standard of 'beyond reasonable doubt'. That standard is a common feature of legislation of this kind in the states and territories dealing with high-risk sex offenders and high-risk violent offenders.

Senator McKim, you said that a United Nations human rights body has criticised this legislation on the grounds of arbitrariness.

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

I was referring to the states—

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

I am sorry. You correct me. It has been observed that detention must not be arbitrary. Of course that is right, Senator McKim. But the process, if you care to inspect the legislation closely, of detention beyond the expiry of a sentence of imprisonment is hardly arbitrary. There is a relatively high standard of proof required, as we have been discussing. It requires the Attorney-General, as the moving party who brings the application, to be satisfied of the level of risk to the community. And it is a judicial determination made by a Supreme Court judge. So none of the features of the process have the characteristic of arbitrariness in relation to the exercise of what is admittedly an unusual power and, I might say, a power that we would expect to see exercised very seldom, just as the power to detain beyond the expiry of a period of imprisonment high-risk violent or sexual offenders is used very sparingly and only in the most extreme cases.

Senator McKim, you quoted an academic, Dr Tulich, who has observed in an article in the UNSW Law Journal the apparent inadequacy of risk assessment tools. Let me address that matter. It is true that this is a relatively new discipline or subdiscipline. It is a relatively new body of technical or perhaps clinical knowledge. But, nevertheless, there is developing expertise that has seen the development of risk assessment tools. I can tell you, Senator, that the Commonwealth has convened an implementation working group with legal, correctional and law enforcement representatives from each jurisdiction to progress all outstanding issues relating to the implementation of the proposed regime, including the development of a risk assessment tool specifically for the purpose of assisting experts under the scheme. Of course one of the categories of evidence which will be before a Supreme Court judge before whom an application for preventative detention is brought will be expert psychological evidence.

The working group to which I referred will analyse existing assessment tools to determine whether an existing tool can be modified or whether new tools need to be developed. The work may result in an existing tool being adopted or a bespoke tool being developed. The existing tools for violent extremist offenders are useful for identifying their degree of radicalisation and what type of intervention approach would be the most appropriate.

The main assessment tool that is utilised in Australia in the countering violent extremism intervention programs is called Radar. Radar was developed by psychologists and criminologists to support interventions to divert people from radicalisation and violent extremism. The working group is looking at the way in which the learnings that have been gleaned from the development of the Radar risk assessment can be applied to the assessment of a person to whom this legislation would apply as they approach the expiry of their term of imprisonment.

Senator McKim, you also raised a point about the scheme applying to preparatory offences. The policy rationale behind the Division 101 offences in the Criminal Code other than the offence of engaging in a terrorist act is the need to criminalise preparatory conduct. The general policy intent underlying the offences is the need to disrupt the preparatory stages of a terrorist attack. That was accepted by the Security Legislation Review Committee—or Sheller committee—and the PJCIS in 2006. It is, if I may say so, inaccurate and facile to regard this as an ordinary exercise in the operation of the criminal law. Once the crime has been committed the system has failed because the terrorism event will have occurred, which is why the focus of the relevant Division 101 of the Criminal Code is on prevention rather than punishment. By focussing on prevention rather than punishment, it criminalises acts done in preparation for the carrying out of the offence. That is the actus reus, as criminal lawyers would say: not the commission of the terrorist act, but the preparation for the terrorist act—just as, in the existing criminal law, conspiracy is a crime and attempt is a crime. A crime is not necessarily only committed when the ultimate event, to which the steps of the criminal are directed, occurs.

Senator Leyonhjelm, you made the observation that the effect of the legislation is to change the length of the sentence. Certainly it is the case that a person who is the subject of an order under this bill will find themselves detained for a longer period of time, but this is not a sentence. Conceptually, it is quite different. This is not a sentence of imprisonment as the punishment for an offence; it is a decision of a judge applying a different standard of proof, applying different considerations and being asked to decide whether it is necessary, in order to keep the community safe, for a very, very unusual power to be exercised in a particular case. So, although that might be the functional effect, it is not the purpose. It would not be jurisdictionally competent for a subsequent court, years later, to extend a sentence—after the appeal period had expired, at least.

Senator Xenophon, you asked me about programs to prevent radicalisation in prisons. It is an important issue that you raise. There are several such programs, particularly in New South Wales and Victoria, where almost all of the terrorism-related offenders in custody are currently undergoing their sentences of imprisonment. Those programs have been developed across jurisdictions through a body called the prisoner management and reintegration working group, and the learnings of the jurisdictions are shared through that group. The Commonwealth is assisting to fund those programs, in particular through the development of the Radicalisation and Extremism Awareness Program, which is one of the programs that addresses the problem you identify. There is a program in New South Wales called the Proactive Integrated Support Model, or PRISM, which the Commonwealth is part-funding over the coming four years, and a program operated within the Victorian system called the Community Integration and Support Program, or CISP. These programs are designed to address the issues you raised, Senator Xenophon. I commend the bill to the Senate.

Photo of Gavin MarshallGavin Marshall (Victoria, Deputy-President) Share this | | Hansard source

The question is that the bill be read a second time.

Bill read a second time.