Thursday, 1 August 2019
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019; Second Reading
I present the explanatory memorandum and move:
That this bill be now read a second time.
I seek leave to have the second reading speeches incorporated in Hansard.
The speeches read as follows—
COUNTER-TERRORISM LEGISLATION AMENDMENT (2019 MEASURES NO. 1) BILL 2019
SECOND READING SPEECH
The Australian Government is committed to ensuring the safety and protection of the Australian community.
Since September 2014, when the national terrorism threat level was raised to 'Probable', there have been seven terrorist attacks targeting people in Australia and 16 major disruption operations in relation to potential attack planning. 76 people have been convicted of terrorism related offences, and there are currently 25 people before the courts on terrorism related charges. In this prevailing threat environment, it is critical that Australia's counter-terrorism legislative framework remains effective and responsive to the evolving threat of terrorism.
The Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019 continues the important work of protecting our community. It will ensure that there is a presumption against bail and parole for all terrorists and their supporters. It will also make two changes to improve the operation of the continuing detention order (CDO) scheme for high-risk terrorist offenders.
Schedule 1 — Restrictions on bail and parole
Introducing new restrictions on the existing arrangements for bail and parole ensures there is a presumption against bail and parole for persons who have demonstrated support for, or have links to, terrorist activity, which is consistent with the agreement reached by the Council of Australian Governments (COAG).
In line with the COAG agreement, this Bill expands the Commonwealth's existing presumption to include those offenders who are the subject of a control order, or have links with, or have shown support for, terrorist activities. The new presumption against parole similarly covers all of these terrorism-related offenders. This means that offenders who have links with, or have shown support for, terrorist activities will not be released on bail or parole unless they can show that there are exceptional circumstances that would justify their release into the community.
The Bill also addresses issues raised by the Independent National Security Legislation Monitor's (Monitor) inquiry and report into the prosecution and sentencing of children for Commonwealth terrorism offences. This report was tabled on 2 April 2019. A key issue considered in the course of the Monitor's inquiry, and in his report, is ensuring that the rights of children who are being prosecuted and sentenced for terrorist offences are taken into account. The Bill addresses this key issue by including provisions that make it explicit that the best interests of the child must be considered as a primary consideration by the relevant decision maker at the key points in the criminal justice processes of bail, sentencing and parole.
However, given the overriding need to protect the community, the presumptions against bail and parole will apply to terrorism-related offenders who are under the age of 18. The Bill makes it explicit that the protection of the community continues to be the paramount consideration. This is consistent with the existing presumption against bail which already applies to children charged with, or convicted of, a terrorism offence.
This Bill also amends section 19AG of the Crimes Act, which requires the court to fix a non-parole period of at least three quarters of the sentence imposed for a terrorism offence. This applies to adult as well as child offenders.
While this Bill retains the existing application of section 19AG to children, this will be in the form of a presumption rather than a mandatory requirement that will apply unless there are exceptional circumstances to justify a lower non-parole period.
When considering whether exceptional circumstances exist, the court must have regard to the best interests of the child as a primary consideration, with the protection of the community as the paramount consideration.
The revisions in the Bill to section 19AG reflect the need to remain firm in the face of the serious threat posed by terrorist offences whilst ensuring that the circumstances of children who commit terrorist offences are taken into account when fixing the minimum period that they are required to spend in jail for their crimes.
Schedule 2 — Amendments relating to continuing detention orders
Schedule 2 contains two measures to improve the operation of the Commonwealth's CDO scheme for high risk terrorist offenders.
The first measure will amend the CDO scheme to ensure that jailed terrorist offenders who are also serving time for non-terrorist offences remain eligible for consideration for a CDO at the conclusion of their time in prison.
It should not matter whether a terrorist offender's final day of detention is for a terrorist offence or another offence. What matters is the safety of the Australian public, and the Bill will ensure that the community can be protected from terrorist offenders who pose an unacceptable risk to the community of committing a terrorism offence if released from prison.
The second measure brings the options for protecting national security information contained in an application for a CDO into line with the protections available in other proceedings, whether criminal or civil.
At present, the protections for information in a CDO application are different from those available in other proceedings, whether civil or criminal: they only serve to limit what can be disclosed to the public, and do not allow for the full range of protections that a court may order, including under the National Security Information (Criminal and Civil Proceedings) Act 2004.
The Bill will amend these protections to provide that the information given to the terrorist offender is subject to any orders the court makes for the protection of national security information.
It is the courts that oversee the protection of sensitive information, and the courts will retain ultimate decision-making power to determine the appropriate orders to protect sensitive information and the impact of any orders on the fairness of proceedings.
Under the current scheme, a complete copy of a CDO application containing all inculpatory and exculpatory material, no matter how sensitive, must be provided to the terrorist offender. The amendments would allow the Commonwealth to seek protective orders over sensitive inculpatory material to allow it not to be provided to the terrorist offender, or provided in a redacted form. The amendments would also enable the Commonwealth to seek protective orders over sensitive exculpatory material. Where the Commonwealth withholds sensitive exculpatory material, the terrorist offender must be notified and may choose to contest any protective orders. It is important to note that under the proposed amendments any information that the court intends to rely on in a CDO proceeding, whether inculpatory or exculpatory, must still be provided to the offender. It will ultimately be a matter for the court to determine any protective orders, balancing the competing interests of providing the terrorist offender with material relevant to the proceedings, with the prejudice to national security that may result from the disclosure of that material.
This Bill demonstrates the Government's ongoing commitment to protecting the Australian community from terrorists.
To enable the Parliament to give full consideration of this important Bill, the Government is writing to the Parliamentary Joint Committee on Intelligence and Security to ask it to examine this Bill.