Wednesday, 4 December 2019
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019; Second Reading
The Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019 is essentially the same bill as the Counter-Terrorism Legislation Amendment Bill 2019, which was tabled and then lapsed at the dissolution of the last parliament. Schedule 1 of the bill will amend provisions relating to restrictions on bail and parole in the Crimes Act to expand the presumption against bail; introduce a presumption against parole; and introduce new provisions dealing specifically with bail and parole for minors. Schedule 2 of the bill will amend the continuing detention order, commonly known as the CDO scheme, in the Criminal Code to expand the eligibility for the scheme and remove, in certain circumstances, the requirement for an individual in relation to whom an application has been made for a CDO to be provided with a complete copy of the application.
In submissions to various parliamentary inquiries into this bill—and the lapsed bill—it was not supported in its current form by any legal, human rights or academic stakeholders. The amendments in this bill expanding the presumption against bail and introducing a presumption against parole have been made in response to a 2017 decision of the Council of Australian Governments. The COAG decision followed an incident in Victoria where a 29-year-old man on parole with a long history of violent offences and drug abuse killed a man, took a woman hostage and sparked a siege in what was regarded as an Islamic State inspired terror attack. It is, however, noted that this man, despite his extensive criminal history, was not on the radar of counterterror police. However, expert stakeholders have argued that the amendments in this bill go beyond what is required to give effect to the COAG decision by, for example, capturing individuals with only a tenuous link to so-called terrorism. Even the COAG decision itself was criticised by expert stakeholders who argued that 'disproportionate sentences will deter people from taking responsibility for their crimes, because they won't plead guilty'. They also argued that studies and evidence from around the world show punitive approaches are counterproductive and that the reforms don't include rehabilitation, deradicalisation and post-release supervision, meaning offenders will still pose a threat when released at the end of their sentence.
So changes to parole and bail laws risk leading to higher incarceration rates without making society any safer. As argued by barrister and human rights advocate Julian Burnside when commenting on the COAG decision which led to the bill:
… a presumption against bail is a bad idea: it means jail before a finding of guilt.
On parole, Julian Burnside argued:
… the politicians should leave that to judges and the parole board. Moves like this are a reminder of the old idea that 'We will take your freedom in order to protect your liberties'.
In its submission to the Parliamentary Joint Committee on Intelligence and Security inquiry into this bill, the Australian Human Rights Commission recommended that the bill not be passed. If the bill were to proceed, the Human Rights Commission recommended that it be amended to protect child offenders on bail or parole and to ensure all information is provided to a respondent to an application for CDO, unless doing so:
… would unacceptably compromise national security or other compelling public interest, or … the respondent is in some alternative way provided with sufficient information adequately to defend the proceedings.
In its submission to the current bill, the AHRC also recommended sections be amended so that presumption against bail and minimum non-parole periods for certain offences would not apply to children. In its report on the lapsed bill, the Parliamentary Joint Committee on Human Rights found sections of the bill breached Australia's obligations under the Convention on the Rights of the Child, warning it would be inconsistent with Australia's obligations to treat other obligations as of equal weight to the obligation to consider the best interest of the child.
Like the Human Rights Commission, the Law Council argued that sections 15AA, presumption against bail, and 19AG, minimum non-parole periods, should be amended so that they do not apply to children. This bill, according to the Law Council, will interfere with the court's ability to hand down sentences to children that are proportionate to their individual circumstances and the nature of the offending conduct, as required under international law, including the Convention on the Rights of the Child, the CRC.
This would also be consistent with recommendation made in the Independent National Security Legislation Monitor's 2018 report to the Prime Minister on The prosecution and sentencing of children for terrorism. It recommended that the protection of the community where a terrorism offence has been charged should be the paramount consideration, and section 15AA of the Crimes Act should be amended to expressly provide for a consideration of the 'best interests of the child in every case as a primary consideration', and that section 19AG of the Crimes Act should be amended such that the provision no longer applies to offenders who are under 18 at the time of offending.
The Law Council also argued that by imposing a non-parole period—that is, three-quarters of the head sentence, otherwise known as the 75 per cent rule—this bill is essentially seeking to legislate an attenuated form of mandatory sentencing that 'interferes with the ability of the judiciary to determine a just penalty which fits the circumstances of the offender and the crime'.
Like the Law Council and the vast majority of legal experts and associations, the Australian Greens have always opposed the use of mandatory sentencing regimes. In its report on this bill, the Senate Standing Committee for the Scrutiny of Bills noted, in relation to the presumption against bail:
… it is a cornerstone of the criminal justice system that a person is presumed innocent until proven guilty, and presumptions against bail (which deny a person their liberty before they have been convicted) test this presumption.
Regarding schedule 2 amendments relating to the continuing detention orders, CDOs, the committee said:
… the Bill also proposes … to bring the information disclosure obligations for a CDO … 'more in line with the procedure in other contexts, such as proceedings for criminal prosecutions'.
The purpose of the CDO is to prevent an offender who has served sentences for terrorism related offences but has not been rehabilitated during that period of incarceration from being released into the community. Given this purpose, Drs Rebecca Ananian-Welsh, Tamara Tulich and Nicola McGarrity and Professor George Williams, whilst not disagreeing with the proposed changes to eligibility for a CDO, submitted that a CDO scheme can only ever be justified if 'a mechanism exists to accurately assess the level of risk that a convicted terrorist poses upon his or her release' and 'effective rehabilitation programs are available for convicted terrorists in jail'. However, these provisions are currently not in place and will not be put in place by this bill. The question is: why not? As such, while Dr Ananian-Welsh raised no obligations or objections to specific changes to CDOs made by this bill, they are opposed to the existence of a continuing detention regime at this present time.
The Senate Standing Committee for the Scrutiny of Bills also has longstanding concerns regarding the CDO scheme. In its report on the lapsed bill it reiterated concerns regarding the proposed extension of the scheme, finding the explanatory materials to the bill did not contain adequate justification for the changes.
The Senate Standing Committee for the Scrutiny of Bills also raised concerns in its report regarding the proposed limitation on an offender's right to receive a complete copy of a CDO application. It found this withholding of information 'may limit an offender's right to a fair hearing as the offender may not have access to all of the relevant information on which the application for the order is made.' This provision, the committee rightly noted, would partially reverse changes made to the bill that introduced CDOs—the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016—to address concerns that offenders would not receive sufficient information ahead of the hearing for an application.
I also wanted to take this opportunity to raise concerns around money laundering. The government have come into this place, and their whole political frame in the last two parliaments, and certainly from what we've seen today with the medevac bill, is that they're strong on crime and they're strong on borders. Yet Australia has been internationally condemned for having some of the laxest anti-money-laundering laws in the world, including for terrorist related offences. This is an opportunity for the Senate to consider what neither the Labor or Liberal governments have done in the last 13 years and introduce laws that strip exemptions that are currently in place for lawyers, accountants and real estate. The Greens have tried to introduce these amendments previously, and they've been voted down.
I wanted to read my second reading amendment to the chamber today. At the end of the motion, we would add:
but the Senate:
(a) notes that:
(i) the explanatory memorandum to the Anti-Money Laundering and Counter-Terrorism Financing Bill 2006 forecast a ‘second tranche’ of legislation that would include real estate agents, accountants and lawyers as designated services under the Act …
That was in 2006. Yet, it's now 2019 and we have never received that legislation. The question is why? Why haven't we tightened our anti-money-laundering laws to be in line with most of the rest of the world? The OECD said Australia was a haven—a haven—for dirty money, for money laundering.
Part (ii) of my amendment says:
… in April 2016, the Government released the statutory review of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 which contained a recommendation that the Government develop options to regulate real estate agents, accountants and lawyers under the Act …
Part (iii) says:
… the Government undertook consultation on the regulation of real estate agents, accountants and lawyers under the Act, which closed in January 2017 …
That was nearly two years ago. The government revisited this nearly two years ago—they did extensive consultations on it—and yet we have still seen no sign of any legislation to remove the exemptions for those three industries.
Part (iv) of my second reading amendment says:
… the Financial Action Task Force's April 2015 Mutual Evaluation Report on Australia's progress in combatting money laundering and terrorist financing stated that Australia is an attractive destination for foreign proceeds of crime, particularly corruption-related proceeds flowing into real estate …
And may I remind the chamber that only three weeks ago Mr Peter Dutton proudly trumpeted that the Federal Police and AUSTRAC had busted a $20 million real estate investment, in my home state of Tasmania, that had been directly linked to foreign money laundering. In this case it was Chinese investors, but my understanding is the only reason we found out about that particular investment in my home state—a significant agricultural property bought with dirty money—was because the Chinese government had provided the information to the Federal Police in an act of cooperation. Otherwise, we would never have known about it. And how many other properties are there, both in suburban areas and in agricultural areas around this country? How many other properties have been subject to the proceeds of crime, through laundered money buying real estate assets through an industry that is exempt from anti-money-laundering laws?
Why is it exempt? I understand that George Brandis, when he was Attorney-General, made it his personal crusade to bring these laws in before he finished his job. But even someone of his position and gravity within the coalition was unable to bring these laws in. I also note that comments made by Peter Dutton have changed their tune in the two weeks since he came out saying that we were now going to go after people using real estate in this country to launder money. Is it because the real estate industry is a significant donor to both the Liberal and the Labor parties? In my opinion, that's most likely the case. There's no other reason for them to be exempt from anti-money-laundering laws when the evidence before us is that money is being laundered.
It's estimated a billion dollars a year goes through Australian real estate. And foreign investment in Australian real estate, be it residential in urban areas or be it agricultural land—and especially agricultural land—is a very sensitive issue and a significant matter of public interest. For Australians, the idea that somehow dirty money from overseas is being used to compete against them when they are seeking to buy their first home or seeking to buy a farm or seeking to build a business is abhorrent. It's already a sensitive issue, and as soon as Australians learn that we have loopholes in our laws that allow laundered money to go into real estate, they'll be up in arms about it, mark my words.
Part (v) of the Greens' second reading amendment says:
… the December 2017 OECD Phase 4 Report on Australia's implementation of the OECD Anti-Bribery Convention recommended that Australia address the risk that the real estate sector could be used to launder the proceeds of foreign bribery …
Part (vi) says:
Australia is one of only six countries in the world not to have included real estate agents, accountants and lawyers as designated services under anti-money laundering and counter-terrorism laws
And part (vii) says:
AUSTRAC estimates that $1 billion in suspicious transactions flowed through the Australian property market from just one country, China, in just one year, 2016
The likelihood is that that's just the tip of the iceberg. Billions and billions of dollars of dirty foreign money is being laundered through Australian real estate.
I accept—because the Greens have looked at drafting legislation on this—that there are some complications around legal privilege for lawyers and accountants. But may I point out that other governments, such as New Zealand's, have recently brought in these laws. It's just a lack of political will in this place that is preventing it from happening. You can't come in here and criticise the CEO of Westpac and Westpac management for $11 billion worth of money laundering through a payment system that they should have known about—and Senator Cormann's words in response to a question I asked him on this in Senate question time last week are ringing loud and clear—if you yourself as a government can't bring in anti-money-laundering laws that allow AUSTRAC to monitor these sectors when we know that those sectors are laundering money.
I don't know if Westpac management knew they were laundering money through their systems. They were warned their systems were vulnerable and were going to be exploited by paedophiles, organised crime and, potentially, terrorists. They knew that, but they didn't fix their systems. But it's worse in this situation because our government knows that money is being laundered through real estate and it is not putting in place the legislation it needs to crack down on that. It is knowingly sticking its head in the sand because it is taking donations from the real estate industry, and billions of dollars of foreign money being laundered through real estate means big fees for real estate agents right around this country.
I don't know how many real estate agents know how much laundered money is used in their transactions. I would be surprised if any of them did. But do you think they would be horrified if they knew? I hope they would. And I certainly want to raise this alarm bell in my own state of Tasmania where we are getting a barrage of foreign investment in our property, farms, agricultural land and businesses. We have a right to know, and our authorities like AUSTRAC have the right to have the resources and the framework and architecture in place that allows them to get information from sectors like accountants, the legal profession, and the real estate profession so they can actually do their job. I urge all senators in here today to support the Greens second reading amendment and, more importantly than that, I ask Senator Cash and the government, after 13 years of inaction on this issue, to bring forward these laws.
I note the Financial Review has written three or four stories on this. There are a couple of good journalists there who have been on this case for some time now. Just this week they editorialised that the Australian government needs to bring in these laws, and, to demonstrate how seriously they're taking the issue, they even gave the Greens a half-page story in the Financial Review, which is a pretty rare occurrence. That's how much this issue means to them, and I believe the people who have contacted my office through LinkedIn and through other outlets in the industries themselves want to see action taken on this. They thank the Greens for standing up in this place and being the ones who are brave enough and are sufficiently free of conflict to bring forward these laws. We will do that, and I urge the Senate to support the Greens second reading amendment. Accordingly, I move:
At the end of the motion, add: ", but the Senate:
(a) notes that:
(i) the explanatory memorandum to the Anti-Money Laundering and Counter-Terrorism Financing Bill 2006 forecast a 'second tranche' of legislation that would include real estate agents, accountants and lawyers as designated services under the Act,
(ii) in April 2016, the Government released the statutory review of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 which contained a recommendation that the Government develop options to regulate real estate agents, accountants and lawyers under the Act,
(iii) the Government undertook consultation on the regulation of real estate agents, accountants and lawyers under the Act, which closed in January 2017,
(iv) the Financial Action Task Force's April 2015 Mutual Evaluation Report on Australia's progress in combatting money laundering and terrorist financing stated that Australia is an attractive destination for foreign proceeds of crime, particularly corruption-related proceeds flowing into real estate,
(v) the December 2017 OECD Phase 4 Report on Australia's implementation of the OECD Anti-Bribery Convention recommended that Australia address the risk that the real estate sector could be used to launder the proceeds of foreign bribery,
(vi) Australia is one of only six countries in the world not to have included real estate agents, accountants and lawyers as designated services under anti-money laundering and counter-terrorism laws,
(vii) AUSTRAC estimates that $1 billion in suspicious transactions flowed through the Australian property market from just one country, China, in just one year, 2016,
(viii) in November 2019, the Financial Action Task Force suspended their evaluation of Australia's progress in combatting money laundering and terrorist financing, and
(ix) the Government's rhetoric about being 'tough on crime' does not match with their failure to legislate the second tranche of anti-money laundering and counter-terrorism financing laws; and
(b) calls on the Government to introduce legislation to include real estate agents, accountants and lawyers as designated services under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006".
I rise to make a second reading speech contribution on behalf of the Labor Party. The Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill would make a number of amendments to the Crimes Act 1914 and the Commonwealth Criminal Code. Schedule 1 would amend the Crimes Act to expand the existing presumption against bail for terrorism offenders to a larger class of persons and also introduce a similar presumption against parole for terrorism offenders. Schedule 2 would amend the Criminal Code to address a perceived gap in the continuing detention order regime and also enable the minister, in an application for a continuing detention order, to withhold exculpatory information from a terrorist offender in the interests of national security, the safety of human sources, and the security operations and public.
The bill is consistent with principles that were agreed by the Council of Australian Governments on 5 October 2017. In particular, it is consistent with the principle that the presumption against bail and parole should apply to categories of persons who have demonstrated support for, or links to, terrorist activity. This bill was referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report. Labor and Liberal members of the committee made one recommendation to improve the bill, and I'm pleased that the government has accepted that recommendation in full.
There was one area of disagreement between Labor and Liberal members of the intelligence committee. The nature of that disagreement is set out in an additional comment to the committee's report. The disagreement relates to section 19AG of the Crimes Act. Under that section, a court is required to fix a non-parole period of three-quarters of the head sentence when sentencing a terrorist offender. In his report on the prosecution and punishment of children for terrorism offences, the Independent National Security Legislation Monitor, James Renwick SC, concluded that, insofar as it currently applies to children, section 19AG does not comply with the Convention on the Rights of the Child. For that reason he recommended that section 19AG of the Crimes Act be amended so that it no longer applies to offenders who were under the age of 18 at the time of offending.
Labor members of the committee were persuaded by Mr Renwick's report and agreed with his recommendation to amend section 19AG so that it no longer applies to children. Liberal members of the committee did not agree with that recommendation. It is, however, important to note that this bill would amend section 19AG of the Crimes Act so that it more closely conforms with the Convention on the Rights of the Child. So, while the bill does not implement Mr Renwick's recommendation in full, it does mark a welcome improvement on the existing position.
Labor understands that the government will be moving an amendment in the Senate to implement the bipartisan recommendation of the Intelligence and Security Committee. Subject to the Senate agreeing to that amendment, Labor supports the passage of this bill.
I might just mention in passing that Senator Whish-Wilson has also moved a second reading amendment to this bill. While Labor does urge the government to consider the various matters that are raised in that second reading amendment—and we think they are matters that are worth considering—we won't be supporting this amendment. My understanding is that it has been tabled very late, and we haven't had the opportunity to give it full consideration. So, on that basis, we will be opposing that second reading amendment.
I thank all senators for their contributions to the debate on the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019. Australians have been shocked and saddened by the recent terrorist attack on innocent members of the public in London on Friday afternoon London time. Australia's deepest sympathies are with the victims and their families. While the bill that we are debating predates this tragic event, sadly, this event once again demonstrates the need for the legislative measures in this bill, which are aimed at protecting the Australian community from terrorist offenders.
Since September 2014, Australia's National Terrorism Threat Level has been set at 'probable'. This means that there is credible intelligence assessed by our security agencies indicating that individuals or groups continue to possess the intent and capability to conduct a terrorist attack in Australia. In this prevailing threat environment, it is critical that Australia's counterterrorism legislative framework remains effective and responsive to the constantly evolving threat of terrorism.
The measures in the bill strengthen the tools that law enforcement and intelligence agencies have to protect the Australian public from the threat of terrorism. This bill implements the commitment this government made at the Council of Australian Governments in the wake of the terrorist attack in Brighton, Victoria, to ensure that, at the federal level, there is a presumption against bail and parole for persons who have demonstrated support for or links to terrorist activity. Indeed, all of the states have subsequently passed their own legislation implementing the principles underpinning these presumptions in relation to state based offences. This bill makes it clear that anyone who has links with or who has 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.
It is a disturbing reality that children are committing terrorist offences. Given that the impact of a child committing a terrorism offence on the victims and the community is no less than that by an adult, the presumptions against bail and parole apply to all offenders, regardless of their age. This bill includes safeguards for children in addition to those already afforded to all offenders under the relevant legislation. This ensures the potential of children for rehabilitation is taken into account at key steps in the justice process without compromising the security of the community.
The bill also makes two important amendments to improve the operation of the High Risk Terrorist Offenders Scheme in division 105A of the Criminal Code that allows for continuing detention orders for high-risk terrorist offenders. The first amendment will address a gap in the scheme to ensure that jailed terrorist offenders who are also serving time for non-terrorism offences remain eligible for a continuing detention order at the expiry of their prison sentences. This amendment will ensure that terrorist offenders remain eligible for a continuing detention order irrespective of whether the final day of their sentence is served for a terrorism offence or for another offence. This amendment supports the protective purpose of the High Risk Terrorist Offenders Scheme by ensuring that the Commonwealth can take effective action against dangerous terrorist offenders who are about to be released into the community.
The second amendment will bring the options for protecting national security information contained in continuing detention order applications into line with the information protections available in other contexts. These enhanced information protections allow the Commonwealth to limit the disclosure of such information to the terrorist offender by relying on protective court orders, such as public interest immunity and orders under the National Security Information (Criminal and Civil Proceedings) Act 2004.
The measures in this bill do not detract from the robust framework of safeguards already in the High Risk Terrorist Offenders Scheme. The measures are reasonable, necessary and proportionate, and ensure that the High Risk Terrorist Offenders Scheme can better achieve its principal objective, which is to protect the community from the threat posed by dangerous terrorists.
On 1 August 2019, the bill was referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report. The advisory report of the committee was tabled on 14 October 2019. The committee recommended the passage of the bill, subject to a recommendation regarding the operation of public interest immunity in relation to continuing detention order applications. In response to this recommendation, the government has amended the bill to clarify that the provisions of the bill do not alter the way in which the ordinary doctrine of public interest immunity would operate in practice. I would like to thank the committee again for its detailed consideration of the bill. The work of the committee was invaluable in ensuring that the measures contained in the bill are necessary, reasonable and proportionate.
I will just address the second reading amendment that has been moved by Senator Whish-Wilson on behalf of the Australian Greens. The government will not be supporting the amendment moved by Senator Whish-Wilson on behalf of the Australian Greens. The Australian government is committed to continually improving Australia's anti-money-laundering and counterterrorism financing laws and to working with industry to ensure that Australia's financial system is hardened against criminals and terrorists without placing undue burden on industry. On 17 October 2019—in other words, recently—the Anti-Money Laundering and Counter-Terrorism Financing and Other Legislation Amendment Bill 2019 was introduced into the Australian parliament. Additional reforms will be introduced into parliament in early 2020 which will further contribute to the government's effort to disrupt and dismantle the criminal business model.
I will also now address two other points that Senator Whish-Wilson raised in talking about the Australian Greens' second reading amendment. The first is in relation to presumptions against bail and parole. I advise the Senate that presumptions against bail and parole are necessary because, when it comes to terrorism—and we are talking about terrorism here—the risks to the community of further offending are so great that it is appropriate the starting position be that bail or parole is refused. This reflects the existing position in relation to terrorism offences, where a presumption against bail already applies. The presumptions will apply to persons who have demonstrated support for or have links to terrorism. I will just repeat that for the benefit of the chamber: the presumptions will apply to persons who have demonstrated support for or have links to terrorism.
The presumptions are not an arbitrary ban against bail or parole for these people. Decision-makers retain the discretion to grant bail or parole if the person can demonstrate that exceptional circumstances justify their release. The defendant also has the option to appeal the court's decision regarding bail. In accordance with the existing parole arrangements for all federal offenders, offenders subject to the presumption against parole would be afforded procedural fairness in relation to their consideration by the Attorney-General for parole. Further decisions of the Attorney-General in relation to parole are reviewable under the Administrative Decisions (Judicial Review) Act 1977.
I will also now address the second issue that was raised by Senator Whish-Wilson when talking about the Australian Greens' second reading amendment—that is, in relation to compliance with the rights of the child and Australia's obligations under the Convention on the Rights of the Child. The government is asking the parliament to amend section 19AG to ensure its compliance with the Convention on the Rights of the Child. In his children's report, the monitor concluded that, in its current form, section 19AG, as it applies to children, is in breach of Australia's obligations under the Convention on the Rights of the Child. Of significant concern to the monitor was that, in its current form, section 19AG precludes any judicial discretion in setting a child's non-parole period and was therefore not consistent with the Convention on the Rights of the Child.
The amendments to section 19AG make it consistent with the monitor's consideration of the presumption against bail found in section 15AA, which the monitor concluded met the obligations under the Convention on the Rights of the Child. The amendments to section 19AG are responsive to the issues raised by the monitor and facilitate discretion when setting a child's non-parole period. In its amended form, section 19AG will fully comply with the Convention on the Rights of the Child and will protect the rights of children who are being prosecuted and sentenced for terrorism offences. The amendment achieves this in a way consistent with the obligations upon government to protect the community from terrorist threats, whilst ensuring that the circumstances of children who commit terrorist offences are taken into account when fixing the minimum period they will spend in jail for their crimes.
Again, I thank my colleagues across this chamber for recognising the need for these important measures. The bill reflects the government's ongoing commitment to protecting the Australian community from terrorists and ensuring our law enforcement and security agencies have the powers they need to respond to the evolving threat of terrorism. I commend the bill to the chamber.