Senate debates

Wednesday, 4 August 2021


Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill 2021; Second Reading

3:53 pm

Photo of Jonathon DuniamJonathon Duniam (Tasmania, Liberal Party, Assistant Minister for Forestry and Fisheries) Share this | | Hansard source

I table the explanatory memorandum relating to the bill and I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Australian Government's first priority is to keep our community safe. This Bill provides for the continuation of key counter-terrorism powers that ensure the safety and security of all Australians.

To this end, and consistent with the recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS), this Bill extends the declared areas offence for a further three years, until 7 September 2024.

The Bill will also ensure that key powers available to the Australian Federal Police will continue to be available. The PJCIS is currently reviewing these powers: the control order regime, the preventative detention order regime, and the emergency stop, search and seizure powers in the Crimes Act.

It is critical that these powers do not sunset ahead of the PJCIS' review. Accordingly, the Bill will defer sunsetting to 7 December 2022, to ensure that law enforcement continues to have a range of capabilities to respond to the ongoing threat of a terrorist attack in Australia.

All powers will continue to be subject to robust safeguards and oversight, including by providing for the PJCIS to again review the declared areas offence before their new sunsetting date.

Declared areas

The declared areas offence in section 119.2 of the Criminal Code is an important part of the Australian Government's efforts to stop the flow of foreign fighters. The offence also mitigates the risk that returning foreign fighters pose to Australians.

Where an area is declared by the Minister for Foreign Affairs, it is an offence to enter, or remain in that area without a legitimate reason. A declared area is a place where terrorist organisations are engaging in hostile activity. There are very few legitimate reasons for entering such an area. The offence recognises this by providing a carefully targeted range of exceptions.

Although there are currently no declared areas, these provisions remain a necessary component of our framework in the current threat environment and looking to the future.

Control orders

Control orders under Division 104 of the Criminal Code are an important tool in preventing a terrorist act and managing the risk posed by persons who continue to present a risk to the community.

The provisions allow the Federal Court or the Federal Circuit Court to impose an order which places tailored obligations, prohibitions and restrictions on an individual. The conditions must be reasonably necessary and reasonably appropriate and adapted to protect the public from a terrorist act.

Preventative detention orders

Preventative detention orders under Division 105 of the Criminal Code are another important tool in preventing an imminent terrorist act. A preventative detention order allows a person to be detained without charge, and can only be used where the AFP reasonably suspects an attack could occur within 14 days, or in the aftermath of a terrorist attack to preserve vital evidence.

Crimes Act powers

The emergency stop, search and seizure powers in the Crimes Act ensure that police are able to respond consistently and effectively to a terrorist incident or threat.

The powers allow police to request a person's name, address and other details; they allow police to conduct a search for a terrorism related item and to seize such an item; and they allow police to enter premises without a warrant to prevent a serious and imminent threat to a person's life, health or safety.

These AFP powers have been used sparingly since they were enacted. As at 16 July 2021, 20 control orders have been made since September 2014, when the national terrorism threat level was raised. No preventative detention orders have been made, and no incidents have required the use of the emergency stop, search and seizure powers. Although these powers have not been used to date, this demonstrates that the AFP have been appropriately judicious in exercising these exceptional powers.

Review of Division 105A

This Bill also extends the reporting date for the Independent National Security Legislation Monitor's (the INSLM's) review of Division 105A of the Criminal Code, which provides for continuing detention orders for high risk terrorist offenders.

The INSLM independently reviews the operation, effectiveness and implications of Australia's counter-terrorism and national security laws, ensuring they contain appropriate protections for individual rights, and remain necessary and proportionate.

Extending the INSLM's reporting deadline to as soon as practicable after 7 December 2021 will enable the INSLM to engage in interstate consultations which were disrupted by COVID-19, and provide a greater body of evidence to review the practical operation of Division 105A.

Concluding remarks

The measures in this Bill implement the Government's response to the recommendations of the PJCIS recent declared areas review. The PJCIS has carefully examined this offence and recommended that it be continued. I acknowledge and appreciate the PJCIS' ongoing and valuable role in reviewing intelligence and security powers.

I also value the continuing partnership with States and Territories in our shared efforts to protect the Australian community. The amendments to Part 5.3 of the Criminal Code have been approved by a majority of States and Territories, as required by the Intergovernmental Agreement on Counter-Terrorism Laws.

This Bill provides for the continuation of important counter-terrorism powers that ensure the safety and security of all Australians.

They ensure that Australia's law enforcement agencies continue to be able to manage the evolving national security and threat environment, while protecting individual rights through strong and effective oversight and safeguards.

Ordered that further consideration of the second reading of this bill be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.