Senator LUDWIG (7:32 PM) —I rise to speak on the Anti-terrorism Bill 2004. This bill makes changes to four pieces of legislation: the provision in the Crimes Act 1914 allowing the police to detain and question persons being investigated for terrorism offences; the provision in the Crimes (Foreign Incursions and Recruitment) Act 1978 prohibiting persons from engaging in hostile activity in a foreign state; the offence in the Criminal Code Act 1995 relating to membership of, and training with, terrorist organisations; and the provisions in the Proceeds of Crime Act 2002 enabling courts to make orders for the confiscation of `literary proceeds' of criminal activity.

The bill was the subject of an inquiry by the Senate Legal and Constitutional Legislation Committee, which delivered a bipartisan report on 11 May. In the bipartisan report, Liberal and Labor members of the committee recommended several amendments to the bill. On 12 May, the shadow minister for homeland security wrote to the Attorney-General indicating the opposition's acceptance of these recommendations and support for the amendments to implement them. In the letter the opposition urged the Attorney-General to continue the bipartisan approach to the legislation displayed by the Senate committee. Regrettably, whilst the government has accepted the need to make changes to its proposed amendments to the Crimes Act and to the Crimes (Foreign Incursions and Recruitment) Act, it has rejected the recommendations, endorsed by its own senators, for changes to the proposed amendments to the Proceeds of Crime Act.

I will first address the amendments to the Crimes Act 1914 dealing with the police detention of terrorist suspects, which, in Labor's view, are the most significant provisions of the bill as it currently stands. I will make a number of points about these amendments. Prolonged detention of citizens without charge is an extraordinary measure which should only be sanctioned in exceptional circumstances where it is necessary to counter a demonstrated and urgent threat to the safety of the community. Labor has carefully considered the case put forward by police commissioners and in particular by Australian Federal Police Commissioner Keelty in light of the AFP's experience in investigating the Bali terrorist bombings. Their comments followed earlier calls by experts such as Professor George Williams, in October 2002, to review the adequacy of part 1C of the Crimes Act in the new threat environment, as well as moves by the United Kingdom and Canada to strengthen their own laws in this area.

We believe a case has been made by our law enforcement agencies for these amendments to deal with the unique challenges of international terrorism investigations. We are persuaded that these amendments are needed to enable the gathering of evidence that would be admissible in an Australian court. This is not something that can be done using the powers given to ASIO last year, which were conferred for the different purpose of gathering intelligence that may help avert a terrorist attack. That said, we do not see this bill as establishing a precedent for the future extension of these amendments to other areas of law enforcement. We are reassured by the fact that the bill preserves the existing safeguards for suspects detained as part of a police investigation, including the right to silence, the right to seek legal representation and the supervision of extensions of time by a judicial officer.

We believe that, consistent with other antiterrorism legislation passed by this parliament since September 11, it is appropriate to ensure that the operation of these amendments is subject to an independent review after three years. Labor are certainly committed to that review; however, we have not yet heard the same commitment from the government. One of the bipartisan recommendations of both Liberal and Labor members of the Senate committee was that the use of the new `dead time' provision relating to overseas inquiries only be available upon successful application to a judicial officer. We are pleased that, following Labor's representations, the government has agreed to an amendment to this effect. I will address this issue further at the committee stage of the bill.

I turn to the Crimes (Foreign Incursions and Recruitment) Act 1978, the next act subject to amendment by the government. The opposition sees sense in updating the 1978 act following more recent examples of state--sponsored terrorism, such as al-Qaeda in Afghanistan and earlier in the Sudan, and accordingly supports these amendments. I should note in passing that it has been implied, if not stated, by the government that the need for these amendments was in part demonstrated by the case of David Hicks. This suggestion, like all of this government's statements about Mr Hicks and Mr Habib, cannot go unquestioned. Overnight—from last Thursday to Friday—the United States finally particularised its allegations against Mr Hicks, some 2½ years after he was detained. They cover alleged training and other activities with the KLA in Kosovo, LET in Pakistan and al-Qaeda in Afghanistan.

Read in light of these alleged particulars, it is not at all self-evident that the Crimes (Foreign Incursions and Recruitment) Act has no application to Hicks's case, bearing in mind that section 6(3)(aa) of the act, inserted in 1987, does not require armed hostilities to be directed at the government of the foreign state and that not all of Mr Hicks's alleged activities appear to have been with government forces. The government has never made public the legal advice it has received about Hicks, but there is more than a little suspicion that the problem is not so much with the act as with obtaining admissible evidence. With or without these amendments, the application of the act to Hicks is, in our view, not a closed question.

One flaw, identified by Liberal and Labor senators, in the drafting of these amendments was the absence of criteria to guide the exercise of the proposed new power to make regulations prescribing organisations. Again, Labor made representations to the government to rectify this. We are pleased that the government has agreed to move an amendment, which I will also speak to at the committee stage when dealing with that matter.

I now turn to the amendments to the membership and training offences in the Criminal Code Act. Again, the opposition supports these amendments. Self-evidently, the more controversial and complex of these amendments are those to the training offence, as they introduce a modified form of strict liability to an offence which carries a heavy penalty, placing a significant burden on an accused. Again, we have carefully considered this proposal in light of evidence about the extent of the problem of training with terrorist organisations. For example, the ASIO director, Mr Dennis Richardson, stated in his November 2003 report to parliament:

This was not the only statement made in respect of this point. The Australian Federal Police Commissioner, Mick Keelty, told the Senate committee examining this bill:

He did not leave it at that. He went on to say:

You can see that these statements highlight the real concerns of our frontline agencies about Australian involvement in terrorist training. Therefore, on balance, we are satisfied of the need for parliament to strengthen the training offences in the Criminal Code.

Finally, I turn to the amendments to the Proceeds of Crime Act. It should be acknowledged that the Proceeds of Crime Act already covers a substantial portion of literary proceeds that could be derived from terrorist activity. The grave and unique nature of terrorism is already recognised in the act, which excludes terrorism from the statute of limitations applying to all other offences, which, as you know, Acting Deputy President Hutchins, is six years. The residual category of terrorist literary proceeds that would not be covered are, firstly, those derived overseas and transferred to Australia or, secondly, those derived from overseas terrorist activity which predates the enactment of antiterrorism legislation in Australia in mid-2002. We are not opposed to amendments that close these loopholes, although, as Liberal and Labor members of the Senate committee unanimously concluded, these amend-ments do have a retrospective operation. In this respect, the explanatory memorandum, which asserts otherwise, is simply wrong and should be corrected. This government should take the initiative and amend it today.

Labor certainly agrees with the unanimous recommendation of the committee that the independent review mandated by section 327 of the Proceeds of Crime Act should examine the impact of the retrospective operation of these amendments and, in particular, whether they have had implications beyond the area of terrorist literary proceeds.

In considering these amendments, we have had regard to the fact that two key safeguards in the current act are maintained. Firstly, the civil burden remains on the prosecution to prove on the basis of evidence that the person committed a terrorist offence. For example, in the cases that the Howard government plainly has in its cross-hairs—Mr Hicks and Mr Habib—the court is certainly not obliged to recognise any conviction by a Guantanamo Bay military commission as conclusive of this issue. Indeed, a cursory look at the principles of private international law suggests a person could mount a pretty good argument that such a conviction should be treated with scepticism by an Australian court on public policy grounds. Secondly, the court retains the ultimate discretion whether or not to make a literary proceeds order at all, and if it does make such an order, whether to confiscate all or only some of the profits. Under the act the court must take into account a range of factors when determining whether to make an order. Those factors include the nature and purpose of the product or activity from which the proceeds were derived; whether supplying the product or carrying out the activity was in the public interest; and, lastly, the social, cultural or educational value of the product or activity.

In this area, Liberal and Labor members of the Senate committee made bipartisan recommendations for two amendments to the bill: that item 24 of the bill be amended to remove the words `or indirectly', and item 26 of the bill be amended to omit the proposed reference to United States military commissions. Regrettably, the government has chosen not to continue the bipartisan approach of the committee and has refused to amend the bill in this way. Accordingly, Labor will be moving these amendments at the committee stage. If the government fails to support them, we are fully committed to implementing them if elected. I will discuss these issues further during the committee stage of the bill. I am only foreshadowing at this point some of the issues that may be aired during that debate.

Before concluding my remarks in the second reading debate, I should also foreshadow that Labor has announced its support for the amendments to be moved by the government relating to bail and minimum non-parole periods following the Roche and Khazal cases. We recognise these are extraordinary measures but, having considered them closely and the serious offences to which they relate, we believe they are in the national interest and necessary to ensure that the law is more closely aligned with community expectations. Consistent with our existing commitment to ensure the operation of the amendments to the Crimes Act after three years, it almost goes without saying that we will include the proposed amendments relating to bail and non-parole periods in any such review.