Senator GREIG (7:48 PM) —Senator Ludwig was judicious in his repeated use of the term `bipartisan' to describe support for the Anti-terrorism Bill 2004. While it is true that there are two parties in this place which support the legislation, we are of course a multiparty parliament and it would be wrong to conclude that bipartisan support meant unanimous support. It does not. We on the crossbench, certainly we Democrats, oppose this legislation.

Here we are once again debating yet another set of what we argue are flawed antiterrorist initiatives on the part of the government—initiatives which have been the subject of understandable and widespread community opposition and which were strongly criticised in evidence before the Senate's Legal and Constitutional Legislation Committee. We Democrats are committed to keeping Australians safe from terrorism and for this reason have given careful consideration to each of the proposals the government has presented to combat terrorism. Some of these proposals we have supported and some we have not. In each case we have considered whether there is any justification for the new powers being proposed by the government. This has involved looking at, firstly, whether there is a demonstrated deficiency in existing law; secondly, whether there is any evidence to suggest that the new powers will be effective in addressing threats to security; thirdly, whether any infringement of rights and liberties associated with the proposal is vital and necessary in order to protect the safety of Australians; and, finally, whether the government has considered alternative measures that might be more effective or appropriate under the circumstances. Unfortunately, the vast bulk of the government's antiterrorism proposals we believe have failed these tests, even after extensive amendment by the Senate. Accordingly, we have voted against them, although there have been a number of worthy proposals which the Democrats have been willing to support.

The threat of terrorism is real and has serious implications for Australia's security. However, `national security' is also a vague concept which can be relied upon as a blanket justification for increasing powers and winding back the rights and freedoms of individuals. As parliamentarians, we are charged with the responsibility of making laws for the `peace, order and good government of the Commonwealth'. Clearly, this includes a responsibility to ensure that the government has the legislative capacity to protect Australia's national security, but it also includes the very important responsibility to ensure that the fundamental rights and freedoms of Australians are not violated in that process.

I indicate again from the outset that we Democrats strongly oppose the vast majority of the measures within this bill. The bill makes a range of amendments to the Crimes Act, the Crimes (Foreign Incursions and Recruitment) Act, the Criminal Code Act and the Proceeds of Crime Act. It will extend the period for questioning of suspects arrested on terrorism charges by 20 hours—that is, to a maximum of 24 hours—upon application to a judicial officer. It will allow for dead time during questioning for the purpose of obtaining information from other countries in different time zones. It will limit the exemption that currently applies under the Crimes (Foreign Incursions and Recruitment) Act for persons who serve in or with the armed forces of a government of a foreign state by providing that the exemption does not apply to persons who serve in or with a prescribed organisation.

It will remove the requirement that, in order for a person to be charged with an offence under the foreign incursions act, the person must have been in Australia or an Australian citizen or resident during the year preceding the commission of the offence. It will increase the maximum penalty for an offence under the foreign incursions act from 14 to 20 years. It will empower the minister to issue an evidentiary certificate attesting that a group or organisation was not part of the armed forces of a foreign state at any given time. It will create an offence of membership of an organisation that is found by a court to be a terrorist organisation—as opposed to a terrorist organisation prescribed by regulations. It will amend the offence of training with a terrorist organisation to reverse the onus of proof in relation to recklessness.

It will amend the Proceeds of Crime Act so that a person is prohibited from obtaining literary proceeds within Australia or transferring literary benefits to Australia in relation to the commission of a foreign indictable offence. It will expand the definition of `literary proceeds' to include the commercial exploitation of a person's notoriety resulting directly or indirectly from the commission of an indictable offence—for example, this would include notoriety resulting from the detention of a person. It will also expand the definition of `foreign indictable offence' to include an offence triable by a military commission of the United States.

Like most of the government's antiterrorism initiatives, this bill has been the subject of considerable and understandable community criticism not only to the Senate Legal and Constitutional Legislation Committee but also through broader community campaigns and in direct communications with members and senators. In its evidence before the committee, Amnesty International testified that it was very concerned with the bill and that it `could be used to give legislative legitimacy that would otherwise be a contravention of international human rights standards'.

Associate Professor Joo-Cheong Tham made the point that not only are the provisions of this bill concerning but the context in which it is being introduced is particularly disturbing. We now have extensive legislative infrastructure to combat terrorism, based on broad criminal liability, sweeping executive powers and significant departures from established community standards and there is `a grave risk of these exceptions being normalised'.

There are now more than 15 pieces of antiterrorism legislation within Commonwealth law. And the pattern that we see emerging is that, once a piece of legislation has been passed, the government then attempts to increase its powers under that existing legislation. This is obviously a relevant consideration when we are examining legislation such as this, where improvements and safeguards are introduced by the Senate, because experience shows that the government may attempt to remove these safeguards at a later date.

We Democrats are pleased that the government and opposition have chosen to take up some of the recommendations made by the Senate Legal and Constitutional Legislation Committee. It is disappointing, however, that among the government's amendments there are new, regressive measures to reverse the presumption in favour of bail. This is a long-held principle and is closely related to the presumption of innocence. It is founded on the notion that deprivation of liberty should, as far as possible, be tied to conviction for a criminal offence. Individuals charged with a crime are innocent until proven guilty and the presumption in favour of bail reflects this. If a suspected terrorist presented a risk to the community then that would be taken into account by the bail authority, who would be likely to refuse bail. Given this, it is difficult to see why there is any need to reverse the presumption in favour of bail.

We Democrats have a range of other concerns in relation to this bill. Firstly, in relation to the amendments to the Crimes Act 1914, we argue that there is a lack of any compelling justification for an extension of the investigation period in relation to terrorism offences, particularly since no such extension has been considered necessary in relation to other complex, multijurisdictional offences.

The Democrats question the necessity of increasing the investigation period for terrorism offences when ASIO already has extensive detention and questioning powers in relation to terrorism. During debate on the ASIO powers, we noted that there was some ambiguity as to whether the underlying purpose of the powers was intelligence gathering or criminal investigation. Despite attempts by the Democrats to resolve this ambiguity by way of amendment, it is now enshrined in the legislation. For this reason, we are unconvinced by the AFP's argument that the respective regimes have different underlying purposes and safeguards. Once again, I take the opportunity to express the Democrats' concern regarding the broad definition of a terrorist act under Commonwealth antiterrorism legislation and the potential that this creates for individuals who are not terrorists to be charged with terrorism offences.

We are deeply concerned that the bill permits the extended detention of children and Aboriginal and Torres Strait Islanders for more than 20 hours. We note the very real concerns expressed by Amnesty International that this may breach article 37 of the Convention on the Rights of the Child and very probably breaches the recommendations from the royal commission into black deaths in custody.

Additionally, we Democrats believe that the power to grant an extension of time for the investigation period should be restricted to magistrates and should not be vested in justices of the peace, or persons authorised to grant bail. We are also concerned by the potential for unlimited dead time during the investigation period and believe that the bill should set out a maximum period of detention, including dead time.

In relation to the proposed amendments to the Crimes (Foreign Incursions and Recruitment) Act, we Democrats are yet to be convinced that they are necessary, given that the government already has powers to proscribe armed forces engaged in hostilities under the Criminal Code. We take this opportunity once again to reiterate our strong opposition to the proscription regime. Whilst the government must be legislatively equipped to combat the threat of terrorism, we also believe that it should target criminal behaviour, not thought or association.

We are very concerned by the lack of criteria for proscribing organisations under the proposed amendments. It is really quite incredible that the Attorney-General's Department has conceded that the amendments would enable it to proscribe the Scouts if it wanted to. It is for this reason that there is a desperate need to include criteria for proscribing organisations. Like many of the submissions to the committee, the Democrats have concerns regarding the use of ministerial certificates. Given the heavy penalties which apply to offences under the foreign incursions legislation—which, of course, will be increased by this bill—the Democrats believe that the prosecution should be required to present compelling evidence to establish each of the elements of the offence.

In relation to the amendments to the Criminal Code Act, the Democrats' primary concerns relate to the broad and imprecise definitions. In particular, we are concerned by the scope of the definition of a terrorist organisation and the potential for this definition to incorporate legitimate resistance movements. It is also unclear what it means to be a member of an organisation or to have received training from an organisation. For example, would a person be classified as a member of an organisation by virtue of having attended a meeting of that organisation? Unless these terms are more tightly defined, there is a very real risk that the legislation will capture individuals who are not in any way associated with terrorism. The Democrats also oppose the strict liability provision in section 102.5 of the bill. This provision will essentially reverse the onus of proof for recklessness, thereby compromising the presumption of innocence until proven guilty.

In relation to the amendments to the Proceeds of Crime Act, we Democrats have a long record of opposing retrospective legislation. We take the view that one of the functions of the law is to provide certainty to individuals in the ordering of their affairs and the decisions they make. Retrospective changes to the law compromise the ability of individuals to make informed choices about how they live their lives, as they can never be certain that a particular act which is legal at the time will not subsequently be made illegal. Although the retrospective changes to the Proceeds of Crime Act do not give rise to criminal liability, they do have the potential to detrimentally affect the rights of individuals.

The Democrats share the concerns of the Senate Legal and Constitutional Legislation Committee regarding the concept of indirect notoriety. We are also concerned that the test relating to literary proceeds does not require a person to have been convicted of an indictable offence—the court simply needs to be satisfied that they have committed such an offence. We do not see how a court could properly establish that a person has committed an indictable offence other than after a trial in which all the relevant evidence has been presented to the court. Like the legal and constitutional committee, we strongly oppose any recognition of United States military commissions. We have consistently expressed the strongest opposition to the regime at Guantanamo Bay and the use of military commissions to try detainees.

The procedures which will be used in these military commissions are the antithesis of those which apply in criminal proceedings under Australian law. Apart from being completely secretive, the entire proceedings are subject to presidential direction. They have been set in motion as a result of a direction from the President, and if the President disagrees with the ultimate finding of the tribunal then he can simply reverse it. Given the inherent flaws in this process, it will be impossible to trust the verdicts that emerge from these commissions. The Democrats believe it is a huge mistake for the government to in any way recognise or give legitimacy to these commissions.

It will be clear from my remarks that many of the concerns which the Democrats have in relation to this bill will remain even if all the government and opposition amendments are passed. We believe that this bill, like the vast majority of the government's other anti-terrorism initiatives, is so significantly flawed that we cannot bring ourselves to support it. Thus, we will be voting against it.