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Thursday, 18 March 2010
Page: 2920

Mr McCLELLAND (Attorney-General) (9:15 AM) —I move:

That this bill be now read a second time.


An effective legal framework is fundamental to our ability to address Australia’s security environment.

In December 2008, the government announced its response to a number of independent and bipartisan reviews of national security and counterterrorism legislation. Those reviews included:

  • The Clarke inquiry into the matter of Dr Mohamed Haneef
  • The Parliamentary Joint Committee on Intelligence and Security, Review of security and counterterrorism legislation
  • The Parliamentary Joint Committee on Intelligence and Security, Inquiry into the proscription of ‘terrorist organisations’ under the Australian Criminal Code, and
  • The Australian Law Reform Commission’s review of Australia’s sedition laws.

The National Security Legislation Amendment Bill 2010 implements the government’s responses to these reviews. The government will also be introducing the Parliamentary Joint Committee on Law Enforcement Bill as part of a package of reforms to Australia’s national security legislation.

Broad aims of the Bill

The proposed measures are well considered, balanced and suited to the achievement of a just and secure society.

The proposed amendments included in this package of reforms are designed to give the Australian community confidence that our counterterrorism laws are precise, appropriately tailored and that our law enforcement and security agencies have the investigative tools they need to counter terrorism.

Public consultation

The legislative amendments contained in this bill are the culmination of a close and measured examination of the laws and a public consultation process.

In August 2009, the government released a discussion paper to seek public views on all the legislative measures contained in this bill, as well as the Parliamentary Joint Committee on Law Enforcement Bill, apart from the proposed amendments to the Inspector-General of Intelligence and Security Act.

The discussion paper contained the exposure draft provisions as well as extensive explanatory material in order to provide for meaningful consultation.

The government was encouraged by the level of public participation and submissions received in response to the discussion paper, including from interested members of the public, human rights advisory and advocacy groups, public interest bodies, law societies, legal academics and community interest groups.

The government has taken into account some valuable suggestions made by those who provided feedback on the proposals.

Indeed, the process exemplified the level of consistent, well focused community consultation and responsive participation that will ensure our counterterrorism legislation is properly understood, appropriately framed, meets community needs and expectations and is consistent with community values.

I would like to take this opportunity to outline some of the key amendments contained in this bill.

1. Treason and sedition (urging violence)

As I have already mentioned, the bill implements recommendations made by the Australian Law Reform Commission in its review of sedition laws in Australia.

The government supports the implementation of the Australian Law Reform Commission’s recommendations including repealing outdated provisions that are currently contained in the Crimes Act relating to unlawful associations.

The bill will amend the treason and sedition offences in the Criminal Code in response to recommendations from this review and the reviews by the Parliamentary Joint Committee on Intelligence and Security and the Security Legislation Review Committee.

The name of the sedition offences will be changed to ‘urging violence’ to better reflect the nature of the offences.

It is already an offence to urge force or violence against a group on the basis of race, religion, nationality or political opinion, where the use of the force or violence would threaten the peace, order and good government of the Commonwealth. The bill will expand this offence to also cover urging force or violence on the basis of ‘ethnic’ or ‘national’ origin. The offence will also be expanded so that it applies to the urging of force or violence against an individual, not just a group, and covers the urging of force or violence, even where the use of the force or violence does not threaten the peace, order and good government of the Commonwealth.

2. Part 5.3 measures

The package of reforms contains several amendments to part 5.3 of the Criminal Code.

Amendments will be made to improve the terrorist organisation listings provisions, including extending the duration of listings from two to three years, consistent with a recommendation of the Parliamentary Joint Committee on Intelligence and Security.

This change will be closely monitored to ensure terrorist organisation listings continue to meet the legislative requirements for listing in accordance with the current practice of keeping listed organisations under ongoing review.

The bill will also make miscellaneous amendments to definitional provisions to implement the government’s policy of ensuring equality of same-sex partnerships in Commonwealth legislation.

A majority of the states and territories have agreed to these proposed amendments to part 5.3 of the Criminal Code in accordance with the Inter-governmental Agreement on Counter-Terrorism Laws.

The government appreciates the support of the states and territories which has enabled the government to bring forward these amendments.

3. Part 1C of the Crimes Act

The proposed amendments in the bill will also clarify and improve the practical operation of part 1C of the Crimes Act which sets out the investigation powers of law enforcement officers when a person has been arrested for a Commonwealth offence.

The proposed amendments to part 1C are in direct response to the issues raised in the Clarke inquiry into the Case of Dr Mohamed Haneef.

4. Enhanced police powers to investigate terrorism

The bill also introduces amendments which are designed to provide law enforcement officers with improved capacity to deal with terrorism, while ensuring that these extended powers are balanced by appropriate safeguards.

The bill will amend part 1AA of the Crimes Act to provide police with a power to enter premises without a warrant in emergency circumstances relating to a terrorism offence where there is material that may pose a risk to the health or safety of the public.

This is not a general search warrant power. The provisions are appropriately limited in terms of what police may do once they have entered the premises.

The bill will also modify the existing general search warrant provisions in the Crimes Act so that, in emergency situations, the time available for law enforcement officers to re-enter premises under a search warrant can be extended to 12 hours, or, where authorised by an issuing authority in exceptional circumstances, a longer time not exceeding the life of the warrant.

5. Bail provisions for terrorism offences

Currently, state and territory legislation is relied upon to provide appeal rights to the prosecution or defendant against bail decisions in relation to terrorism and national security offences.

The bill will amend the bail provisions relating to terrorism and serious national security offences in the Crimes Act to include a specific right of appeal for both the prosecution and the defendant against a decision to grant or refuse bail.

This amendment will establish a nationally consistent right of appeal to overcome limitations and inconsistencies under state and territory bail laws.

6. Charter of the United Nations Act 1945

The proposed amendments to the Charter Act of the United Nations Act 1945 will improve the standard for listing a person, entity, asset or class of assets by providing that the Minister for Foreign Affairs must be satisfied ‘on reasonable grounds’ of prescribed matters before they can be listed.

The Charter Act will also be amended to provide for the regular review of listings under the Charter Act.

7. National Security Information (Criminal and Civil Proceedings) Act 2004

The National Security Information (Criminal and Civil Proceedings) Act 2004 provides a legislative framework for dealing with the disclosure, storage and handling of national security information in federal criminal proceedings and civil proceedings.

Since its commencement, the legislation has been invoked in a number of federal criminal matters and one civil proceeding.

While the experiences of these cases have demonstrated that the national security information act is working well in practice, there are several aspects of the act that could be improved.

The proposed amendments are designed to improve the practical operation of the regime, by, for example, clarifying court procedures to ensure processes are flexible and efficient, minimising unnecessary processes and facilitating consensual agreements between the parties about the disclosure of national security information in a proceeding.

8. Inspector-General of Intelligence and Security Act 1986

Currently, the Inspector-General of Intelligence and Security may only examine matters relating to the 6 Australian intelligence community agencies: ASIO, the Australian Secret Intelligence Service, Defence Imagery Geospatial Organisation, Defence Intelligence Organisation, Defence Signals Directorate and Office of National Assessments.

The bill will amend the Inspector-General of Intelligence and Security Act to enable the Inspector-General, on the request of the Prime Minister, to inquire into an intelligence or security matter relating to any Commonwealth agency.

The amendment recognises the increasing cooperation between the intelligence community agencies and other Commonwealth agencies on intelligence and security matters, and will ensure that, in appropriate cases, the Inspector-General can conduct a thorough and robust investigation into an intelligence or security matter.

This is an important step in helping to improve accountability on national security matters.

The amendment is a key part of the government’s response to the report of the inquiry by the Hon. John Clarke QC into the case of Dr Mohamed Haneef.

The Inspector-General of Intelligence and Security Act amendments were not included in the discussion paper. Although these amendments were announced at the same time as the government responses to the reviews, they were initially intended to be taken forward in a separate bill preceding this bill. The other bill has been delayed due to other legislative priorities.

As amendments to this act are an important accountability measure, the government has decided that they be taken forward as part of the National Security Legislation Amendment Bill.

Measures contained in the Discussion Paper which are not being pursued

I should take this opportunity also to point out that some of the measures that were included in the discussion paper that was circulated are not in this bill.

These include proposed amendments to the definition of terrorist act and the proposed new terrorism-based hoax offence. These amendments will require the states to amend their legislation which referred power to the Commonwealth. The government will continue to work closely with the states to progress these measures.

Another measure which was canvassed in the discussion paper but is not being progressed as part of this package of amendments is the proposed humanitarian aid exemption to the providing training to a terrorist organisation offence under section 102.5 of the Criminal Code.

The public consultation process raised some issues about the practical application of the proposed scheme. As the government needs to ensure that any such initiative is workable and properly responsive to aid delivery needs, the government is committed to further consultation with NGOs and aid organisations to determine whether such an exemption scheme is the best solution.

Compliance with international human rights

The Australian government is committed to fulfilling the Australian government’s responsibility to protect Australia, its people and its interests, while instilling confidence that our national security and counterterrorism laws will be exercised in a just, accountable and balanced way.

By ensuring the laws are precise, clearly articulated and properly tailored, the proposed amendments make a real contribution to the fulfilment of this fundamental goal.

Concluding remarks

The measures outlined today are designed to give the Australian community confidence that our law enforcement and security agencies have the tools they need to fight terrorism, while ensuring these laws and powers are effectively framed.

In implementing the various reviews, the government has taken the opportunity to re-examine key aspects of the legal framework to promote greater clarity, bolster existing safeguards and ensure the laws are appropriately accountable in their operation.

The government is confident that this package of reforms delivers strong laws that protect our safety whilst preserving the democratic rights that protect our freedoms, and helps prepare us for the complex national security challenges of the future.

I commend this bill.

Debate (on motion by Mr Wood) adjourned.