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Thursday, 12 August 2004
Page: 26468


Senator GREIG (11:17 AM) —The two bills before us, the Anti-terrorism Bill (No. 2) 2004 and the Anti-terrorism Bill (No. 3) 2004, do a number of things. The first bill I want to address, the Anti-terrorism Bill (No.2), contains characteristics we have seen in previous antiterrorism legislation introduced by the government. It is riddled, we would argue, with imprecise definitions and it contains an increase in unaccountable power, new offences for which no proper justification has been demonstrated and a range of measures which are likely to have a disproportionate impact on Australia's Muslim community.

The Democrats find that the amendments to the Criminal Code Act 1995 are without a doubt the most disturbing amendments contained in this legislation and this was reflected in the evidence to the committee. The proposed new offence of associating with a terrorist organisation is extremely broad, poorly defined and has the potential to be applied in a way that impacts disproportionately on Muslim peoples. The Democrats strongly oppose the introduction of this offence. I received a letter yesterday from Amnesty International. In summary they said, in reflection of their submission:

- the proposed amendment may breach the right to freedom of association.

- there are already provisions in existing legislation that cover providing an organisation with support to conduct a terrorist act. The enactment of the proposed provisions cover conduct that is not directly associated with a `terrorist' act and may punish association for peaceful means.

They go on to argue:

- the definition of being a member of a terrorist organisation is too broad and vague, and that this vagueness is then compounded by provisions to cover the act of associating with a `member'.

These concerns remain. It still remains the case that the right of freedom of association may be breached by the passage of the bill and an innocent person may inadvertently commit an offence and be wrongly imprisoned.

Significantly, the exemptions to the offence involving `close family members' in clause 102.8(4)(a) of the bill do not cover an extended family which might include aunts, uncles and cousins. The committee's recommendations in this regard do not go far enough to address our concerns. Similarly, exemptions in relation to public religious worship in clause 102.8(4)(b) of the bill do not cover social meetings, education and counselling, amongst other activities, which could conceivably be conducted both in the place used for public worship and other places temporarily obtained for such religious worship and ancillary activities. The committee's recommendations do not go far enough to address our concerns.

Exemptions to the offence relating to the provision of humanitarian aid in clause 102.8(4)(c) of the bill and for the purpose of providing legal advice, clause 102.8(d) of the bill, continue to pose the threat of catching innocent activities, such as fundraising for the purpose of affording appropriate legal advice outside the specified exemptions. Furthermore, the evidential burden to make out these exemptions remains with the defendant and not the prosecution. This further erodes safeguards that innocent people will not be caught by this offence and face terms of imprisonment. The committee's recommendations do not adequately address these concerns and, as such, the bill should not be passed.

With regard to amendments to the Transfer of Prisoners Act 1983, the Democrats share the concerns of the Law Council of Australia that these amendments:

... will allow for the transfer of remand prisoners without notice and without regard for the personal circumstances of the detainee, including their prospective distance from family or other support networks.

The Democrats agree that decisions regarding the transfer of remand prisoners should require the approval of a court. We are very concerned that there will be no opportunity for a person affected by such a decision to seek judicial review of that decision. We note and are concerned by the evidence regarding limited consultation in relation to these changes. The Democrats do not support the proposed amendments.

It is interesting to note that there was a news story relevant to this yesterday in my home state of Western Australia. An article by Trevor Robb from the West Australian entitled `Justice Minister slams Federal Government over security cooperation' read:

PERTH, Aug 12 AAP—The West Australian government today accused the federal government and national law enforcement agencies of failing to consult with state authorities over the detention of terrorism suspects.

Justice Minister Michelle Roberts said the Commonwealth had kept WA in the dark and also refused to allow state authorities to test new ways of securing dangerous prisoners.

Ms Roberts said federal law enforcement agencies had failed state counterparts in relation to Jack Roche, who was convicted in June of plotting with al-Qaeda to blow up the Israeli Embassy in Canberra.

“There was a situation in WA a few months back when we were overseeing Australia's number one terrorist prisoner and yet our authorities had literally been kept in the dark and not properly informed by the federal agencies,” Ms Roberts said.

“It was a totally unacceptable situation which could have jeopardised the safety of prison officers, other prisoners and the community.”

Ms Roberts said Canberra did not run any jails in Australia, yet proposed anti-terrorism legislation to allow interference in the management of state prisons.

“The states and territories run the prisons and yet the federal government ignores our years of experience in securing the most dangerous inmates,” she said.

A spokesman for federal justice minister Chris Ellison said there had been full consultation about the new anti-terrorism legislation, including a meeting with all States last December, and there was no intention to meddle in prison systems.

“It is vital that we are involved in the transfer of prisoners because the Australian Federal Police or ASIO may have information which may not be known by state authorities,” he said.

He agreed running jails was a state responsibility but said federal anti-terrorism legislation would not interfere with the way states ran jails or handled high-risk prisoners.

Ms Roberts said WA needed to make plans for housing dangerous prisoners who often had outside contacts with the will and resources to get them out of jail by any means.

She said the WA Government was now considering a high-tech, “ultra security” jail within the grounds of the existing Casuarina prison to handle dangerous prisoners considered at high risk of escaping.

In considering the provisions of Anti-terrorism Bill (No. 3) 2004 the chamber has the benefit of the recent inquiry conducted by the Senate Legal and Constitutional Legislation Committee. Time and time again, the chamber has received enormous assistance from the reports of Senate committees on a variety of legislation. The committee process is a vital part of the Senate's role in scrutinising new legislation and, most importantly, it facilitates the direct participation of the community in the legislative process. As a member of the Senate's legal and constitutional committee, I am very much aware of the significant workload of that committee, particularly in recent months, and I take this opportunity to again acknowledge the outstanding assistance of the secretariat and to thank them for their hard work. It should be noted that the committee report which was tabled on Friday afternoon was actually a report on the Anti-terrorism Bill (No. 2) 2004 in its original form. Following the commencement of the inquiry, the government took three of the schedules from that bill and put them into the new Anti-Terrorism Bill (No. 3) 2004, which we are debating today.

The committee proceeded with its original inquiry, and consequently it covered the provisions of both the Anti-Terrorism Bill (No. 2) 2004 and the Anti-Terrorism Bill (No. 3) 2004. The committee received 95 submissions. As the report notes, the vast majority of those opposed most aspects of the bill. Only one submission supported the bill, and that was from the Australian Federal Police. We Democrats have considered the evidence presented to the committee and we share many of the concerns raised in relation to both antiterrorism bills.

As we know, the bill makes changes to three pieces of legislation. It amends the Passports Act to prevent those who are subject to an arrest warrant in a foreign country, or who are likely to engage in harmful conduct, from leaving Australia on a foreign passport. Specifically, the bill provides that those subject to a warrant for an indictable foreign offence—or who are prevented from travelling by a court order, a law of the Commonwealth or a condition of parole—or who are suspected of engaging in harmful conduct can be prevented from leaving Australia on a foreign passport. The bill also creates new offences in relation to foreign travel documents—for example, making false or misleading statements in relation to foreign travel document applications. These amendments are closely linked to the changes proposed in the Australian Passports Bill 2004. In fact, the provisions in that bill assume the prior passage of this bill.

We Democrats have a number of concerns in relation to these changes, and these concerns were confirmed in the evidence given to us during the Senate committee inquiry. For example, the Public Interest Advocacy Centre questioned whether there was even a need for the new confiscation powers and expressed concern that these powers could be inconsistent with the separation of powers. The Human Rights and Equal Opportunity Commission, HREOC, argued that the new provisions could potentially infringe article 12 of the International Covenant on Civil and Political Rights relating to freedom of movement. The Castan Centre for Human Rights Law argued that an order for the surrender of foreign documents should only be made where a foreign arrest warrant, court order, bail or parole condition relates to a matter which is also a serious offence under Australian law. We Democrats agree. We do not believe that the minister's power should be predicated on the existence of an arrest warrant issued by a foreign court without any consideration of the nature of the laws and the legal system of the foreign country or the reasons for the issue of the warrant. For example, if a woman had been arrested for adultery in a foreign country governed by sharia law, would the minister make an order for the seizure of her travel documents?

This brings me to the concerns raised in relation to the potential impact of the proposed amendments on refugees and asylum seekers. HREOC expressed concern that the new offences relating to the falsification of foreign travel documents may conflict with Australia's obligations under article 31 of the 1951 Convention Relating to the Status of Refugees. Article 31.1 says that states:

... shall not impose penalties, on account of their illegal entry or presence, on refugees who ... enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

As the committee report notes, HREOC argued that the drafters of the 1951 convention envisaged that a refugee fleeing his or her country of origin would rarely be able to meet the requirements for legal entry into a country of refuge.

We Democrats concur with a number of the submissions to the committee that there is a need for a defence of `reasonable excuse' in relation to the foreign travel document offences and that this defence should expressly apply to a person who believes that his or her safety or wellbeing, or that of his or her family, depends on the use or possession of the false or cancelled foreign travel documents. We Democrats also believe that a person should be given an opportunity to challenge the basis of a demand for the surrender of their travel documents. In order to do so, it is vital that the person is provided with the details of any arrest warrant or court order on which the demand is based. However, there is no provision for that in the current bill. We Democrats strongly believe this should be rectified.

Perhaps the most concerning amendments to the Passports Act are those which seek to limit the opportunity for review of a decision by the minister to order the surrender of foreign travel documents. We are concerned that, pursuant to part 4 of the bill, there is no opportunity for judicial review of the minister's decision pursuant to the Administrative Decisions (Judicial Review) Act. In the absence of judicial review, it is particularly concerning that the government has sought to place restrictions on the process of review by the Administrative Appeals Tribunal. In particular, the bill provides that, if the minister certifies that his or her decision involves matters of international relations or criminal intelligence, the AAT will have no choice but to either affirm the minister's decision or remit it to him or her for reconsideration.

That process is entirely unsatisfactory, particularly given the enormous impact of the minister's decision on a person who is subsequently prevented from leaving Australia. It continues the disturbing trend towards more opaque decision making on the basis that decisions relate to security or, in this case, international relations or criminal intelligence. In evidence to the committee, the Attorney-General's Department made the point:

Only where the Minister has certified that a decision involves matters of international relations will provide the Tribunal be restricted to affirming the decision or remitting it to the Minister for consideration.

Of course, that is not the case; that is not true. The AAT will also face this restriction if the minister certifies that the decision involves matters of criminal intelligence. The obvious point that needs to be made here is that, given the various circumstances in which the minister can make an order for the surrender of foreign travel documents, it is clear that in most cases the decision will relate to matters of either international relations or criminal intelligence. This means that in almost all cases in which an order is made for the surrender of documents, the minister will be able to make a certification pursuant to proposed section 23(3), and consequently the AAT will be emasculated and unable to conduct a proper review.

Schedule 2 to the bill makes amendments to the ASIO Act, and in particular it deals with the controversial questioning and detention provisions introduced by the ASIO Legislation Amendment Act 2003. The amendments provide that, if the Director-General of ASIO has sought the Attorney-General's consent to make a request for the issue of a questioning warrant in relation to a person, that person must surrender every passport—whether Australian or foreign—that he or she has in his or her possession or control. We strongly oppose these amendments. In considering the amendments, the Senate should remember that the questioning regime contained in the ASIO Act is not restricted to those suspected of involvement in terrorism; rather, it applies to any person who might have information that is relevant to ASIO.

As we have said previously, this means that ASIO could detain and question innocent Australians just because they happen to go to school with or live next door to someone who is suspected of terrorism. This bill seeks to demand that these innocent Australians surrender their passports to the authorities before the Attorney-General has even consented to the making of a request for the issue of a questioning warrant. Section 34JC of the ASIO Act already provides that a person who is subject to a questioning warrant must surrender his or her passports. These new amendments bring forward that obligation so that it kicks in before a prescribed authority has issued the questioning warrant, before the request has even been made to the prescribed authority and before the Attorney-General has even consented to the making of a request for a questioning warrant. These provisions have incredibly serious consequences for those individuals who might be affected by them. To put it simply, innocent Australians will be required to surrender their passports or face five years in prison, and this will occur in the absence of any judicial or even ministerial scrutiny. We Democrats unequivocally oppose these provisions.

According to the explanatory memorandum, schedule 3 of the bill seeks to amend the Crimes Act to `facilitate effective disaster victim identification in the event that a disaster causing mass casualties (such as a terrorist attack or an aircraft disaster) were to occur'. We support these changes in principle, but we note that they go much further than the government first intimated. They are not restricted to incidents involving mass casualties but they extend to any incident involving a Commonwealth offence or a state offence that has a federal aspect, in which one or more Australians have died. They will also apply to incidents involving the death of an alien, pensioner, Commonwealth employee, resident of a territory or member of the Defence Force, if the minister determines that they should apply.

We Democrats would have much preferred these amendments to be restricted to incidents involving mass casualties; however, we are prepared to support the amendments for three reasons. Firstly, we note that a determination by the minister in these circumstances is disallowable and therefore subject to parliamentary scrutiny. Secondly, the data matching permitted is restricted to the matching of different DNA profiles on the unknown deceased persons index of the database. Thirdly, we note that the federal Privacy Commissioner has expressed support for the amendments. It is for these reasons that we support the amendments contained in schedule 3 of the bill.

However, we are very concerned and angry, although not surprised, at some of the cynical politics that the government has displayed in coupling these amendments with the very controversial amendments to the Passports Act and the ASIO Act. We note that, in his second reading speech on this bill, the Attorney-General indicated that the shadow minister for homeland security had written to him offering to expedite schedule 5 of the Anti-terrorism Bill (No. 2)—in other words, the provisions relating to the identification of the victims of disasters. It appears that the shadow minister for homeland security did not mention the more controversial schedules 1 and 2, yet the Attorney-General included them in this bill. We Democrats will be moving amendments to oppose schedules 1 and 2 of the bill, with a view to expediting the passage of schedule 3. The passage of these amendments is a prerequisite to our support for the bill. Of course, I will speak later on our amendments during the committee stage of the debate.