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Monday, 15 November 2010
Page: 1143


Senator BRANDIS (1:38 PM) —I take this opportunity to state the coalition’s position on these two important bills, the National Security Legislation Amendment Bill 2010 and the Parliamentary Joint Committee on Law Enforcement Bill 2010. On 12 August 2009, the Attorney-General released a discussion paper on proposed reforms to Australia’s counterterrorism and national security legislation. The majority of the amendments proposed in these bills arise from the recommendations of independent and parliamentary reviews of aspects of the national security regime over the past three years. In particular, these are: the Clarke inquiry into the case of Dr Mohamed Haneef, which reported in November 2008; the report of the inquiry by the Parliamentary Joint Committee on Intelligence and Security into the proscription of terrorist organisations in September 2007; the Parliamentary Joint Committee on Intelligence and Security’s report, Review of Security and Counter Terrorism Legislation, in December 2006; as well as the report of the review of sedition laws in Australia by the Australian Law Reform Commission, also in 2006. This bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 17 June. With the exception of two substantive matters, which I will mention in a moment, the committee recommended that the legislation be passed.

The bill proposes amendments to the legislation in four principal areas: firstly, in relation to treason, sedition and terrorism offences; secondly, in relation to powers to investigate terrorism and serious crime; thirdly, the listing and proscription of terrorist organisations; and, fourthly, the protection of national security information in court proceedings. In relation to the first of those matters, the bill proposes that the offence of treason in the Criminal Code be amended by confining the offence to those who owe allegiance to Australia or have voluntarily placed themselves under Australia’s protection, and clarifying that the offence of assisting the enemy refers to material assistance.

The offence of sedition is proposed to be renamed ‘urging violence’, and includes urging the overthrow of the constitutional government and urging interference with parliamentary elections. These provisions will require an intention that force or violence will be used. The renaming of the offence of sedition—which is, as you would know, Mr Acting Deputy President, an ancient crime in the British criminal law—is not intended by the bill to water down the offence, but merely to contemporise the usage in the descriptors of the matters constituting the offence.

As well, a new offence is proposed, of urging the use of force or violence against a group distinguished by race, religion, nationality, national origin or political opinion. There is a lesser sense if the force does not threaten the peace, order and good government of the Commonwealth. The defence of ‘acts done in good faith’ is clarified by making it relevant that acts were done in the context of artistic work, genuine academic or scientific discourse, or in the dissemination of news or current affairs.

The Senate committee recommended that this clarification not contain an element of good faith in itself, and that recommendation has been adopted by the government. In this respect, the opposition is satisfied that the occasionally competing imperatives of protecting freedom of speech—sometimes, freedom of speech vigorously expressed by groups at the margins of society (sometimes, radical groups who are no friends of democracy but whose freedom of speech our democracy nevertheless respects)—on the one hand, and protecting the institutions of the state from direct threat to their integrity or maintenance, on the other hand, has been achieved.

It is proposed to repeal the offences relating to unlawful associations. These are subsumed by the terrorist organisation laws and, therefore, are outmoded.

Amendments to the definition of a terrorist act are proposed to include the United Nations as the target of an act. The definition of harm intended to be caused by a terrorist act is extended to include psychological harm. May I pause there to observe that this is a piece of law reform which has been long in coming. When we think that the word ‘terrorism’ literally means ‘causing terror through the threat or actuality of violence’, terrorism is specifically defined etymologically by reference to a state of mind. The objective terrorists seek to achieve, in the immediate sense, is to cause violence and harm, and sometimes death, to targets. But their broader objective is to cause fear and terror to populations at large, who must live their lives in the constant, gnawing doubt that they, too, may be the victims of a terrorist strike. For that reason, it has always seemed to me that extending the definition of terrorism to include psychological harm is not only appropriate but essential, as it goes to the very state of mind which terrorists seek to create—thereby to disable citizens in the peaceful going about of their ordinary lives.

A new offence of committing a terrorist hoax is proposed to the maximum penalty of imprisonment of 10 years. The offence of advocating the doing of a terrorist act will be amended to provide that the prosecution must establish that there is a substantial risk that it would lead another person to commit a terrorist act. That is not a weakening of the law. It is done to bring it into line with the concept of risk as elsewhere defined in the Criminal Code. As I said earlier, the offence of providing support to terrorist organisations is clarified to mean providing material support.

I turn to the amendments to the Crimes Act dealing with powers to investigate terrorism and serious crime. These arise from recent operational experience, in particular by the Australian Federal Police. The division relating to powers of detention would be separated into two subdivisions to deal with terrorism and non-terrorism offences. In the case of terrorism offences, the maximum length of time that a person can be detained during an investigation period is proposed as seven days. The majority of the Senate committee recommended a three-day limit. The Liberal senators recommended seven days based on evidence from the Australian Federal Police and the Australian Crime Commission. I am pleased to say the government has seen the wisdom of adopting the stricter approach urged by the Liberal senators. The provisions relating to re-entry under an existing search warrant will be amended to permit re-entry within one hour in normal circumstances and re-entry within 12 hours in an emergency situation. In addition, it is proposed that entry without warrant be permitted in emergency situations when investigating terrorism.

I pause there to say the idea of entry without warrant is a departure from traditional British legal principles, which Australia has always held dear. But there are occasions when entry without warrant is justified, in our view, where there is an immediate and credible threat of terrorist conduct which could take place while the warrant is being sought. I think most people would regard the urgent circumstances in which a suspension of the requirement to obtain a warrant is, in this case, justified. It is proposed that there be a right of appeal both for prosecutors and defendants against bail decisions if there are exceptional circumstances. Minor amendments are proposed to provide full listing and proscription of terrorist organisations if the minister is satisfied of the proscribed matters on reasonable grounds. Listings would be reviewed every three years.

Let me finally turn to the amendments to the National Security Information (Criminal and Civil Proceedings) Act 2004. The purpose of that act is to protect information from disclosure in federal criminal proceedings and its civil court proceedings where the disclosure would be likely to prejudice Australia’s national security. Once again, this is an exception to orthodox and traditional legal principles; that is, that justice be disposed of transparently in public courts, which is necessitated by the circumstances that in some criminal proceedings arising from terrorism and terrorism related offences it is necessary to keep national security information confidential. I think that exception is a matter of common sense and speaks for itself, although like all exceptions from orthodox legal and constitutional principles it is an exception which we hope is available sparingly. The act has been invoked some 38 times and the experience informs some relatively minor although lengthy amendments principally to clarify that notification must be made to a party’s legal representatives and to streamline the definition of situations in which disclosure will be permitted. In some situations, answers to questions in court may be made in writing.

Despite this being a lengthy bill, there appear to be few proposals that are genuinely controversial or that demonstrably strengthen or weaken the national security laws to any significant degree. Most of the proposals are procedural while others clarify the applicable legal test. In some cases, which I have dwelt upon in this speech, there are departures from existing legal principles which have been forced upon us by the necessitous circumstances arising from a new and uniquely dangerous threat.

I have considered the amendments to the bill circulated by the Greens. These amendments were not recommended by the Legal and Constitutional Affairs Committee and I foreshadow, with respect to Senator Ludlam, they do not have the coalition’s support. I should mention that the security briefings that have been provided to me indicate some extremely disturbing emerging threats. This is not the time to open any window of opportunity to enable those threats to be actualised.

Finally, I turn to theParliamentary Joint Committee on Law Enforcement Bill 2010. The establishment of that committee was a proposal of the discussion paper on proposed reforms to counterterrorism and national security legislation. This bill was introduced with the National Security Legislation Amendment Bill 2010. The proposed committee will replace and extend the functions of the current Parliamentary Joint Committee on the Australian Crime Commission. The principal extension is the inclusion of the Australian Federal Police under the jurisdiction of this committee. The committee will be asked to examine trends and changes in criminal activities, practices and methods and to report on any desirable changes to the function, structure, powers and procedures of the Australian Crime Commission or the Australian Federal Police. It will also inquire into any question in connection with its functions that is referred to it by either house of the parliament. The coalition does not consider the bill to be controversial. It was referred to the Senate Legal and Constitutional Affairs Committee as a cognate bill with the National Security Legislation Amendment Bill 2010 and the committee unanimously recommended its passage on 17 June 2010. Both bills, amended following the report of the Senate committee, have the coalition’s support and I commend them to the Senate.