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Thursday, 24 June 2004
Page: 31683


Mr McCLELLAND (2:56 PM) —I rise to speak on the Anti-terrorism Bill (No. 2) 2004. Labor will not be opposing the bill being given a second reading in the House. The bill essentially makes amendments relating to four issues: first, confiscation of foreign travel documents; second, associating with terrorist organisations; third, transfer of prisoners between state and territory prisons on security grounds; and, fourth, use of forensic procedures in disaster victim identification and investigation. The bill was introduced on Thursday morning of last week and we received a briefing on the bill that evening by representatives of the Attorney-General's office and the Attorney-General's Department.

To facilitate public consultation on the bill, the opposition has referred the bill to the Senate Legal and Constitutional Legislation Committee for inquiry and report before parliament next resumes in August. However, we understood that schedule 5 of the bill dealing with the use of forensic procedures in disaster victim identification and investigation follows a recommendation for urgent reform from Mr Tom Sherman AO in the course of the review of the Crimes Amendment Bill 2002, which members will recall was passed after the Bali bombings. In light of this urgency expressed by Mr Sherman—who essentially advised that the offshore victim identification, if you like, was in order, but there were serious questions in respect to domestic identification—I wrote to the Attorney-General after our caucus meeting, which was on Tuesday of this week, indicating that Labor would support the immediate passage of amendments to schedule 5 as a separate bill through the parliament this week. Although it appears at the end of the bill, I might address the background of that schedule before I address the others. In October 2002, as I have indicated, Labor and the government agreed to pass the Crimes Amendment Bill 2002 to enable DNA databases to be used for victim identification and criminal investigation in connection with the Bali bombings, and any other incident of an equally horrific nature that, regrettably, may occur outside Australia, as determined by the minister. The Crimes Amendment Bill 2002 mandated an independent review of these provisions after one year. That review, chaired by the former Australian Government Solicitor and Chair of the National Crime Authority, Tom Sherman, is an ongoing review. However, we understand that Mr Sherman, with his considerable experience, has written to the government expressing concern that existing legislation is inadequate to facilitate disaster victim identification should, regrettably, a mass casualty incident such as a terrorist attack occur within Australia. As Mr Sherman indicated, this is important and, indeed, urgent. We believe it should be addressed before the conclusion of Mr Sherman's review.

Schedule 5 of this bill would amend the Crimes Act to enable the national DNA database to be used for disaster victim identification and criminal investigation in connection with incidents within Australia determined by the minister to be: firstly, suspected to involve the commission of Commonwealth offences, such as terrorism offences, or state offences with a federal aspect, such as offences affecting interstate or international aviation; secondly, suspected to involve victims who are persons with respect to whom the federal parliament can make laws, such as foreign nationals or persons receiving pensions, benefits or other allowances—obviously that would include a substantial proportion of the Australian population—or, thirdly, considered to be or to have created a national emergency.

As I have said, in light of the urgency expressed by Mr Sherman, as soon as caucus had considered the bill on Tuesday morning I informed the Attorney-General that Labor would facilitate immediate passage of the amendments in schedule 5 as a separate bill through the parliament this week. Given that offer, made in writing by the opposition, I was disappointed when the Attorney-General responded not by introducing a bill that included schedule 5 but by adding to those provisions the equivalent of schedules 1 and 2 of the bill we are now considering. While we acknowledge that those measures do appear to have merit, they are not without their complexity and, indeed, some controversy.

As a legislative principle, the opposition believes that except in demonstrated pressing circumstances this parliament should not legislate to create penalties, including terms of imprisonment, without appropriate scrutiny either by a legislative committee such as the Senate Legal and Constitutional Committee or, indeed, at the very least, the Scrutiny of Bills Committee. As it stands, the Senate Legal and Constitutional Committee will report before parliament next resumes and parliament can legislate in respect of those measures on the basis of the advice it obtains from that committee after consultation with members of the public. Nevertheless, in light of the respect we have for Mr Sherman and the significance of his recommendations, we again repeat our offer to the government with respect to passing separate legislation containing the provisions of schedule 5 dealing with, as I have indicated, the issue of DNA identification.

Dealing with the other issues—schedules 1 and 2, to which I briefly referred, dealing with the confiscation of foreign travel documents—I should indicate that schedule 1 would amend the Passports Act 1938 to give Commonwealth agencies the same powers over foreign travel documents as they have over Australian travel documents. We understand the bill arises in part from a DFAT review of the Passports Act, which will eventually result in a division into an Australian passports act and a foreign passports act. Indeed, we understand that work is quite advanced.

This bill would empower competent authorities to request the minister to make an order authorising the confiscation of foreign travel documents in three circumstances: first, where the person is subject to an Australian law enforcement matter; second, where the person is subject to an international law enforcement cooperation matter; or, third, where the person may engage in a specified type of harmful conduct such as terrorism. I should indicate, and as pointed out by the departmental representatives, we are not simply here talking about potential terrorism offences; we are talking about offences that could include, for instance, international paedophile offences, which of course would be condemned by all members of the parliament and which we believe justify measures of this nature.

We note, however, that failing to comply with an order is an offence carrying a maximum penalty of $2,200 or one year imprisonment. Clearly there need to be penalties associated with noncompliance but, again, the introduction of additional criminal laws with penalties including imprisonment, we believe, should require further scrutiny than has been availed to the House as a result of the recent notification of these provisions, as I indicated, on Thursday of last week. We acknowledge that the bill makes decisions of the minister subject to merits review by the AAT, and nothing in the bill empowers an agency to enter premises in the absence of lawful authority, such as, in particular, through the issuing of a warrant.

The bill also extends existing offences concerning Australian passports to foreign travel documents, such as: making false or misleading statements; giving false or misleading information; producing false or misleading documents; improper use or possession of foreign travel documents; or possessing, making or providing false documents. Schedule 2 would amend the ASIO Act 1979 to require persons who have been notified that the Director-General of Security has sought the consent of the Attorney-General for a questioning warrant not to leave the country without the Director-General's permission and, as part of the process, to surrender their passport to the Director-General of Security. Failure to comply with this requirement is an offence with a maximum penalty of five years imprisonment.

Again, we concede that these penalties are of some significance, but, again, we believe introducing penalties including penal servitude of five years justifies further consideration by the Senate Legal and Constitutional Committee. I should add that the Director-General must return any passport as soon as practicable if consent or a warrant is refused. This extends changes to the ASIO questioning regime passed at the end of last year. We understand this amendment has been prompted by concerns held by ASIO that, without these measures, the time taken to apply for a questioning warrant perhaps afforded an opportunity for a person to exit Australia.

The more controversial aspects of the bill involve a proposed new offence or range of offences of associating with terrorist organisations. Schedule 3 of the bill would create a new offence of associating with a terrorist organisation; indeed, a listed terrorist organisation, if members can recall the passage of legislation dealing with the proscription of organisations by way of a listing process undertaken by the Attorney-General. This offence contains a number of elements which the prosecution would be required to prove beyond reasonable doubt. I indicate for those interested in this debate that there is an essential element of intent that must be established as part of the prosecution process. The elements include that on two or more occasions the accused intentionally meets with or communicates with a person who is a member of, or promotes or directs the activities of, a terrorist organisation. A further point of knowledge is that the accused knows that the organisation is a terrorist organisation and the meeting or communication provides support to the terrorist organisation. Further, the accused intends that support to assist the terrorist organisation to expand or to continue to exist and the accused knows that the person is a member of, or a person who promotes or directs the activities of, the terrorist organisation and, as I have indicated, the organisation is listed in Australia as a terrorist organisation. The maximum penalty is less than those which we have previously passed with respect to terrorist offences. The maximum penalty set out in the bill is three years imprisonment. It is noted that a person cannot be convicted twice for separate acts that are less than seven days apart. In other words, acts within that time are regarded as part of the one course of conduct or offence.

The offence also contains a number of exceptions and does not apply if the meeting or communication is with a close family member, defined as a person's spouse, de facto spouse, interestingly a same-sex partner, parent, step-parent, grandparent, child, stepchild, grandchild, brother, sister, stepbrother, stepsister, guardian or carer, and relates only to a matter that could reasonably be regarded as a matter of family or domestic concern. But in that context, and appropriately, the legislation requires that, in determining whether it is communication of that nature, it is necessary to take into account the person's cultural background.

The next exemption is that the meeting or communication is in a place that is being used for public religious worship and takes place in the course of practising a religion. Obviously it would not include, for instance, discussions regarding a potential terrorist attack, which could not sensibly be argued to be taking place in the course of practising a religion. The third exemption is with respect to where the association is only for the purpose of providing aid of a humanitarian nature. This will include, we understand, for example, doctors or pharmacists or where the association is only for the purpose of providing legal advice or legal representation in connection with criminal proceedings or proceedings relating to criminal proceedings, including possible criminal proceedings in the future, or proceedings relating to whether the organisation in question is a terrorist organisation.

While the prosecution bears the legal burden in respect of establishing the offence, an accused seeking to rely on those exemptions which I have summarised bears an evidential burden in relation to those exemptions. This means that, if the accused points to evidence that suggests a reasonable possibility that exemption applies, the burden shifts to the prosecution to prove on the balance of probabilities that the exemption does not apply.

This proposed offence gives rise to a number of issues which it will be appropriate for the Senate committee to consider more fully with the benefit of public submissions. Firstly, there is the question of penalty. The proposed offence carries a maximum penalty of three years. That is less than the maximum penalties applying to existing terrorism offences, which range from 10 to 25 years. However, it is fair to say that the substantial purpose and intent of those terrorism offences that we have introduced through this parliament relate to the perpetration of terrorist acts, whereas these offences, while no doubt equally deserving of public condemnation, are of the nature of supporting or sustaining the organisation as opposed to involvement in the actual perpetration of those terrorist acts. Nonetheless, these offences require appropriate sanction, we believe, from the parliament and law enforcement authorities.

However, in that context we do note that the three-year maximum term of imprisonment is considerably more than the existing maximum penalties for consorting, which the proposed offence resembles and to which the Attorney-General has often referred in public statements. By way of example, the maximum penalties for the offence of consorting are three months in the Northern Territory, six months in New South Wales, Queensland, South Australia, Tasmania and Western Australia, and in Victoria one year for a first offence and two years for a repeat offence. It must be recognised that the proposed offence we are dealing with in this legislation, that of associating with terrorist organisations, differs from traditional consorting offences in that it contains more stringent fault elements and therefore applies to more serious behaviour. But the question of penalty will no doubt be something that the Senate committee will consider in the context of those other precedents.

A second issue is the scope of the exemption for lawyers. The opposition has raised with officials of the Attorney-General's Department whether the exemption needs to be broadened to cover other forms of proceedings which might arise in the context of a terrorism investigation, such as proceedings relating to ASIO questioning warrants, administrative proceedings relating to confiscation of travel documents or civil proceedings seeking a remedy for wrongful use of telecommunications interception or surveillance devices, or damage caused by searches or controlled operations. This will no doubt also be looked at by the Senate committee.

Another matter in which the media always takes an interest is the position of journalists. We note that the proposed offence requires proof that the accused provides support and intends that support to assist a terrorist organisation to expand or continue to exist. Also, one of the exemptions to the offence refers to the implied constitutional freedom of political communication. However, this is also a relevant issue for the committee. It is difficult to see how the public reporting on the activities of an organisation could fall within the definitions of the offence. Nonetheless, I believe that the media is entitled to have that matter clarified beyond any reasonable doubt.

The final issue I will discuss in my contribution is the interaction of this proposed offence with the new bail laws introduced as part of the first Anti-Terrorism Bill 2004 just a few weeks ago. That bill, members will recall, provides that bail will not be granted in relation to a terrorism charge unless exceptional circumstances exist. These offences, as I understand it, although they carry a maximum sentence of three years imprisonment—considerably less than the other offences—would still be part of that presumption against bail regime. Again, whether that was the intention of the department is something that I believe the Senate committee will consider in its deliberation of these matters.

The stated purpose of this measure—that is, the associating offence—is to deter people from associating with persons known to direct, promote or, indeed, be members of the activities of terrorist organisations. That is an important aim. Appropriately, it expresses both public condemnation of these sorts of organisations and, if you like, it is part of a strategy to dry up the sustenance of these organisations. But, when we are talking about offences of this nature, we must tread carefully. Winning the fight against terrorism will require cooperation of the whole of the Australian community. We will not get that cooperation if there is a perception that particular communities are being singled out for oppressive treatment or harassment. We know that feelings of alienation and exclusion cause communities to close ranks and, at worst, push even more people towards extremist responses. I will take the unusual step of quoting the former Attorney-General, the member for Tangney. He wrote a very cogent article in the Herald Sun on 21 August last year which I would commend to members. It was titled, `Our diversity our strength'. Among other things, the former Attorney-General Daryl Williams said:

We must remember our fight is with extremists and fanatics, not with the Muslim faith.

We must not be tempted by the terrorist threat to turn against each other.

That is one quote out of a very commendable article.

Along with many members, I was disturbed by the report of increased discrimination against and vilification of Arab and Muslim Australians since 2001 which was published last week by the acting Race Discrimination Commissioner, Dr Bill Jonas, in Isma—Listen. Indeed, I was saddened to read that the Muslim prayer hall at Annangrove in Sydney was desecrated this week with pigs' heads impaled on stakes, animal blood and offal. Such actions have no place in our society. Not only must such actions against Muslim Australians be condemned; I know many Australian Muslims share similar disdain and revulsion for those who have similarly desecrated Jewish places of worship. It is vital that we bring these voices of reason from all communities forward. Returning to the report of the Human Rights Commissioner, the commissioner concluded:

These experiences are having profound impact on Arab and Muslim Australians. The biggest impacts are a substantial increase in fear, a growing sense of alienation from the wider community and an increasing distrust of authority.

Those are warning bells. Yes, we need to dry up the sustenance of potential terrorist organisations but, equally, we have to guard against alienating sectors of our community so that it makes those who would otherwise not have the propensity to perhaps be more inclined to listen to those extremist points of view. Dr Jonas and his team have undertaken a valuable project and I take the opportunity on behalf of the opposition to thank them for the service they are providing and, indeed, to thank Dr Jonas for his service to the Australian people generally as Aboriginal and Torres Strait Islander Social Justice Commissioner and acting Race Discrimination Commissioner. We wish him all the very best for the future.

I for one do not think we are doing enough as a parliament to address the problems of prejudice and alienation that the commissioner has identified. I strongly urge the government to respond positively to that report and the recommendations it contains. As a start, the government might like to think about adopting the Racial and Religious Hatred Bill that I introduced last year and that has been further advanced by my colleague Nicola Roxon so that we can combat the deliberate incitement of racial or religious hatred with the strongest possible legal actions, whether the incitement is against Australian Jews, Muslims, Christians or any other group in our society. We need to bring forward those from all communities who espouse reason and not fanaticism.

Finally, I will deal with the issue of transfer between state and territory prisons. I note that, in that respect, the state and territory governments expressed concern last year to the Commonwealth that currently legislation does not permit prisoners to be transferred on security grounds—for example, where a suspected terrorist is detained in a place where facilities are inadequate to meet the assessed security risk or where a prisoner may be a witness requiring additional protection. While the measures proposed by the government on their face appear to be appropriate, I am concerned that there has been a lack of consultation with state and territory governments regarding the drafting of these amendments. In particular, state governments, as I understand it, are concerned that the measures proposed in this bill may actually add a layer of unnecessary bureaucracy and hence cause delay in respect of a very significant security issue—namely, the security issues associated with the detention of those persons charged with terrorist offences. I understand that the federal government has not even considered it. Indeed, I understand that it was the states who expressed their concern about the lack of facilities to the federal government, as I have mentioned.

The measures set out in the bill effectively mandate the involvement of the Commonwealth Attorney-General in respect of a situation that may be resolved more expeditiously and efficiently between state agreements regarding the transfer of prisoners. The introduction of these measures without consultation is all the more surprising because I have been informed that the states are less than a week away from formalising an arrangement for transfer between states, based on unified national principles that they have been negotiating.

The concern expressed to me by state governments is that the measures contained in this bill will require the approval of the federal Attorney-General whether or not a prisoner being moved has been charged with a federal or state offence. I have been informed that quite often security concerns mean a rapid response is necessary and prisoners may need to be moved in a matter of hours, not days. I am not sure that the Attorney-General was aware of the advanced state of the measures that have been developed between state governments and the fact that mandating his involvement in those measures may actually cause delay and hence retard the ability to urgently respond to a security situation.

Clearly, any number of urgent situations could arise where a prisoner is a security risk—for instance, in circumstances where they face a security risk because they are a significant witness in a prosecution or in other situations such as where a prison officer or, worse still, a prison officer's family was the subject of a threat. In short, the opposition fully supports the need for there to be mechanisms in place for prisoners to be transferred between jurisdictions on the basis of security requirements. However, it is disappointing that the Attorney-General has not engaged in greater consultation with the states so that a more efficient system can be implemented. Again, this is clearly a matter of whether states deserve to be consulted. In light of the Attorney-General's failure to consult the states, the parliament should require that to be done through the processes of the Senate Legal and Constitutional Committee. An amendment may be necessary and appropriate to preserve the operation of any agreements reached between state governments for the transfer of prisoners, perhaps with a requirement that the Attorney-General be notified when any such transfer has occurred. Again, this is clearly something that would benefit from consideration by the Senate Legal and Constitutional Committee.

In conclusion, the opposition will not oppose giving the bill a second reading in the House. I have indicated that we believe the bill would benefit from public examination by a Senate committee. In the meantime, we repeat our offer to facilitate the passage of schedule 5 through the parliament this week. Regrettably the government has not accept that offer, but again we put it on the table should the government decide to accept that in what we hope are the closing hours of this parliament.