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Thursday, 24 June 2004
Page: 31692


Mr ANDREN (3:39 PM) —On the face of it the Anti-terrorism Bill (No. 2) 2004 looks reasonable, indeed necessary, but the devil is in the detail. The member for Wentworth alluded to some areas of concern that he has. I am seeking some clarification to reassure me that innocent people will not get tangled in this net, particularly in relation to part 3, offences relating to foreign travel documents, and schedule 3, associating with terrorist organisations. If people are identified as being under warrant for serious offences or as having been legally ordered to not leave Australia or, indeed, if they are suspected of engaging in actions that will cause harm to others, then it certainly makes sense to prevent those identified people from leaving Australia and disappearing into the anonymity of the world community. The amending of the Australian Security Intelligence Organisation Act 1979 achieves this.

The changes to the Passports Act 1938 are similar to those that already apply to Australian passports and close a loophole that allows a person to leave Australia on a foreign passport, despite the cancellation and seizure of that person's Australian passport on security or law enforcement grounds. The bill also provides redress, in that an application can be made to the Administrative Appeals Tribunal for a review of a decision by the minister to order the surrender of foreign travel documents. I have no problem with this. However, other changes to the Passports Act—in part 3, clauses 18 to 20 of the bill—insert new offences for making false statements, giving false information or providing false documents in relation to foreign travel document applications. These offences also extend to the improper use or possession of a foreign travel document and making, possessing or using false foreign travel documents.

While the intent of these particular changes may be to combat the increasing, well-recognised problem of identity theft and fraud, especially in the current context of an amorphous terrorist threat to the worldwide community, I am worried that innocent people may be caught up in these provisions. It appears that those very people who flee terror and danger, often without bona fide papers, their only belongings having been gathered up in the dead of night, could be entangled in this net. There exist many tyrannical governments, corrupt officials and anarchic situations around the world that in fact necessitate using false travel documents or false information to allow a person to flee and consequently seek to arrive in a place of safety. While a not so small irony exists that such people seeking refuge are in fact already held in imprisonment by our government—as opposed to what should be a briefer mandatory detention for security purposes—I would not want to see their situation further worsened with the threat of a further 10- year imprisonment.

Clauses 18 to 20 create as offences the making of false or misleading statements, the giving of false information and the production of false documents in relation to an application for a travel document. At first this sounds okay. After all, it is prudent to not allow falsity in such important documents, and one assumes these provisions are rightly aimed at people whose actual business is to make money out of false travel documents. The Criminal Code ensures that geographical jurisdiction will only apply where the conduct or the result of the conduct occurs wholly or partly in Australia, unless explicitly stated otherwise in the legislation. As confirmed by the Attorney--General's Department, if a person makes a false or misleading statement in, say, Iraq, to a person in Iraq, and the travel document is issued in Iraq or any other country outside Australia, then that person is not committing an offence under this legislation.

There already exists in the Passport Act anyway the offence of having in one's possession or under one's control within Australia a falsified passport from a foreign country. However, this section, section 9A(1)(f) of the Passports Act is being repealed by this bill and replaced with the provisions in the bill—with the 10-year penalty—and the provisions within clauses 18 to 20 could conceivably apply to asylum seekers who have had to make false or misleading statements, give false or misleading information or produce false or misleading documents when applying for travel documents in the very countries from which they were trying to flee persecution and danger.

The Attorney--General's Department has informed me that, if any part of the result of the conduct constituting the offence occurs in Australia or on an Australian aircraft or ship, then that person falls under the net of this legislation. That is, an asylum seeker who used false or misleading information in their application for travel documents in, say, Iraq or elsewhere could be imprisoned for 10 years, or fined 1,000 penalty units, under the bill, because, if they are fished up by an Australian boat and offer their false or misleading travel documents, those documents or that information is part of the result of their original application for the document—whether that application was made in Iraq, Indonesia or wherever. I would like the minister to correct me if I am wrong.

Further, the defendant bears an evidential burden in relation to these matters under the Criminal Code. While I hope and assume that it is not the intent of the government to further persecute asylum seekers—certainly that is not allowable under the 1951 convention relating to the status of refugees, which, I remind the House, Australia is not only a signatory to but was instrumental in drafting—I would not want to support the possibility of that happening. Certainly the recent history of government action in relation to sad people arriving on leaky boats and requesting protection prior to an election does nothing to encourage confidence that an abuse of these provisions could not occur.

I certainly support the tenor of the amendments proposed earlier by the member for Cunningham but, I understand, withdrawn. They were designed to insert a statutory defence of `reasonable excuse' in relation to clauses 18 to 20. I hope such amendments are considered before this bill passes all processes. Clauses 21 and 22 in part 3 of the bill allow a `reasonable excuse' clause in the application of the legislation. The extension of `reasonable excuse' to the previous three clauses, 18 to 20, would certainly allay my concerns somewhat.

I note that schedule 3 of the bill, association with terrorist organisations—and its penalty of imprisonment for three years—explicitly states under proposed section 102.8 that this does not apply, to the extent that it would infringe any constitutional doctrine of implied freedom of political communication. The EM explains that this means a person can point to evidence suggesting a reasonable possibility that the association was a purely political communication for the purposes of the Constitution, with the example of a journalist interviewing a terrorist given. That journalist would be able to make use of this exception. That obviously begs a few questions about the security of the individuals concerned too. I am a passionate supporter of freedom of speech, but it seems to me that we may be building in possible contradictions around this while there seem to be other areas where innocent—perhaps more innocent, if there is such a thing—people may be caught up in the net of this.

I point out that this bill seems to include also a person such as someone who perhaps had links with the African National Congress during the dark days of apartheid in South Africa. I suggest that, had our terrorist laws existed at that time, the ANC would have been proscribed and young people I know who did knowingly associate with those who had links with that organisation would have been committing an offence that carried with it the penalty of three years imprisonment. Again it begs several questions. These include: what exactly is terrorism and what is freedom fighting, and when does one become the other; how do we differentiate between the two; who could get caught up in the net of this, being so easily branded as terrorists, as we have seen, or potential terrorists, while having very legitimate reasons for seeking asylum? Of course, all these things are exploited by the forces of darkness, who want to hide behind their rights and so on, but there are forces of darkness, believe me, on both sides of this current scenario.

I support schedule 4 of this bill, which amends the Transfer of Prisoners Act 1983 to include `security' as a third ground for transfer between state or territory prisons for federal, state and territory prisoners, as well as for persons charged with and remanded in custody for an offence. The definition of security relates to the protection of Australia and Australians from espionage or politically motivated violence, as well as other forms of harm similarly defined in the ASIO Act. The other two grounds are `transfer for prisoner's welfare' and `transfer for the purposes of trial.'

Under this bill the Attorney--General is provided with the discretion to make a written order for the transfer of a prisoner or remand prisoner imprisoned in a state or territory to another state or territory in the interests of security, but he or she must have written consent to the transfer from all relevant ministers in the states or territories. Under these provisions, the Attorney is also required to make an order for the return transfer of a prisoner or remand prisoner where, after review, it is reasonable to believe there is no longer a basis for the security transfer order or where it is necessary for court proceedings. Obviously one should have no objections to these provisions.

Finally, provisions of the bill in schedule 5 relate to forensic procedure. Their stated aim is to amend the forensic provisions of the Crimes Act. Currently these procedures apply to overseas incidents. As noted in the EM, they establish a framework for a cooperative legislative scheme with states and territories. They are entirely appropriate and easily supported.