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Thursday, 24 June 2004
Page: 31702


Mr RUDDOCK (Attorney-General) (4:30 PM) —I thank the honourable members for Barton, Wentworth, Calare, Kooyong and Flinders for their contributions in this debate. I will endeavour to deal with the points raised, and constructively, because it is important to recognise that this bill is a further contribution to the development and consolidation of counter-terrorism laws that are essential to deal with the scourge of terrorism that we are confronted with—and we need to deal with it in a determined way.

The Anti-terrorism Bill (No. 2) 2004 reflects the reality that, in achieving justice, the safety and integrity of our society and its institutions must be ensured. Security is not an anathema to freedom and liberties. I might say, if you read the Universal Declaration of Human Rights, it gives primacy, amongst other matters, to the responsibility of governments to secure a person's right to life—a person's entitlement to live in a situation of safety and security. Of course that has to be weighed up with the other values that we see as important, but I often like to point out to people that the right to life and safety often restricts where we can go. We do not allow people to drive on the same side of the road in different directions, because we know that to give people a freedom of choice about where they might go on the road could in fact lead to the loss of life.

In this bill we are dealing with people's right to association. The right to association is very important, and it is a freedom. But, if that freedom of association leads to some people being able to come together for the purpose of undertaking the support of a terrorist organisation, you have to weigh up whether or not that freedom of association is appropriate in that instance. It is important—and I am not sure that honourable members often understand this—that the nature of our laws dealing with terrorism at the moment deal essentially with the planning of a terrorist act. That is the principal range of offences. Whether you look at raising money, at training or at membership, it is in relation to an organisation that is planning a terrorist act.

We now recognise that there are terrorist organisations about which we might not necessarily be able to prove that they are planning a terrorist act here or further afield, but they are nevertheless proscribed terrorist organisations. It is a question of whether or not people coming together and associating with organisations that are involved in those sorts of activities are giving succour and support to them—helping them to grow—so that they can further their aims.

It is in that context that we are seeking to create a new offence. It is a difficult offence—I recognise that. It is an issue that is being looked at not only here but abroad in, for instance, the United Kingdom, where they have perhaps not the same level of knowledge about the nature of the people in their own society because they have much more open borders than we have. They nevertheless are very conscious that they have people who can be coming together, associating and creating for them an enormous sense of vulnerability. It is in that situation where I saw a need—and my colleagues concur in relation to this and the government is bringing forward legislation—to create a new offence. It is not an offence that carries the same level of penalty as many of the other terrorist offences, but it complements those that we have.

I think it is important that people recognise that, as we continue to deal with the war on terror, security is absolutely an essential component in order to protect our rights and freedoms. And this is being done in accordance with the right that we often support—the right to the rule of law and the protection of the rule of law. What we are seeking to do is to legislate—a democratically elected government legislating properly to provide for the security of its own people. That is what this bill seeks to achieve. I thank the honourable member for Flinders because I think in his very balanced presentation today he brought out the nature of the threat that we are facing and those matters that we need to deal with.

The fact is that terrorist organisations do depend upon contact and integration with communities in order to survive and expand. This bill seeks to cut off this source of support from the organisations that engage in acts of terror from behind the veil of the broader community by making illegal association through which that support is gained. The bill also recognises the continuing risk a person in custody may pose to Australia's security. Where a security risk exists, the bill will enable the transfer between states for federal, state and territory prisoners and remand prisoners. Security transfer orders will be necessary and will involve a balancing of the interests of the administration of justice, as well as the prisoner's welfare, against the interests of security. These amendments are necessary to ensure that any threat to our security can be managed wherever it arises.

I understand this bill has already been referred to the Senate Legal and Constitutional Legislation Committee. Obviously I will receive the views of the committee in relation to these important matters within their timing, but I would encourage them to deal with these issues as matters of urgency.

I will be moving amendments to remove the provisions of this bill dealing with foreign travel documents, persons in relation to whom ASIO has questioning warrants or warrants are being sought and forensic procedures. These measures are now the subject of a separate bill, the Anti-terrorism Bill (No. 3) 2004, which I introduced and dealt with yesterday. The purpose of excising those amendments is to ensure that these very important matters are processed to enactment in as timely a manner as possible. I do hope that I can have the cooperation of the opposition in relation to the range of matters included in the Anti-terrorism Bill (No. 3) 2004. I think they are of a relatively uncontroversial nature. I would expect the amendments in Anti-terrorism Bill (No. 3) 2004 to be passed without delay of protracted debate. For nearly three years the Australian government has worked tirelessly in reviewing and developing the arrangements in response to the modern threat to make sure that all that can be done is done and as quickly as possible. I am pleased with what we have achieved so far but we are continuing to identify those areas in which our laws require refinement and more comprehensive treatment and to act without hesitation to ensure that where we have identified weaknesses they are dealt with.

I will take up a number of the points made by my colleagues. The member for Barton raised particularly the issue of transfer of prisoners and asked why the states were not consulted. As I understand it, the states in fact expressed to us a desire about the need to transfer prisoners on security grounds, and it was on the basis that we wanted to be able to respond as quickly as possible to their urging that we brought this legislation forward. The amendments cover prisoners or remand prisoners who have been convicted or charged with Commonwealth, state or territory offences. The Australian government has responsibility for security issues. The definition of `security' is the same as contained in the Australian Security Intelligence Organisation Act and includes protection of the Commonwealth, states and territories from politically motivated violence. We think it is vital that federal agencies such as the Australian Federal Police and ASIO are consulted in such transfers and that the agencies which would have intelligence that might directly or indirectly affect a transfer can have those matters brought to the notice of the Commonwealth Attorney.

We certainly do not want these matters, particularly the procedures, to deny a rapid dealing with these issues. The amendments require that a security transfer order must be made in writing. That enables the Attorney to consider all available advice. The consent in writing is also required from the sending or receiving state or territory minister except where a remand prisoner is transferred from trial. There is a need to record the decision due to the impact these orders can have on a prisoner or remand prisoner. I am confident that where urgent transfer orders are required it will be possible to deal with those issues quickly. Effective administrative procedures will be developed in consultation with the states and territories to achieve that outcome. I simply make the point that we were wanting to deal with this issue quickly. We believe that we can accommodate state wishes. Obviously we would welcome their communicating with us, as they did initially, any concerns that they have. But we see a need for urgency in relation to this.

The member for Wentworth expressed the need for clarity in drafting and said that the elements might be difficult to prove in relation to this matter. I think that is right and I think it is important to recognise what those elements are, because, in relation to the association offence, I think it is going to be very difficult to achieve a successful prosecution. The member for Kooyong was suggesting that it might be relatively easy. But, when you look at what is contained in schedule 3, adding to the end of subdivision B of division 102 of the Criminal Code a new section 102.8, associating with terrorist organisations, to commit an offence a person on two or more occasions must intentionally associate with another person who is a member of, or a person who promotes or directs the activities of, a terrorist organisation. The person must know that the organisation is a terrorist organisation and he must know that the association provides support to that organisation. The person must intend that that support assist the organisation to expand or continue to exist, and the person must know that the other person is a member of, or a person who promotes or directs the activities of, that organisation. Those elements of knowledge that the Crown must prove are very considerable, and I simply say to the member for Calare and the member for Kooyong that the Director of Public Prosecutions in this country takes his role very seriously. He sees it as being important not to pursue matters frivolously but to do so where there are substantial issues and where the evidence exists to sustain the particular conviction.

The member for Wentworth was concerned that in relation to these matters we should make it very clear that there is no intention for our terrorism laws to target any religious, social or political group within our community. I want to make it clear that this legislation is not seeking to target such groups. The legislation is squarely aimed at those people whose activities or intentions expose our community or our population to serious risk, the risk of terrorism. That is why we have been careful to craft the legislation to include objective criteria and appropriate safeguards. We want to ensure that only those people who intend to commit a terrorist act or be a member of or train or otherwise associate with a terrorist organisation are punished in accordance with law. I know that members of the Muslim community are as concerned about terrorist activities as anybody else. Moderate Muslims have been very adversely affected by terrorism in ways which I regard as being abhorrent. Terrorists have hijacked and killed peace-loving people within our regions many of whom were Muslims.

I think it is important to recognise that, as far as this matter is concerned, the government will continue to make clear its intention. It will make it clear that, in relation to the freedoms of religion and association that our society respects, we do not want to see people vilified in any way because of their religion or their associations. But, where we are dealing with terrorists, terrorist organisations and the promotion of those, we see those matters as very different.

The member for Calare raised some issues in relation to travel documents. I simply make the point that there is no intention to adversely impact upon people who are refugees. We recognise that those who are in Australia and have claims that they have a need for protection should be able to bring those forward. However, we certainly do want to deal with people who are involved in obtaining travel documentation inappropriately, whether it is Australian travel documentation or travel documentation of any other country. These provisions are to deal with that. But I am sure that, in relation to those who are making asylum claims legitimately because they are refugees, regard would be had to our obligations in relation to the refugee convention where those people are involved.

The member for Kooyong acknowledged the need for balance in relation to the matters that we are dealing with, and I reinforce that. The member for Kooyong is always very eloquent in the way in which he expresses his views. Noting the purpose of the legislation that was earlier dealt with as well as this legislation, of course, the objective here, as before, is to investigate, deter and, if necessary, punish the most offensive crime of terrorism without compromising the core values which we hold most dear—that is, the rule of law, the separation of powers and, above all, democracy. That is why we must ensure that our offences are crafted in a way that set clear and objective criteria. A person cannot innocently commit a terrorism offence. They must possess the requisite intention. In the case of the proposed association offence, that intention, as I outlined earlier, is the intention of providing support to assist a terrorist organisation to expand or continue to exist.

In developing the legislation, my department has considered the types of scenarios set out by the member for Kooyong in order to prevent a case where a person such as a journalist is inadvertently caught by this offence. To avoid that situation, the criteria were carefully crafted and appropriate exemptions were put in place. A person must intentionally associate with a member of a terrorist organisation. A person must know that the organisation is a terrorist organisation. A person must intend that support to assist the organisation to expand and continue to exist. Simply sharing a podium with a member of a terrorist organisation would not be sufficient to satisfy the criteria.

The member for Kooyong set out the exceptions that might apply in relation to an association offence. Again, this is a safeguard designed to make clear the circumstances that this legislation is intended not to capture. It is not intended to apply to a mother who provides a son with meals or free rent in a home, even if a son is a member of a terrorist organisation. It is not intended to apply to a journalist who simply reports the activities of a terrorist organisation after meeting with a member of an organisation for the purposes of educating himself or informing the public. It is not intended to apply to humanitarian workers such as doctors who provide medical assistance to people who may be injured.

I simply make these points because I think it is important to recognise that we have endeavoured to provide that balance. That does not mean to say that I will not look at any suggestions that come forward for amendments. I think I have demonstrated time and again that I am prepared to respond to sensible comments and, where they are made, to take them into account. But I certainly do not want to see a situation where the willingness to do that unduly extends the time for debate and discussion so that important reforms dealing with terrorist issues are unreasonably delayed. I commend the bill to House.

Question agreed to.

Bill read as second time.