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Tuesday, 8 November 2016
Page: 2106


Senator JACINTA COLLINS (Victoria) (13:17): I speak in support of the Counter-Terrorism Legislation Amendment (No. 1) Bill 2016 on behalf of the opposition. The Counter-Terrorism Legislation Amendment (No. 1) Bill is the latest in a series of national security bills. Previous reforms have included new and expanded offences, additional and broader powers for law enforcement and intelligence agencies, and new grounds on which dual nationals may lose their Australian citizenship. The bill implements a number of recommendations from the Council of Australian Governments' review of counter-terrorism legislation. The measures in this bill ensure that our police forces are equipped with a useful tool for preventing terrorist attacks—the control order regime.

Australia's national terror threat level is currently at 'probable', meaning that there is credible intelligence indicating individuals or groups have both the intent and the capability to conduct an attack. At the time of the bill's introduction to the Senate earlier this year, estimates indicated there were around 110 Australians fighting or engaged with terrorist groups in Iraq and Syria and 200 providing support or facilitation from Australia. This increase has meant that agencies are gaining experience with powers that have been available since 2005, but were rarely used or not used at all until recently.

Control orders are a useful tool for our police forces. They are reserved for serious cases and have been used very sparingly since first introduced into Australian law in 2005. As of February this year, just six had been issued. A court can issue a control order only if it will substantially help prevent a terrorist attack, or if the person against whom an order is being made has trained or participated in training with a listed terrorist organisation, engaged in a hostile activity in a foreign country or been convicted of a terrorism related offence. Labor believes that our security agencies and national institutions should have the powers and resources they need to keep Australians safe from the threat of terrorism. Labor's commitment to our security agencies and institutions extends to ensuring that resources are available to combat the threat of terrorism, and we will continue to support legislative updates to make sure we can meet future demands.

However, our bipartisan assistance to the government on matters of national security is never a blank cheque. Bipartisanship on national security means that we will support necessary and effective measures to address threats to our nation, but our commitment to bipartisanship does not mean we will support every measure the government proposes. We will advocate for improvements to those measures that we support in line with Labor's values to ensure safety of the community. It is this approach of constructive bipartisanship that we have brought to bear in the debate on this bill. I want to be clear about this: much of the bill is uncontroversial, and we have supported those measures with which we agree. But we have also been critical about some aspects of the bill and have argued hard for improvements.

Labor has worked to improve this bill to get the balance right between giving our security agencies the tools that they need to respond to evolving threats and ensuring the rights of minors are safeguarded. That includes ensuring any young person subject to a control order has the right to be provided with a lawyer to advise and represent them. Accordingly, we will support the government amendment that has been circulated on sheet ZA417. We pursued improvements in the Parliamentary Joint Committee on Intelligence and Security, where Labor members and senators closely scrutinised the bill and heard evidence from security agencies and a range of experts and community groups. We achieved 20 substantial recommendations for improvements to the bill. In negotiations with the government we pursued these improvements on which we have achieved agreement.

To give context to the improvements to this bill achieved by Labor, it is useful to consider the scope of the bill and the original form in which the bill was first introduced into the Senate. The bill was first introduced into the 44th Parliament on 12 November 2015, and it lapsed on prorogation of the parliament before being debated in either house. It updates Australia's counterterrorism legislation in a number of respects, including the extension of the control order scheme to cover minors as young as 14; improves protections for all minors subject to control order applications; introduces a new class of warrants to facilitate the monitoring of compliance with control order conditions; allows national security information not to be fully disclosed to a person who is the subject of a control order where necessary; and allows preventative detention orders to be issued to prevent not only a terrorist attack expected to take place within 14 days but also a terrorist attack that is capable of being carried out and could occur within 14 days. It also removes the ability of retired Family Court judges, as opposed to retired judges of the other federal courts, to issue preventative detention orders; and, finally, introduces a new offence of advocating genocide.

Upon introduction, it was immediately referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report. The committee received submissions and held a public hearing in December 2015, tabling its report on 15 February 2016. The committee made a number of recommendations to change the bill, subject to which the bill should be passed. The key recommendations included: mandating that a young person subject to a control order proceeding be provided with a lawyer; making clear that the best interests of a young person are a primary consideration in any control order proceeding; mandatory reporting to the parliament on the use of national security information in control order proceedings; and legislation for a scheme of special advocates to be introduced by the end of 2016 to ensure that the lawyers are able to advocate for the interests of a person in control order proceedings from which they have been excluded on national security grounds.

The key recommendations also included: improving reporting of the exercise of monitoring powers, including telecommunications interception and surveillance device control order warrants; improving drafting of the threshold conditions for preventative detention orders; and introducing a requirement that, in order to meet the threshold to be convicted of the proposed 'advocating genocide' offence, a person must be reckless as to whether another person might engage in genocide on the basis of their advocacy.

The proposal to lower the minimum age for control orders to 14 years of age raised significant concern for the public when it was formally announced by the government in October 2015. Organisations including the Australian Human Rights Commission and the Law Council of Australia expressed their concern in written submissions to the Parliamentary Joint Committee on Intelligence and Security during the public hearings. Those concerns were shared by the National Children's Commissioner, who also considered control orders have the potential to disrupt children's education and participation in community life, and argued it was preferable to work with communities to divert children from antisocial pathways.

However, Professor Greg Barton argued that control orders could play a legitimate role in diverting young people from a violent extremist path, but they could only be effective if used alongside community based solutions. He said:

Control orders are a temporary measure not a permanent solution, and if not used widely can cause more harm than good. Working with family and community, however, they may just make a vital difference.

Labor believe early intervention and community engagement, working in combination with strong and bipartisan counterterrorism legislation, are all key to preventing vulnerable young Australians being groomed into extremist ideology.

As was noted by ASIO Director-General Duncan Lewis in mid-2015:

We understand we can't arrest our way to success.

If there is indeed a silver bullet to solving the issue of radicalisation, it is in the area of social cohesion.

In her submission to the Parliamentary Joint Committee on Intelligence and Security, Ms Rabea Khan, vice-president of the Muslim Network New South Wales, explained the need to understand the context in which these laws are coming into play and the effects of growing social divisiveness on young people and the reasons for radicalisation. Programs that counter violent extremism need appropriate funding and cohesive narratives, and they need to provide viable alternatives to disenfranchised young Australians, who may be vulnerable to terrorist recruiters. Our agencies must work with families and communities in a number of ways to resist the radicalisation of young people, and Labor accept that control orders are one tool which should be available to them where appropriate.

Obviously, these are very serious measures to impose on a person as young as 14, but, sadly, young people in our community are being targeted for recruitment by extremists. It is an unfortunate reality that people as young as 14 are being targeted for radicalisation by organisations like ISIS. The boy who killed New South Wales Police Force accountant Curtis Cheng in 2015, Farhad Jabar, was 15 years old. Another 15-year-old was charged with conspiracy to conduct an act in preparation for a terrorist act in 2015. The age of criminal responsibility under Australian federal law is generally set at 14 years of age. Labor recognise the need for our anti-terror laws to be periodically updated to keep up with evolving threats, but each change must be treated carefully, particularly where minors are impacted.

To ensure that the bill properly implements Australia's obligations under the United Nations Convention on the Rights of the Child, the Parliamentary Joint Committee on Intelligence and Security recommended that the bill required the best interests of the child to be a primary consideration. The bill includes this requirement and also explicitly provides that a young person has the right to legal representation in control order proceedings. Labor pushed for these amendments to strike a better balance between protecting the rights of young people and keeping all Australians safe.

This bill inserts a new offence into the Criminal Code, carrying a maximum seven-year prison sentence targeting persons who advocate genocide. This would be consistent with the United Nations Convention on the Prevention and Punishment of the Crime of Genocide; however, concerns were raised with the committee that this offence was drafted too broadly and could potentially limit discussion, debate and exploration of terrorism in the news and current affairs reported. Labor pushed for an amendment to insert the fault element of recklessness to the offence, and it is now in the bill.

The bill implements COAG's recommendation that the government give consideration to introducing a special advocate system for control order proceedings, reiterated by the Parliamentary Joint Committee on Intelligence and Security in November 2014 but not implemented in the 2015 bill. This bill now includes amendments to establish such a system in response to recommendations of the Independent National Security Legislation Monitor in January 2016 and the committee in February 2016.

Labor has approached this legislation responsibly. We have offered the government our bipartisan support for measures to ensure the safety and security of Australians and have engaged in constructive processes to ensure that the right balance is struck between this and accountability safeguards. Labor did not offer the government a blank cheque on this or any piece of legislation and we will never do so. We want to make sure that the bill operates as intended and actually serves to protect our security.

On the one hand, Australia is a free society and it must remain this way. We have worked hard to achieve this balance through the committee process and we have kept the need for appropriate safeguards in mind throughout negotiations. We will continue to work together with the government to ensure that our security agencies and national institutions have the powers and resources they need to keep Australians safe from the threat of terrorism.