ABC Lateline, 16 October 2014

SUBJECT/S: Anti-terrorism legislation

TONY JONES, PRESENTER: A short time ago I spoke to the shadow Attorney-General, Mark Dreyfus, who was in our Melbourne studio.

Mark Dreyfus, thanks for joining us.

MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thanks for having me.

TONY JONES: Does the Opposition intend to simply wave through the foreign fighters' bill without any serious attempts to debate it or amend it?

MARK DREYFUS: On the contrary. And I think it's a bit early to say exactly the position we'll take, but this bill has been in the Intelligence Committee now for some weeks. They've held a couple of days of public hearings and over those days of public hearings and the many submissions that have been received, it's possible to see that there are some serious concerns about the drafting of some of the provisions of this bill. I'd also say, Tony, we didn't just wave through the previous bill; it was the subject of about two years of consultation.

TONY JONES: Well, I mean, you know that that is what your senior colleague Anthony Albanese's essentially saying when he says that the national security bill, the first of them anyway, with these draconian restrictions on the media, was not properly debated.

MARK DREYFUS: I think Anthony was saying and rightly is that we need to give every bill that proposes increasing national security powers really good scrutiny. He was drawing attention to a particular provision about which obviously there's some differences of opinion. I think we got the balance right.

TONY JONES: Which was effectively waved through by the Labor Party and he was expressing concerns about it - that's the point.

MARK DREYFUS:
It was agreed, Tony. It was agreed and we did pass that bill. The next bill is now before the Parliament. As I say, there've been a lot of serious concerns that have been brought forward. I'm looking forward very eagerly to seeing what the Intelligence Committee will have to say about that in its report, which we understand is going to be released tomorrow.

TONY JONES: Alright. Let's go to the proposed changes in the forthcoming foreign fighters' bill. It creates a new offence of "advocating terrorism" with a five-year jail term. Now the legislation defines advocating as a promotion of violence. Do you agree this goes well beyond the existing incitement to violence?

MARK DREYFUS: I think the thing we have to look at here is what's needed in addition to already strict laws that prohibit incitement to violence and prohibit incitement to terrorism. We've already got a law in Australia, very strict laws that prohibiting aiding and abetting or procuring any of those activities and what the Intelligence Committee has been looking at, because there's been a lot of attention paid to this in submissions, is exactly how this will assist in making Australians safer because that's got to be the objective of all these laws.

TONY JONES: Well let me ask you straight out: you referred earlier to possible problems with some of the drafting of the legislation. Where do you see the problems?

MARK DREYFUS: This was one of the provisions where the committee itself, members of the committee, quizzed witnesses appearing before it and a lot of the submissions focused on why there might be a problem in a provision that uses words that don't have a very certain meaning. And words like "promote" and "encourage" are new to this part of the criminal law, unlike the words we've got there now: aiding and abetting and procuring. I think the Government's got a duty to explain to Australians just what is being aimed at here, and clearly, here's an area where we get into the difficult question of what role the criminal law, because this is what we're dealing with here, should play in regulating speech, because again, that's what in provision's aimed at.

TONY JONES: OK. So the current incitement, as we know, requires that an offender actually intends that violence should happen. Under the new law, the proposed new law, a person who is reckless with their words can be accused of advocating terrorism. Does that carry the danger of creating accidental terrorists?

MARK DREYFUS: I think that's a known concept in the criminal law. If you are reckless, you need to know that there's a risk that your actions will have the consequence that's criminalised and recklessness might be something that can be seriously considered. I think that the concern that's been put forward much more so in relation to this provision, Tony, has been focus on the words "promote" and "encourage" and it's really something that the Government's got a duty to explain on. And I think that's something that we can expect to see the committee paying some attention to in the report.

TONY JONES: Yeah, so what do you think those words actually mean and how could they be defined in terms of a criminal act?

MARK DREYFUS: I don't think it's for members of Parliament to be giving directly an opinion on what -

TONY JONES: Well you're not just a member of Parliament; you're the shadow Attorney-General and a renowned QC, so I'm led to believe.

MARK DREYFUS: That's indeed right. And that's why I've opened this comment by saying to you, Tony, that we've got some very clear laws already, long-established concepts of incitement and procuring in the criminal law. That's what our criminal code is presently based on. It's an offence to incite violence, it's an offence to incite an act of terrorism. And what the Government needs to do is establish to the satisfaction of the public, because we need to have public confidence in these laws as well, we need to be sure that these laws are laws which are consistent with Australian values, consistent with our Constitution. And at the moment, as it stands after the couple of days of public hearings, as it stands after the very many submissions that were received, I don't think the Government's yet made it clear just what role these new words are to have.

TONY JONES: So, you would imagine, one would have to think, that there would be serious amendments to those words, to either define them very clearly, and currently they are ill-defined, evidently, or to change them or take them out?

MARK DREYFUS: I think we've got a duty as parliamentarians and it's the same duty the Government shares, Tony, to make sure that our laws are clear, that they are certain, that they are consistent with Australian values, consistent with our Constitution. Those are the measures that we'll be bringing to bear when we look at the committee's report tomorrow and when we go into the round of debate in the Parliament, in both houses of the Parliament, which can't start until the week after next because the Senate is in Senate Estimates next week.

TONY JONES: OK. So, hotheads who post stupid comments in support of ISIS, for example, but who have no intention of inciting anyone else to commit a terrorist act. Now critics argue that someone who does that would be criminalised. That's currently free speech, but under the proposed new law, that would be criminalised. Is that a worry to you?

MARK DREYFUS: It is a concern that we're bringing to bear the criminal law with very, very serious consequences on areas of conduct, on areas of speech which up until now have not been criminalised and I think we have to look very closely at where we draw the line. That's what the debate's about. That's what the public scrutiny that's been given to date, that's what the work of the committee has concentrated on and I think that this debate's going to be progressed by what I'm assuming will be consideration by the Intelligence Committee in the report that we're going to get tomorrow.

TONY JONES: OK. But you as the Shadow Attorney-General, looking at this legislation, see there's a danger of criminalising what is currently free speech. Is that what you're saying?

MARK DREYFUS: I think that's the area that we are in. I think it's one thing to say that there should be civil consequences attaching to particular forms of speech, as we see in a whole range of areas of the law. It's another when we are applying the criminal law with very serious, very heavy penalties to forms of speech that may not have been in any way intended to lead to an act of terrorism. And where we draw the line is the community debate that we need to have. That's what the Government needs to be engaging in as well to satisfy the Australian community that these laws are warranted, to satisfy the Australian community that the line is in fact being drawn in the right place.

TONY JONES: OK, but clearly you personally have concerns - is that what you're telling us tonight?

MARK DREYFUS: Not only do I have concerns, Tony, but very many members of the community have concern, very many community groups, human rights group, legal academics, have put forward concerns and I'd include in that -

TONY JONES: That free speech is in danger in some way as a result of this bill, is that what you're saying?

MARK DREYFUS: We heard from the Human Rights Commission giving evidence to the Intelligence Committee that the Human Rights Commission has concerns. In no sense would I be alone in Australia in expressing these concerns. And I say that -

TONY JONES: So with the way Labor in opposition has treated the national security bills as they've gone through, there is a sense that you would want to wave them through, and the question here is whether if something like this comes up against a fundamental principle like free speech, will you be prepared not to vote for it?

MARK DREYFUS: I take issue with the suggestion that there's been any waving-through of the first bill that's passed through the Parliament in the last sitting period or that there would be any waving-through of this next bill that's now under consideration. I think that the scrutiny that the Intelligence Committee has given to it, and anyone that cares to read the transcript of those public hearings can see the care with which both the Government members of the committee and the Labor members of the committee have taken over the issues that have been raised would not think of this as in any sense waving-through. We're certainly not done with this second bill yet. We're about to get the Intelligence Committee's report tomorrow and I'm very much looking forward to seeing how it examined these issues and to seeing what public debate then comes.

TONY JONES: OK. Well, we know that the Government had a majority in that committee, so you would presumably be relying on a minority position if there were serious concerns.

MARK DREYFUS: Not necessarily. It may be the case that the Government members have agreed that changes need to be made to the bill and that's an appropriate parliamentary response or appropriate parliamentary committee response to evidence that's given, to the submissions that have been received, Tony. Particularly if the evidence was all one way, and on so issues that were raised before the committee, that was pretty much the case.

TONY JONES: Mark Dreyfus, more on this subject obviously once the committee reveals its intentions, its report and presumably we'll speak about this again later. Thank you very much.

MARK DREYFUS: Thank you very much.