Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, Australian Parliament House, 30 October 2014

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (‘Foreign Fighters Bill’) is the second national security Bill brought forward by the Government in this Parliament.

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (‘Foreign Fighters Bill’) is the second national security Bill brought forward by the Government in this Parliament.

 

The first, the National Security Legislation Amendment (No 1) Bill, was passed through the Parliament on 1 October. Labor insisted on a full review of that Bill by the Parliamentary Joint Committee on Intelligence and Security (‘the Intelligence Committee’). We ultimately supported the Bill, subject to the Government implementing each of the Committee’s recommendations for improvements to that Bill.

 

The Foreign Fighters Bill is of a very different nature to the first Bill. When I spoke on the second reading of that first Bill, I said that it was comprised of largely uncontroversial, though worthy, updates and adjustments to intelligence legislation. Though in public debate those changes were necessarily caught up in concern over current events in Iraq and Syria, the reforms in the Bill were not formulated to respond to those unfolding events.

 

To the contrary, the measures in the first Bill were based largely on the work of initiated under the previous Labor Government, including an extensive inquiry by the Intelligence Committee that was tabled in June last year, long before the current spasm of terrorist violence.  The measures in the first Bill updated and adjusted the architecture of our national security organisations in a broad way so that our agencies are better able to meet demands on them well into the future. Those measures are intended to endure well after the current threats have faded.

 

The Foreign Fighters Bill contains a very different set of amendments to our national security laws. I want to emphasise this point.

 

The Foreign Fighters Bill directly addresses current threats to Australian security which have arisen out of present circumstances in Syria and Iraq. Where the first Bill focused on the structure of our national security institutions in the long view, this Bill focuses on conferring new powers and creating new criminal offences that the Government believes are most relevant to addressing the immediate threat of  Australians joining with terrorist groups overseas, and potentially returning to Australia to carry out terrorist attacks here.

 

Labor offered the Government its constructive bipartisan support for the first Bill. And we have offered constructive bipartisan support for this Bill.

 

As the Leader of the Opposition Bill Shorten has said on many occasions now, 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 and we will support the Government in providing those powers and resources.

 

However, our bipartisan assistance to the Government on matters of national security is never a blank cheque. Bipartisanship on national security means that we share the Government’s assessment of the current threat and that we will support necessary and effective measures to address that threat.

 

As an Opposition, it means that we will conduct our side of the debate and our negotiations with the Government in a constructive fashion. But that does not mean we cannot be a constructive critic. It does not mean we will support every measure the Government proposes. It does not mean that we will not advocate for improvements to those measures that we do support to ensure they will be effective.

 

Though we share the commitment of the Government to taking the necessary steps to ensure the safety of the community, our own Labor values inform the approach we take to fulfilling this commitment.

 

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.  Most of this Bill is largely uncontroversial, and we have supported those measures with which we agree. But we have also been critical about some aspects of this Bill, and have argued hard for improvements to some measures. Labor foreshadowed during debate on the first Bill that subsequent Bills ‘may merit a different approach’, and this has proved to be the case with regard to the Foreign Fighters Bill. We have sought much broader changes to the Foreign Fighters Bill than we sought to the first Bill, arising as it did out of a lengthy bipartisan process of open public inquiry, begun by the Labor Government.

 

Labor has fought hard over the past weeks to improve this Bill, both by making sure it actually assists our agencies in addressing the foreign threat, and by insisting on necessary safeguards for the fundamental democratic freedoms which characterise our society, and our way of life in Australia.

 

We pursued these improvements in the Committee, where Labor Members and Senators closely scrutinised the Bill and tested the case for each new measure, and in cooperation with the Government members of the Committee we achieved 36 substantive recommendations for improvements to the Bill.

 

We pursued these improvements in negotiations with the Government, in which we have achieved agreement not just on the full implementation of the Committee recommendations but also yet further amendments to the Bill.

 

And yesterday, not satisfied with the Government’s position on two outstanding matters in this Bill, Labor pursued improvements to this Bill through amendments we moved in the Senate. 

 

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 introduced into the Parliament on 24 September.

 

It contains a broad range of measures designed to address the foreign fighter threat, and amends more than 20 Commonwealth Acts. Much of the Bill implements recommendations of the March 2013 COAG Review and the Second, Third and Fourth Reports of the former Independent National Security Legislation Monitor Bret Walker SC. These measures include:

  • A new power for interim suspension of passports;

  • Merging the Foreign Incursions Act into the Criminal Code and harmonisation with Code anti-terror provisions;

  • Changes to the law of evidence to facilitate the use of overseas evidence in prosecutions of foreign fighters;

  • A new evidence tampering offence;

  • Lowering the legal threshold for arrest without warrant for terrorism offences;

  • New power to seize bogus travel documents;

  • Providing for information-sharing between AusTrac and AGD to help combat terrorism financing; and

  • The introduction of delayed-notification search warrants for terrorism offences.

 

The Bill also includes other proposals which have attracted more controversy:

 

  • A new offence for ‘advocacy of terrorism’, and the introduction of ‘advocacy of terrorism’ as a ground for prescription of a terrorist organisation;

  • A new offence for entering or remaining in an area declared by the Foreign Minister; and

  • Expansion of power to collect biometric information on Australian citizens at airports.

 

In its original form, the Bill provided for the extension by 10 years, without review, of the sunset clauses for legislation empowering:

  • The AFP control orders due to expire in December 2015;

  • The ASIO questioning and detention powers due to expire in July 2016; and

  • The AFP preventative detention orders due to expire in December 2015.

 

The Bill was referred to the Committee, where it was thoroughly scrutinised and debated. The Committee sought public submissions and held several public hearings. Labor members worked tirelessly with their Government counterparts to apply the level of scrutiny and oversight Australians expect their representatives to bring to bear on legislation of such consequence.

 

That process culminated in the Committee’s production of a substantial report making 36 recommendations, many of them calling for significant changes or clarifications.

It is important to stress the significance of these changes and of the work done by Labor to achieve those changes.

The Australian community, well-accustomed to the cut and thrust which characterises so much of our politics, should not think that just because the debate over this legislation has risen above the rancour of day to day political competition that there has not been serious disagreement over provisions of this Bill.

 

Though, rightly, both Labor and the Government have handled these debates with care and respect, no one should be in any doubt as to the strength at times of disagreements amongst Committee members, and between the Government and the Opposition.

 

The sober deliberations of the Intelligence Committee did not share the colour and movement – some might say the political theatre – of Question Time, but there should be no doubt that this was a rigorous process. There was robust debate over a number of issues. The Government’s case for every part of the Bill was diligently tested. The Committee was able to arrive at a raft of changes to the substance of the Bill when this process revealed problems, gaps, weaknesses in the Bill as originally presented.

 

That the Committee was able to produce a unanimous report of such high quality, and that the Opposition and the Government are now able to largely agree on this Bill as amended, is not for lack of serious debate. It is because we were able to hold a serious and constructive debate that the Committee came to the conclusions it did, and that the Bill as amended to implement those recommendations is now able to be agreed to on a largely bipartisan basis.

 

I note that in each and every case Labor has insisted that the Committee’s recommendations be accepted and necessary amendments brought forward by the Government.

 

Extraordinarily, as I said, in its original form the Bill provided for the extension by 10 years, without review, of the sunset clauses for legislation empowering control orders, ASIO questioning and detention powers, and preventative detention orders.

 

Incredibly in fact, there were reports in the press that the Government initially wanted to remove any sunsetting arrangements for these powers, and confirm them as a permanent part of our law. Senator Brandis confirmed yesterday in the Senate that this had indeed been the Government’s intention, an intention completely at odds with how Labor sees these powers.

 

Control orders, PDOs, and the ASIO powers are each extraordinary and unprecedented powers introduced in the mid-2000s in response to the September 11 attacks and the Bali and London bombings. Their extraordinary nature is reflected in the fact that the Howard Government saw fit to subject those powers to review and have them lapse after 10 years of operation if no legislation was passed to extend them. I note that the then-Labor Opposition sought amendments limiting this sunset period to five years, amendments which were unsuccessful.

The Committee, after robust debate, concluded that these provisions should sunset two years after the next federal election. It is right and proper that the next Parliament be obliged to grapple with these powers again, and to decide on its own account whether their continuation is justified.

Labor was not satisfied that the case had been made for such a lengthy extension. It is not acceptable that these extraordinary powers could operate for two decades without being properly reviewed by the Parliament.

 

As I said earlier, this Bill is aimed at a present threat. Labor will resource our agencies appropriately to deal with that threat, but we will not abandon scrutiny of agency powers properly considered special or emergency measures. I consider holding the Government to a four year sunset period for far-reaching powers they had originally intended to extend for all time to be a significant achievement. It is consistent with our view that, unless evidence is shown to the contrary, these must only ever be temporary measures.

 

Importantly, Labor has ensured that these sunset provisions are accompanied by mandatory reviews ahead of time. As was noted in evidence given to the Committee, the whole purpose of sunsetting provisions is undermined if appropriate reviews are not conducted.

 

The Committee recommended that PJCIS review of the PDO, control order, and ASIO powers be mandated by statute.

 

What’s more, it has recommended amendment of the Independent National Security Legislation Monitor Act to mandate reviews of the powers by that body also. It is worth remembering that it was only due to pressure from Labor that this body was retained.

Earlier in the year the Abbott Government described this critical oversight office as ‘red tape’ and sought to repeal it. We vocally opposed that short-sighted cut, and the bipartisan support the Committee expressed for the position in its report on the first Bill was vindication of Labor’s consistent support for proper oversight mechanisms.

 

I want to again say on the record the first and so far only occupant of the office of Monitor, Bret Walker SC, performed an invaluable public service in that role. I thank him for his hard work during his tenure as INSLM, which ended in April of this year. Conscious of his busy practice in Sydney, I am also grateful that Mr Walker made himself available to give evidence to the PJCIS during its hearings on this Bill.

 

Speaking on the first Bill, I pointed out that the position of Monitor had then been vacant since April, at a time of substantial change to our national security laws. That office is still vacant, and this is simply not acceptable.

 

Labor calls on the Government to appoint an appropriately credentialed and experienced Monitor immediately.

By insisting on dramatically shortened sunset periods and on statutory reviews both by the INSLM and by the Committee, Labor has ensured that no matter the attitude of the Australian Government in the next parliamentary term, there will be a sober and considered review of these powers ahead of their scheduled sunset.

 

Labor has improved key human rights protection in the Bill’s provision for the use in terrorism prosecutions in Australian courts of overseas evidence.

 

As we did in regard to the first Bill, we have demanded amendments to clarify that torture can never be accepted in any way under our law. 

 

As originally presented to the Parliament, this Bill excluded foreign evidence obtained as a result of torture only where that torture was carried out by public officials. There is no reason why the exclusion should be constrained in this way, especially when we are particularly concerned with regions which may have no readily recognisable state authorities. The Committee recommended the exclusion be expanded to cover torture by anyone. It also recommended the expansion of the definition of evidence obtained under ‘duress’ to cover situations where evidence is obtained from a person by dint of threats to their person, their family or associates, or their property.  In its original form, the Bill had only covered circumstances where a person or their family was threatened.

 

Though we strongly support making foreign evidence easier to use – a critical part of enabling successful prosecutions under foreign incursions offences – Labor also wants appropriate safeguards for the accused. The Committee recommended that judges be obliged to warn juries about the potential unreliability of foreign evidence – an important way of making sure that trials are fair.

 

The Foreign Fighters Bill includes provision for expanded collection of biometric data on Australian travellers.

 

While the legislation expressly provides only for the collection of photographs, the Bill as originally drafted allowed the Government to expand this to other forms of biometric data, such as fingerprints or iris scans, by mere regulation – without seeking parliamentary approval.

 

Labor voiced its objection to this during the Committee process. It is not acceptable that such an expansion of power with serious consequences for the privacy of ordinary citizens could be achieved without new legislation. Indeed, it is worrying that this aspect of the Bill only became apparent during Committee scrutiny – and it is a vindication of that scrutiny process that it did.

 

We welcome the Committee’s recommendation to remove the ability of the Government to prescribe further biometric collection by regulation. We also welcome the recommendation that the Privacy Commissioner oversee both the biometric database that is provided for in this Bill, and any future legislative proposal to expand it to other forms of data.

 

The Bill makes a number of changes to Australia’s existing foreign incursions legislation which were recommended by the INSLM. Appropriately, the Bill will roll the Foreign Incursions Act = into the Criminal Code and update its provisions to specifically deal with the foreign fighter threat.

 

We welcome those changes. Alongside the improved ability to use foreign evidence, we hope that these improved provisions will allow for successful prosecutions of Australians who engage in lawless conduct in conflict zones abroad.

 

However, the Bill as originally presented was drafted in a confused way. It did not simply implement the INSLM recommendation that the definition of ‘engaging in hostile activities’ overseas be updated to include terrorist activity as currently defined under Australian law. Rather, it included a new concept – ‘subverting society’. As was pointed out in evidence to the Committee, this expanded the operation of the foreign incursions provisions well beyond what the foreign incursions provisions are meant to address. It could have seen those provisions address private disputes or petty criminal activity. Labor welcomes the Committee’s further recommendation that the definition of ‘engage in hostile activity’ be amended so that it only captures conduct which would be a serious offence under Australian law.

 

The strange legislative language of ‘subverting society’ was likely to mislead or confuse the public as to what was intended. As the former INSLM Bret Walker pointed out during the Committee process, there is no need for this sort of florid language in Commonwealth statutes, which should be drafted in clear and calm terms. A loaded legislative term like ‘subverting society’ would cause completely unnecessary community agitation when the substance of the provision is aimed simply at terrorist conduct. 

 

Labor welcomes both the substantive change which faithfully implements the INSLM recommendation, and the removal of this poor drafting technique. We are pleased to see the Government agree to produce a more tightly constrained provision drafted in clear language.

 

And across all parts of the Bill Labor has sought improved oversight and accountability mechanisms.

 

Labor believes that our security agencies can only continue to do their important work if Australia’s political leaders are willing and able to reassure the community – and I refer here to every part of our diverse, multicultural community – that our security agencies are not only appropriate empowered but also appropriately accountable.


Of key importance is that the Committee recommended that it have the power to oversee not just the Australian Intelligence Community agencies but also the AFP in its counter-terrorist capacity. Labor supports this, it is right and appropriate for the Committee to be able to hold all agencies involved in counter-terrorism activities to public account. This is especially so given the extension in this Bill of AFP powers including preventative detention orders and control orders.

 

I want to turn now to the more controversial aspects of the Bill. The new offences for ‘entering or remaining in a declared area’ and for ‘advocating terrorism’ have aroused some disquiet among legal experts and community groups. Neither arises out of recommendations made by the INSLM or the COAG Review process and so they deserve close scrutiny. 

 

Labor has made it clear that it is uncomfortable with the reversal of the evidential burden which is the defining feature of the declared area offence.

 

It is a very significant step to make it incumbent on a defendant to disprove the key element of a criminal offence attracting serious terms of imprisonment.

 

The Bill as currently drafted provides only a very confined list of ‘exceptions’ to the offence which a defendant must make out to avoid conviction. That the Bill provides for further exceptions to be added by regulation does not provide much comfort – ideally key features of an offence provision should not be defined by executive regulation.

 

Labor’s difficulty with this drafting was recorded in the Committee’s Report. In the Senate yesterday we moved an amendment which would have addressed that difficulty. Labor’s amendment provided for a general ‘legitimate purposes’ exception which would have ensured that no innocent person is convicted under this offence.

 

The Government opposed this amendment, guaranteeing its defeat.

 

I urge the Government to reconsider its opposition to that amendment.

 

No matter the intransigence of the Government in the Senate yesterday, though, Labor worked hard in the Committee process to improve this offence. The Committee made a range of recommendations tightening up what is a potentially overbroad set of provisions:

 

  • Removing the express ability of the Foreign Minister to declare an entire country a ‘declared area’, a prospect which has caused significant community agitation;

  • Providing for declarations to be disallowable, and providing for review of each declaration by the Committee within the disallowance period;

 

Crucially, and reflecting our concern that this is an extraordinary and unprecedented offence, Labor has insisted that the declared areas offence be sunsetted two years after the next Federal election. Again, this is a significant achievement and reflects our conviction that extraordinary measures like this offence must endure no longer than the immediate threat at which they are aimed.

 

To make sure that this sunset is properly accompanied by a rigorous review process, we pushed successfully for statutory review of the offence, and particularly of the list of exceptions, by both the Committee and the INSLM.

 

The Bill also creates a new offence of ‘advocating terrorism’ and makes the advocacy of terrorism a new ground for prescription as a terrorist organisation.

 

The Bill defines ‘advocacy’ to include ‘counselling, urging, promoting or encouraging’ terrorism.

 

Labor accepts the need to broaden the criminal law’s coverage of the advocacy of terrorism beyond existing offences for incitement. But we are concerned, as are many legal experts and community groups, that this definition is drafted too broadly.

 

We are worried in particular that the ambit of ‘promote’ and ‘encourage’ is uncertain, and might capture conduct that no free society should criminalise.

 

This concern was noted in the Committee’s recommendations. The Committee asked the Attorney-General to amend either the Bill or the EM to satisfactorily explain what is meant by those terms. In response, the Government intends to amend the EM to explain that:

 

  • ‘promote’ means to ‘advance, further or launch’; and

  • ‘encourage’ means to ‘inspire or stimulate by assistance or approval’.

 

Labor is not satisfied that this resolves our concerns. We don’t think that the Government’s explanation that ‘encourage’ can mean ‘stimulate’ or that ‘promote’ can mean ‘launch’ clarifies matters sufficiently. We are not satisfied that the ambit of these terms is certain, and the Parliament should not legislate for serious criminal offences when their ambit is open to question.

 

In our consultation with the Australian community, and especially with representatives of the Muslim community, we have heard concerns that this new offence might capture quite legitimate speech on controversial political matters, or that it might capture legitimate religious discussion, debate or preaching.

 

Labor agrees with the need for an offence addressing conduct which might cause others to engage in terrorism. But we know that there is a line to be carefully drawn. We would never want to criminalise legitimate religious conduct, or to cause the Muslim community to fear that honest religious activity would be criminalised. That would be completely contrary to our purpose.

 

Labor’s proposed an amendment yesterday in the Senate which would expand the existing good faith defence in s 80.3 of the Criminal Code, as it applies to the new advocacy of terrorism offence. Our amendment would make it clear that those who engage in good faith in public discussion of any genuine academic, artistic, scientific, political or religious matter will be protected from liability.

 

Again, the Government voted this amendment down in the Senate yesterday. Senator Brandis said it was unnecessary to extend the defence. His glibness belies the seriousness of this issue.

 

I note that the Attorney-General is a declared devotee of religious freedom. In a recent speech, a version of which was published in the Bible Society’s Eternity Magazine, he said:

 

One of the fundamental freedoms of which we have heard far too little when we speak about human rights is the right to religious freedom. In fact, not only has religious freedom been neglected, it has actually been the subject of open attack from those who dominate most of our political discourse, and particularly in [the ABC] and the Fairfax media. Almost invariably their targets have been the Christian faith…

 

Perhaps I don’t need to point out that this is a very quixotic view of the world. But for an Attorney-General of Australia it is also a deeply worrying view of the world. Religious freedom is not some political football with which to wage an imagined culture war against the ABC.

 

If Senator Brandis is serious about religious freedom in any real sense, serious about addressing the actual concerns of religious people of good faith who feel this law might unduly target them and their community, he should do something to reassure the community that this law will not stretch too broadly. If anyone can be said to ‘dominate’ political discourse in this country, it must surely be a Cabinet Minister in the Commonwealth Government. Live up to your principles, Senator Brandis. Let your actions live up to your lofty rhetoric

 

As I said, Labor has approached this legislation as a responsible Opposition should.

 

We have offered the Government our bipartisan support for measures to ensure our national security. But that is a constructive bipartisan support.

 

Labor did not, and never would, offer the Government a blank cheque on this or any piece of legislation.

 

We have worked hard to improve this Bill. We want to make sure that it both operates as intended and actually serves to protect our security, and also that it is subject to limits and accountability appropriate to the sort of free society that Australia is and must remain.

 

We have worked hard in pursuit of these ends in the Committee process. We have worked hard in pursuit of these ends in negotiating with the Government. And when our concerns have not been satisfactorily resolved, we have moved amendments in the Parliament, which we again urge the Government to consider and to adopt.