Speech on Counter-Terrorism Legislation Amendment Bill (No. 1) 2016

This latest national security bill introduced by the Abbott-Turnbull government, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016, was originally introduced to the Senate on 12 November 2015.

On the same day, the Attorney-General wrote to the Parliamentary Joint Committee on Intelligence and Security to refer the provisions of the bill for inquiry and report by 15 February 2016. Submissions on the bill were requested by 10 December 2015, and hearings were held on 14 December 2015. The committee, of course, did report in February 2016. Now, the bill has reached this House for debate a little over a year since the bill was first introduced to the Senate.

This bill implements several recommendations from the Council of Australia Governments review of counter-terrorism legislation in 2012 and reflects developments from recent counter-terrorism investigations. The Abbott-Turnbull government has introduced several national security bills over the past four years. These previous legislative measures have provided additional and broader powers for intelligence agencies and law enforcement authorities.

Labor's motivation when it comes to national security matters is always the safety of the Australian community. Labor has continuously demonstrated our strong belief that our intelligence and security agencies and our law enforcement authorities should have the resources and capabilities they need to keep Australians safe from the threat of terrorism. Labor's support of our security agencies includes a commitment to ensuring that appropriate resources and powers are available to combat the threat of terrorism. Labor will work responsibly to give our intelligence and security agencies the support they need to combat future security challenges.

Labor is bipartisan on matters of national security, but our bipartisanship is not to be mistaken for a blank cheque. Labor's commitment to national security means that we will support necessary and effective measures to address threats to our nation, but it does not mean that we will give automatic support to every proposal that this government puts forward.

The measures in the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 ensure that our security agencies and police forces are equipped with a valuable tool for preventing terrorist attacks—the control order regime. The effectiveness and value of control orders for our police and security agencies has been demonstrated carefully and sparingly since control orders were introduced into Australian law in 2005. Just six control orders have been issued, reflecting that these orders are reserved for only the most serious of cases. Control orders will be sort if this will help to prevent a terrorist attack if the person against whom an order is sought has been trained, has participated in training with a listed terrorist organisation, has engaged in a conflict or hostile activity in a foreign country or has been convicted of a terrorism-related offence.

 

At the time of the introduction of the bill to the Senate, estimates provided by security agencies showed that there have been around 110 Australians fighting or otherwise engaged with terrorist groups in Iraq and Syria and approximately 200 others providing support or facilitation from Australia. This increase in the number of Australians engaged with terrorist groups means that security agencies may need to respond with greater frequency than when the control order regime was first introduced in 2005.

 

Labor will always support legislation that makes Australians safer, but we must also ensure that the balance between public safety and privacy and civil liberties is appropriate. That is why we have advocated for improvements to the national security measures that we support, in line with Labor's values, to ensure that human rights are protected as much as possible. It is this constructive bipartisanship that we have brought to this bill and all national security legislation.

 

Most of this bill is largely uncontroversial, and Labor immediately supported those measures. But we have also argued for improvements and criticised the elements of the bill where the right balance between protecting community safety and protecting human rights and freedoms has not been achieved. Labor members have worked hard to ensure that we balance the need to provide our security agencies with the control order powers that they need with the safeguarding of the rights of any minors subject to control order applications. We have been careful to ensure that any such young person has the right to be provided with a lawyer to advise and represent them.

 

Labor members pursued improvements to the bill through the Parliamentary Joint Committee on Intelligence and Security to ensure that this bill was fit for purpose. Our work resulted in 20 substantial recommendations for improvements to the bill, and, following negotiations with the government, we were able to reach agreement on the implementation of these recommendations.

 

To give context to the improvements to this bill that were achieved by the work of Labor members, it is useful to consider the scope of the bill in the original form in which the bill was first introduced into the Senate. The bill updates Australia's counterterrorism legislation in a number of ways, including allowing 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; removing the ability of serving Family Court judges, as opposed to serving judges of the other federal courts, to issue preventative detention orders; the introduction of a new offence of advocating genocide; lowering the age of a person who may be subject to a control order to 14; improved protections for all minors subject to control order applications; the introduction of a new class of warrants to facilitate the monitoring of compliance with control order conditions; and allowing national security information not to be fully disclosed to a person who is the subject of a control order, where that is necessary.

 

Once introduced to the Senate, as I noted earlier, the bill was referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report. The committee received submissions, held a public hearing and tabled its report on 15 February 2016. The committee made a number of recommendations to change the bill. These included improved reporting of the exercise of monitoring powers, including telecommunications interception and surveillance device control order warrants; improved drafting of the threshold conditions for preventative detention orders; 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; 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 the 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. This will ensure that 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.

 

There was significant public concern at the time that this bill was introduced and in the course of the hearings of the intelligence committee about the proposal to lower the minimum age for persons that can be subject to control orders to 14 years of age. Several representatives of the Muslim community particularly expressed their concerns that extending control orders to people as young as 14 years of age could be counterproductive and further alienate disaffected teenagers.

 

They were also concerned that it could damage relations between young Muslim Australians and the police. The National Children's Commissioner, among others, also raised concerns about this proposal noting the potential of a control order to disrupt the education of a child and arguing that it is preferable to work with communities to divert children from the path to extremism.

 

Labor supports early intervention and community engagement as a way of countering emerging terrorist threats. In combination with strong counter-terrorism legislation, these are key approaches to preventing vulnerable young Australians from being groomed into extremist ideology. It is essential that the government seek wide and diverse advice on matters of national security and deradicalisation, as Labor does, from security agencies and from community leaders. I note the comment of ASIO Director-General Duncan Lewis:

 

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

 

Countering violent extremism programs need to be targeted, cohesive and properly funded. To work, they need to provide viable alternatives to disenfranchised young Australians who may be vulnerable to being groomed by terrorist recruiters. Security agencies must work with families and communities to challenge the lies told by those who wish to radicalise young Australians, and Labor accepts that control orders are one tool which should be available to our security agencies where appropriate. It is a tragedy that people as young as 14 are being targeted by organisations like ISIL for radicalisation, and Labor takes this threat seriously.

 

Labor understands the challenges faced by our security agencies and the challenge of identifying and resisting radicalisation in young Australians. My new colleague the member for Cowan has vast experience in fighting the radicalisation of young people. Her skills as an international expert in countering violent extremism will be of enormous benefit to this parliament.

 

Labor recognises 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 potentially affected. The age of criminal responsibility, under Australian federal law, is generally set at 14 years of age. 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 require the best interests of the child to be the 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 insisted on these amendments because they strike a better balance between protecting the rights and civil liberties of young people and ensuring the safety of all Australians.

 

The COAG recommendation that the government give consideration to introducing a special advocate system for control order proceedings has been implemented by this bill. The bill now includes amendments that will establish such a system in response not only to that COAG advisory council report but also in response to the recommendations of the Independent National Security Legislation Monitor in January 2016 and the PJCIS in February 2016.

 

As with all national security legislation, Labor has approached this bill responsibly and with the rights and safety of Australians in mind. We have offered the government our bipartisan support for measures to ensure the security and safety of Australians and have accepted the advice of security agencies and community leaders to strike the correct approach between protecting community safety and implementing appropriate safeguards. As a responsible opposition, Labor did not offer the government a blank cheque on this legislation. We will not do so with any piece of legislation. We will continue to approach national security in a considered manner informed by experience, expert advice and the recommendations of community, legal and law enforcement experts.

 

Labor's approach will ensure that this bill operates as intended and serves to protect our great country and its citizens.

 

We have worked hard to achieve the right balance through the committee process and we have kept the need for appropriate safeguards in mind throughout the negotiations with the government. Labor will continue to work 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. I commend the bill to the House.