Senate

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

Second Reading Speech

Senator Brandis (Queensland-Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate)

I table the explanatory memoranda relating to the bills and government amendments to be moved to the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows-

COUNTER-TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2016

The Counter-Terrorism Legislation Amendment Bill (No. 1) marks an important step in the government's efforts to further strengthen Australia's robust national security laws and counter-terrorism framework. It is broadly the same as the Bill of the same title introduced into the Senate in November of last year-with the important additions of further safeguards recommended by the Parliamentary Joint Committee on Intelligence and Security.

Australians currently face the most significant threat from terrorism in our nation's history. The Australian Government continues to work diligently towards combatting the threat we face from terror groups and individuals, both overseas and at home. Sadly, by any measure, the threat we face has only risen.

Around 110 Australians are currently fighting or engaged with terrorist groups in Syria and Iraq. At least 58, and potentially as many as 66, Australians are believed to have been killed in the conflict, while approximately 40 Australians have returned to Australia after travelling to Syria or Iraq and joining groups involved in the conflict. Some of these returnees remain a significant security concern.

There are about 200 people in Australia being investigated for providing support to individuals and groups in Syria or Iraq, including through funding and facilitation, or are seeking to travel.

The National Terrorism Threat Level for Australia is Probable. This means there is credible intelligence that indicates that individuals or groups have developed both the intent and capability to conduct a terrorist attack in Australia. Since 12 September 2014, when the national terrorism threat level was raised, 48 people have been charged as a result of 19 counter-terrorism operations around Australia. That's over half of all terrorism-related charges since 2001.

These numbers highlight the significance of the threat we face.

One of Australia's greatest strengths is our harmonious, diverse, multicultural, multi-faith community. This must be preserved and protected.

The measures introduced in this Bill reflect operational learnings from recent counter-terrorism investigations. The Bill also includes a number of recommendations from the Council of Australian Governments Review of Counter-Terrorism Legislation.

The Bill seeks to maintain a careful balance between enhancing our law enforcement capabilities and protecting individual rights. To this end, the Bill reflects the Government's acceptance of the recommendations of the Parliamentary Joint Committee on Intelligence and Security on the 2015 Bill. The provisions complement the earlier tranches of counter-terrorism measures introduced by this Government since 2014.

The Bill strengthens Australia's already robust counter-terrorism laws in several key areas.

Schedule 2 - Control orders for young persons

First of all, the Bill amends the existing control order scheme to provide that a control order may be issued against a young person from the age of 14 years.

Recent experience, including law enforcement operations, has shown that young persons can pose a significant risk to national security through their involvement in planning, supporting, and executing terrorist acts.

Regrettably, recent events demonstrate the necessity of our law enforcement agencies being able to access the full suite of measures in relation to young persons.

Australia's national security legislation must provide law enforcement with appropriate tools to ensure the safety of the public and to ensure they are well equipped to respond to, and prevent, terrorist acts. This is the case even where the threats are posed by people under the age of 18.

A control order would only be issued against a person aged under 18 in the rare circumstances that it was required to:

·
protect the public from a terrorist act;
·
prevent a young person from supporting or facilitating a terrorist act; or
·
prevent a young person from supporting or facilitating the engagement in a hostile activity in a foreign country.

The Bill retains the existing safeguards in relation to young persons and introduces important new provisions applicable to 14 to 17 year olds. These include:

·
a maximum 3 month duration for the control order; and
·
a requirement for the issuing court to take into account the young person's 'best interest'.

In response to Recommendation 2 of the Parliamentary Joint Committee on Intelligence and Security's advisory report, the Bill includes a requirement for the Australian Federal Police to advise all people subject to a control order of their right to obtain legal advice and legal representation. This provision will improve the safeguards not only for young people, as recommended by the Committee, but for all people who are subject to control orders. I am circulating a Government amendment providing that if a young person to which this section applies is not legally represented, the Court will appoint a legal representative for that person.

Schedules 8, 9 and 10 - New monitoring powers

Schedules 8 to 10 contain amendments to Commonwealth legislation to ensure law enforcement agencies can monitor compliance with control orders.

With the increased use of the control order regime to address the risk posed by foreign fighters, these measures will ensure that we can effectively monitor compliance with the obligations, restrictions and prohibitions imposed by control orders.

The amendments will ensure investigative tools are sufficiently adapted to monitoring the risk of possible breaches of control orders.

Warrants will be available for the purposes of:

·
protecting the public from a terrorist act
·
preventing support for or the facilitation of a terrorist act or a hostile activity in a foreign country, and
·
determining whether a control order has been or is being complied with.

These powers will only apply to individuals subject to a control order. Importantly, in response to recommendations of the Parliamentary Joint Committee on Intelligence and Security, the use of these powers will be subject to oversight from the Commonwealth Ombudsman.

Schedule 15 - National security information

Schedule 15 provides a broader range of options for protecting national security information that is used in control order proceedings.

With the increased tempo of counter-terrorism operations, it is sometimes necessary for our law enforcement agencies to take action earlier to protect community safety. To prevent death or serious harm, agencies may need to act before a full brief of evidence can be developed.

Consequently, those agencies will need to place a greater reliance on information from intelligence partners and sensitive sources.

The changes introduced in this Bill will provide greater protection to national security information that is considered in control order proceedings. This is vital in order to maintain critical intelligence partnerships and to protect sensitive capabilities.

These provisions amend existing arrangements for the protection of sensitive information whilst balancing the rights of individuals involved. They will provide the court with a discretion to consider very sensitive national security information in support of a control order application that is not shown to the subject of the control order proceeding or their legal representative. However, the Bill reflects the Government's acceptance of Recommendation 4 of the Parliamentary Joint Committee on Intelligence and Security on the 2015 Bill, to make clear that the subject of the control order proceeding must be provided with sufficient information about the allegations against them on which the control order is based to enable effective instructions to be given in relation to those allegations.

In addition, the Government has implemented Recommendation 5 of the Parliamentary Joint Committee on Intelligence and Security to create a special advocate role to represent the interests of persons subject to control order proceedings where the subject and their legal representative have been excluded from hearing or seeing sensitive national security information. The special advocate provides an important safeguard in ensuring that the procedural rights of the subject of a control order proceeding are upheld.

Whilst the Bill creates the architecture for a special advocate role, some time will be needed for the supporting regulations and administrative arrangements to be established for the regime to work. The Government will work swiftly to ensure these arrangements are put in place as soon as possible.

Consistent with the recommendation of the Committee, the provisions in the Bill providing for the protection of sensitive information in control order proceedings will commence without delay. The court will be able to continue to exercise its inherent powers to appoint a special advocate on an ad hoc basis.

Schedule 11 - Offence of advocating genocide

To address the negative impact of hate preachers, Schedule 11 introduces a new offence of advocating genocide.

The Australian Government is doing everything it can to tackle the threat posed by those who justify terrorism and who radicalise and recruit people to take part in terrorism.

The Australian Government has a long and deep commitment to free speech. But the community cannot allow the advocacy of terrorism or of genocide, which is the incitement to murder an entire population, not an exercise of free speech.

In the current threat environment, the use of social media by radical Islamist proselytizers means the speed at which persons can become radicalised and could prepare to carry out acts in response to a call to commit genocide may be accelerated.

Law enforcement agencies require tools to intervene earlier in the radicalisation process to prevent and disrupt further engagement in terrorist activity. This new offence is intended to be one of those tools.

Schedule 18

Schedule 18 implements all of the recommendations made by the Independent National Security Legislation Monitor in his report on section 35P of the ASIO Act.

These amendments will introduce new protections to section 35P by establishing two separate offence regimes, with one regime to apply to persons who came to the knowledge or into the possession of the relevant information in their capacity as an entrusted person and a separate regime for 'outsiders'.

Under these new regimes the disclosure of information made by members of the community, except those who received information in their capacity as an entrusted person, will only constitute an offence if the information will endanger the health or safety of a person or prejudice the effective conduct of a special intelligence operation.

The amendments will also establish a defence of prior publication available only to persons who did not receive the relevant information in their capacity as an entrusted person.

It is critical that ASIO continues to have the tools and capabilities, such as the use of special intelligence operations, available to them in order to effectively combat the significant terrorism and espionage threats that Australia faces.

Indeed, in making his recommendations the Monitor agreed that it is appropriate to retain disclosure offences, and that the special intelligence operation scheme is both necessary and proportionate.

The Government understands the importance in maintaining public awareness of, and confidence in, the activities of our security agencies. The decision to implement all of the Monitor's recommendations regarding section 35P in full further demonstrates our commitment to ensuring that we are achieving the right balance between the public interest and our national security requirements.

Concluding remarks

The Government is committed to ensuring that Australia's national security laws and counter-terrorism framework are as robust as possible.

This Government has worked closely with the states and territories to ensure that Australia's counter-terrorism framework is as good as it possibly can be. Countering terrorism and violent extremism is a priority for all Australian governments. We greatly appreciate the ongoing cooperation of the states and territories in this endeavour.

Consistent with the legislative reforms made in 2014 and early 2015, the Government continues to monitor the adequacy of our legislation and will develop further necessary legislative amendments.

We will continue to take on board operational learnings and ensure that Australia's counter-terrorism framework adapts to the constantly changing threat environment.

The Australian Government is committed to fulfilling its most important responsibility-protecting Australia, its people and its interests. We will continue to do so while instilling confidence that our national security and counter-terrorism laws will be exercised in a just and accountable way, consistent with the values of a free and open society.

This Bill demonstrates the Australian Government's determination to address, proactively and effectively, the constantly evolving threats to our national security.

CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2016

At the 2016 election the Coalition Government reaffirmed its commitment to the Australian people to implement tougher criminal penalties for gun-related crime.

The criminal misuse and trafficking of firearms is a deadly crime and an ongoing threat to the safety of our communities.

We know that criminals use these weapons to protect their interests such as drugs, or to commit acts of violence.

The imperishable nature of firearms and the ongoing supply of firearms to the illicit market mean they remain a serious threat to the Australian community.

Now, more than ever, we must do everything in our power to ensure the ongoing safety and security of all Australians.

That is why the Coalition is determined to introduce measures to double the existing maximum penalties for firearm trafficking to 20 years imprisonment and implement 5 year mandatory minimum sentences.

This sends the strongest possible signal that we will not tolerate gun crime.

But time and time again, those opposite have blocked these tough measures - playing politics with the safety of every Australian.

Labor claims that mandatory minimums should be avoided. The member for Batman, former shadow for the Justice portfolio told the Parliament: "...it is laid out in the Australian Labor Party's national platform that it is the strongly-held view of my party that mandatory minimum sentencing is often discriminatory in practice .... So we oppose mandatory sentencing."

But, when they were in Government they introduced mandatory minimum sentences for people smuggling offences.

They have confirmed what we already know - Labor is not prepared to do what it takes to get on with keeping Australians safe.

While Labor goes soft on gun crime, the Coalition Government is getting on with delivering what it promised to the Australian people - a safer and more secure nation.

Details on the Bill

This Bill will introduce a mandatory minimum sentence of five years imprisonment for offenders convicted of trafficking firearms or firearms parts under the Criminal Code Act 1995.

Mandatory minimums send a strong and clear message that gun-related crime and violence will not be tolerated.

The mandatory minimums will capture all offenders who engage in the illicit firearms trade, not just those who trade in large numbers of firearms or parts.

However, these mandatory minimum penalties are not without safeguards. They will not apply to minors and will not specify a minimum non-parole period - that decision will remain at the discretion of the sentencing judge, enabling the circumstances of the individual to be taken into account.

In addition to the mandatory minimum sentence, this Bill will also increase the maximum penalties for firearms trafficking to 20 years' imprisonment, 5,000 penalty units or both - double the current penalty.

The increased maximum penalty will ensure that the most serious instances of trafficking firearms within, into or out of Australia are matched by appropriate punishments.

This combination of penalties will be a strong deterrent against people seeking to illegally import firearms and their parts into Australia. The amended penalties will more adequately reflect the serious nature and potential consequences of supplying firearms and firearm parts to the illicit market.

Other measures to deal with illegal firearms

This bill is just one of the measures that the Government has taken to address the serious problems arising from illegal firearms.

Under Labor we saw savage cuts to customs, the AFP and the Australian Crime Commission - a 25% reduction in sea cargo inspections and a 75% decrease in air cargo inspections.

When we came to government, the Coalition boosted funding for our law enforcement and security agencies, including $88 million for the Australian Border Force to boost inspections at our border.

We continue to invest significantly to ensure that our law enforcement agencies have the tools and powers they need to keep Australia safe.

For example, the Government recently announced an additional $25.4 million to fund the expansion of the AFP's National Forensics Rapid Lab. This will enhance the AFP's capacity to detect and seize illegal firearms and target the criminal syndicates that peddle them.

Since coming to Government, we have also invested $116 million in the National Anti-Gang Squad, which targets organised crime groups within Australia - particularly their role in firearms trafficking.

Through the Squad, the Government has fostered unprecedented cooperation between federal, state and territory law enforcement agencies, which to date has resulted in 583 illegal guns being taken off our streets.

Earlier this month, the Victoria Strike team of the NAGS, Victoria police and their international counterparts seized a significant number of firearms and firearms parts that had been illegally trafficked into Australia by a criminal syndicate.

A member of that syndicate has now been charged under tough new laws introduced by the Coalition Government last year.

These new laws closed a loophole that allowed criminals to avoid prosecution - making international firearms trafficking a serious criminal offence and extending the offences to include firearms parts, as well as whole firearms.

If the Coalition Government had not acted to strengthen these laws, these dangerous criminals could have evaded penalty.

These measures demonstrate the Coalition's commitment to tough action on gun crime.

We will continue to pursue our legislative agenda to keep our communities safe.

CRIMINAL CODE AMENDMENT (HIGH RISK TERRORIST OFFENDERS) BILL 2016

The Criminal Code Amendment (High Risk Terrorist Offenders) Bill introduces a framework into Part 5.3 of the Commonwealth Criminal Code that will provide for the continued detention of high risk terrorist offenders serving custodial sentences who are considered by a court to present an unacceptable risk to the community.

Terrorism poses a serious threat to Australia and its people. There have been 19 counter-terrorism operations since September 2014, resulting in the charging of 48 persons. Across the jurisdictions, there are a total of 15 terrorist offenders serving a custodial sentence and 37 persons before the courts.

While a majority of states and territories, as well as international counterparts including the United Kingdom and New Zealand, have enacted post-sentence preventative detention regimes dealing with high risk sex and/or violent offenders, there is no existing Australian regime for managing terrorist offenders who may continue to pose an unacceptable risk to the community following the expiry of their sentence. Law enforcement agencies can seek to rely on control orders to manage the risk of terrorist offenders upon their release from prison. However, there may be some circumstances where, even with controls placed upon them, the risk an offender presents to the community is simply too great for them to be released from prison. This is a significant public safety issue.

Commonwealth, State and Territory Governments are committed to ensuring that Australia's counter-terrorism framework remains responsive to the evolving national security threat. At a Council of Australian Governments' meeting in April, States and Territories agreed in principle for the Commonwealth to lead the process of developing a post-sentence preventative detention regime that could apply uniformly across all jurisdictions.

On 5 August, I met with State and Territory Attorneys-General to discuss this issue. The jurisdictions agreed in principle to the creation of a national post-sentence detention regime on the terms of the Commonwealth draft Bill. Subsequent to this meeting, jurisdictions have now agreed to the provisions of the Bill in accordance with the Inter-Governmental Agreement on Counter-Terrorism Laws, which underpins the existing referrals of power on counter-terrorism matters by the States to the Commonwealth.

The Commonwealth considers that the new framework has a sound constitutional foundation. Out of an abundance of caution, however, I have asked my State counter-parts to enact amendments to existing referrals of power relating to Part 5.3 of the Criminal Code to make explicit that State support extends to the post-sentence preventative detention regime.

The regime is modelled closely on existing State and Territory post-sentence detention regimes for high risk sex and/or violent offenders. I thank the jurisdictions for the collaborative spirit in which this Bill has been developed.

The object of the Bill is to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders serving custodial sentences who pose an unacceptable risk of committing a serious terrorist offence if released into the community upon the expiry of their sentence.

The Bill will enable the Supreme Court of a State or Territory to make two types of detention orders against a person. The first is a continuing detention order, which will enable a person to be detained in prison for up to three years. However, further applications may be made, and there is no limit to the number of such applications. An order can only be made against a person who is currently imprisoned and serving a sentence for specified offences under the Criminal Code, including offences related to international terrorist activities using explosive and lethal devices, treason, serious terrorism or foreign incursions and recruitment.

The second type of order a court can make is an interim detention order, which can last for up to 28 days. An interim detention order will be available in circumstances where the terrorist offender's sentence or existing continuing detention order will end before the court has had an opportunity to determine the continuing detention order application.

The Bill contains significant safeguards to ensure respect for the rule of law. Only the Commonwealth Attorney-General may make an application for a continuing detention order to the Supreme Court of the State or Territory in which the person is currently imprisoned. The Court must be satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious terrorism offence if the offender is released into the community. A serious terrorism offence is an offence in Part 5.3 of the Criminal Code that carries a maximum penalty of seven or more years of imprisonment. The Court must also be satisfied that there is no other less restrictive measure that would be effective to ensure community safety against the risk the person presents.

A continuing detention order is appealable and must be reviewed every 12 months. Furthermore, a person must be at least 18 years old when their original sentence ends and cannot be accommodated or detained in the same area of a prison as persons serving ordinary sentences of imprisonment except in certain circumstances.

Commonwealth, State and Territory Governments are committed to ensuring that Australia's counter-terrorism framework remains responsive to the evolving national security threat. This Bill forms part of the Government's comprehensive reform agenda to ensure Australia's counter-terrorism framework is effective in keeping the Australian community safe.

To enable the Parliament to give full consideration of this important Bill, I am writing to the Parliamentary Joint Committee on Intelligence and Security to ask it to examine this Bill, and to make recommendations. The Government will also continue its valuable work with the States and Territories on this important scheme to protect the community while ensuring the appropriate safeguards consistent with the rule of law in a free and open society.

Senator Brandis: I move:

That these bills be listed on the Notice Paper as separate orders of the day.

I advise the Senate that under the terms of the Intelligence Services Act 2001, I have referred the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 to the Parliamentary Joint Committee on Intelligence and Security for its advice.

Question agreed to.

The President: In accordance with standing order 111, further consideration of these bills is now adjourned until 10 October this year.