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Foreign Fighters legislation will affect every Australian

Speeches in Parliament
Penny Wright 28 Oct 2014

Senator WRIGHT (South Australia) (12:52):  I rise to speak with a heavy heart about this bill, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. This is a significant and complex piece of legislation which, if enacted, will have long-term impacts on how ordinary Australians go about their lives. These impacts will include whether and where people travel; the circumstances in which people can be detained and questioned by ASIO, Customs officials or the police; and what kind of public commentary on controversial issues is allowed to occur in Australia. The reality is that once this legislation is enacted-once it is on the books-it is very likely, on the basis of the lessons of history, that it will be very hard to shift.


To watch the full speech, click here.

I want to make one thing clear in this speech, and it is this: this legislation does not target only those with a criminal or terrorist intent. Nor does it carefully pinpoint gaps in the existing counter-terrorism legal framework and then fill them in neatly. This is a bill that will affect many everyday Australians and how they go about their lives. It contains widely drafted, sweeping reforms and makes changes to over 20 existing acts. It introduces a range of new, very serious criminal offences. It extends the scope of many other existing criminal offences, and it significantly expands the range and scope of powers available to law enforcement and intelligence-gathering agencies.

Interestingly enough, I received a tweet when I was talking about the need for the scrutiny of legislation. Someone tweeted to me, 'Why do you Greens want to protect terrorists?' I think that is one of the fundamental issues that we need to come to terms with in debating this legislation, because it is not the guilty I am interested in protecting here, it is the innocent. It is actually the Australians going about their lives who will be affected by this wide-ranging, unprecedented change to our laws. Tomorrow these laws may affect me or my child or my neighbour, or someone listening to this speech or reading my remarks.

In response to some of the commentary that I have been putting out in relation to this national security legislation I received a letter from an Australian working abroad, who thanked me for the Greens' work in opposing this legislation, in particular the 'declared zones' offence. This person said:

While some people are having theoretical debates about what such provisions might mean, it is all too real for people like me. I am an Australian living and working in the Middle East, many of my friends are aid workers and journalists, and this bill will have serious repercussions for us. If this bill becomes law in its current form, on our return to Australia, we will all be criminals; unless and until we can prove we are not.

While in the Middle East I have worked with and volunteered for INGOs .... One has to ask how exactly restricting or criminalising the movements of people like me will make Australia a safer place?

I urge people who might be listening to this, or reading these remarks, to remember that every time, in Australia, we lose rights and freedoms that are precious-every time we allow fear to divide us and hurt people who are innocent-terrorism is actually winning. The Australian Greens have consistently said that there must be proper parliamentary scrutiny of this legislation, including a robust inquiry which offers legal experts and relevant stakeholders a genuine opportunity to come to terms with this complex legislation, to analyse it and to provide comment on the bill.

In the face of fear about terrorism the first failure of this government, in carrying out its duty to protect the population of Australia, is in not providing an adequate opportunity for this parliament and the Australian community to even begin to understand some of the most significant counter-terrorism changes in our lifetimes. This has not happened. This is a failure to uphold and protect some of the most dearly held tenets of the democracy that we cherish-in a sense, that we are fighting for here. This is irresponsible and antidemocratic. Already, by playing the national security trump card, by rushing these laws through parliament in the space of two days in the Senate, with inadequate time to consider them and before they have been properly scrutinised by the very committee of this parliament established to safeguard our human rights-the Parliamentary Joint Committee on Human Rights-it is possible to say that this government is already allowing terrorism to win, or to start to win.

The government is pursuing these changes without adequate consideration of the broad range of existing offence provisions and powers that are currently available to such agencies to protect the Australian community against threats to national security, and     without a careful analysis of whether each individual reform proposed is a necessary and proportionate response to genuine and legitimate national security concerns.

As it is for every other senator in this place, keeping the Australian community safe from harm is my unwavering priority. Of course it is. I live in the community. My family is in this community. My children are here and so are my neighbours and my friends. But I will not pretend that the only way we can keep our community safe is to undermine the rights and processes that make us a vibrant parliamentary democracy.

I will not agree to amending laws on the run, without allowing the parliament or the community to really understand what they will mean for ordinary Australians. I will not agree that doing that is the best way to guard Australia against national security risks.     The Australian Greens support careful lawmaking, particularly when people's lives, rights and liberties are at stake. This means ensuring that the agencies we rely upon to protect us from harm have the tools they need to investigate crime and gather intelligence. But it also means looking at what laws we already have in place, whether they are working properly or need to be improved, and when they should be limited to the most exceptional circumstances.

In short, it means listening to those with experience and expertise. Sadly, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 has been introduced in flagrant disregard of these principles. As a result, this bill risks being at least an ineffective reaction to the national security threat which is faced by Australia, duplicating existing laws, and at worst it risks being a disproportionate intrusion on the rights and liberties of Australians.

Let's look at the lack of scrutiny first. I was really interested to hear Senator Collins' comments. It will be interesting to see how Labor votes this afternoon when there is an hour's motion to gag debate on this bill. If that motion is successful, this Senate will have fewer than eight hours to consider the most significant counter-terrorism laws in my lifetime. The unwarranted haste with which this bill is being pushed through parliament has meant government agencies and Australia's foremost legal experts have not had enough time to provide a comprehensive analysis of the full bill. The communities who were apparently consulted in relation to the draft bill remain deeply concerned with its content and continue to feel sidelined and ignored. Even the government's own expert-the position established for the specific purpose of monitoring our national security laws-the Independent National Security Legislation Monitor, the INSLM, has remained vacant since April, leaving Australia without the source of independent expert advice it needs most.

The Legal and Constitutional Affairs Legislation Committee, of which I am a member, forewent its capacity to inquire into the bill, although the Senate referred it to that committee. The unrepresentative Parliamentary Joint Committee on Intelligence and Security, comprised only of the club, coalition and Labor politicians, with no input from crossbenchers or Independents or the Australian Greens, has had too little time to identify and address the potential implications of these changes on the lives of ordinary Australians.

As a lawyer, I remain deeply concerned about the devil yet to be revealed in the detail of this bill. The Australian Greens have a number of concerns about this bill, many of which I will not have time to address during the time allocated. However, I will start with the no-go zone offence. The Australian Greens will seek to abolish the so-called no-go zone provision in this bill which will make it a criminal offence, punishable by 10 years imprisonment, for a person to travel to a declared area. In an extraordinary departure from the type of traditional rule-of-law principles the Attorney-General in this place claims to hold dear, the offence does not include a fault element; it does not include a mental intention element; it does not require the person to be travelling with any kind of criminal or wrongful intent. It effectively allows the executive arm of our government to draw red circles on the world map and put anyone who goes there at risk of criminal prosecution.

There is a narrow list of exemptions for 'legitimate purposes', but this will not protect the many Australians who travel abroad every year. A person who has travelled to a declared zone will be subject to a criminal charge and can only effectively defend themselves if they can bring evidence to show that they were in the area solely for one of the listed legitimate purposes. Legally, to start with, that will be extremely hard to do. As the law stands, visiting friends will not suffice. Travelling to give legal advice or for a religious pilgrimage or ceremony is not covered. And, while visiting a family member will be considered a legitimate purpose, being invited to a wedding in another town while you are there and attending would breach the requirement for the purpose to be a sole reason for the travel.

This law will have a chilling effect on the freedom of movement of every Australian with relatives or friends in areas that are experiencing, or may in the future experience, violence or conflict. Would anyone here with young children take the risk of visiting a sick mother or father in a declared area if they knew they would have to face a criminal court to prove the legitimate reasons for their travel on their return? It is also worth noting that travelling for business purposes is currently not listed as a legitimate purpose in the bill. This offence has the serious potential to isolate and divide family members, dislocate migrant communities and stifle business transactions with developing nations. The risk is that this will further entrench feelings of isolation and alienation in the very communities we rely upon most in building a safer, more cohesive Australian society. And all this when this offence is considered by legal experts to be completely unnecessary.

Australia's criminal laws already well and truly cover circumstances where a person leaves Australia to participate in hostile or terrorist activities overseas, as well as circumstances where a person encourages or urges another person to engage in such activities or a person who financially or otherwise supports terrorist or criminal organisations.

Let's turn to control orders and preventative detention orders. The second area for concern is indeed the extension of sunset clauses-the built-in expiration provisions for various existing powers: control orders, preventative detention orders, ASIO's questioning and detention warrant powers, and certain stop, search and seizure powers relating to terrorism offences available to the police under the Crimes Act. Despite the fact that we are told that this legislation is so urgent that we must consider it within a period of hours in the Senate and get it through the parliament with unwarranted haste, these powers are not due to expire until December 2015 and July 2016. But this bill seeks to extend them further. These powers are exceptional. They allow authorities to operate outside the traditional criminal justice process, because they restrict the liberty of people not charged with, or even suspected of, engaging in a criminal offence.

A number of independent bodies, including the Independent National Security Legislation Monitor and the 2012 COAG review of counter-terrorism measures, have carefully reviewed these existing powers.

Both the INSLM and the COAG reviews recommended that the preventative detention order regime be repealed, describing it as being 'at odds with our normal approach to even the most reprehensible crimes', and said that it may be thought to be 'unacceptable in a liberal democracy'-but maybe that is not what we are living in anymore. The INSLM also stated that 'control orders in their present form are not effective, not appropriate and not necessary'. Inexplicably, this bill ignores expert evidence in relation to these provisions and precludes the opportunity for further review of these powers by the Parliamentary Joint Committee on Intelligence and Security, which is required to review the operation, effectiveness and implications of ASIO's questioning and detention warrant powers by January 2016.

As well as extending the time frame for these powers, this bill extends their reach by making it easier, for example, for the police to obtain and enforce control orders. I cannot say strongly enough: we must not normalise powers that will allow ASIO or the police to detain someone without charge; limit whom they can speak to, where they can go and whether and where they can work; and impact on the lives of their families. We must remember that we are not only talking about Prime Minister Abbott's 'baddies' here; it could very well be a 'goodie'-a person getting on with their everyday life in Australia-who gets caught up in this. If a mistake is made, a suspicion is wrong and someone happens to be in the wrong place at the wrong time-and we have historical examples of that in Australia-lives can be destroyed, people can be crushed and our democracy is poorer.

Let me turn to biometric material. This bill contains biometric data provisions that usher in an unprecedented change to the data collected about travellers at Australian airports. I will be moving amendments to remove these sections. No-one has had the time to carefully consider what this change might mean and what impact it will have on the privacy rights of all Australians leaving on international departures, including those who pose no risk to Australia's national security. As presently drafted, these changes could result in giving the green light for the collection and inter-agency sharing of biometric material, which currently includes photographs and face recognition, but could potentially include iris scanning and fingerprints. We just do not know precisely what forms of biometric material will or can be collected, used and shared under these changes and under what circumstances and with whom this material can be shared. Due to lack of time, many experts were unable to provide comprehensive submissions on the impacts of these changes. For these reasons, the Australian Greens will move that the reforms proposed in schedules 5 and 6, relating to the expanded use of biometric material for passenger processing at Australia's border, be removed from the bill.

I will also introduce amendments in relation to the new offence of advocating terrorism. Many experts have suggested this offence duplicates and unnecessarily expands existing offences while using broadly defined terms that may have unintended consequences. This offence risks capturing legitimate commentary on issues like Australia's foreign policy or political satire whilst at the same time driving those with nefarious intentions underground, making it harder to monitor and investigate real terrorism offences such as supporting a terrorist organisation. To remain one of the world's strongest democracies, we must remain free to strongly criticise the actions of our government, particularly on those matters directly relevant to our nation's place in the world, such as whether we should engage in combat activities overseas or whether Australia should publicly condemn or praise a certain political or violent struggle. Not everyone thinks carefully about their public contributions on matters that invoke passionate responses. It is chilling to think of those among us, from our teenage sons and daughters to favourite online bloggers, who, because of impetuous or thoughtless action with no real malice involved, could be at risk of very serious punishment under an offence like this, which does not specifically define the limits of criminal liability.

We also have significant concerns about new powers for the suspension of travel documents and visa cancellations. These clauses give the minister very broad powers with limited oversight and narrow appeal rights. The Australian Human Rights Commission, among others, has pointed out that the cancellation of family and sponsored visas risks violating a range of human rights.

We have other concerns about the expansion of powers of customs officials to detain people without charge, the delayed notification search warrants and provisions governing the use of foreign evidence in Australian criminal proceedings-and we will be speaking further about those in our committee stage amendments.

The issues raised in this speech merely skim the surface of the Australian Greens' grave concerns with this bill. The Parliamentary Joint Committee on Human Rights has not yet even finished its consideration of this bill and is still waiting for responses from the Attorney-General to deal with deficiencies in the mandated statement of compatibility provided with the bill. But it is fair to say that Australia has a proud history of protections and freedoms that it has inherited from hard-fought reforms in British democracy. When the government seeks to take away freedoms including freedom of movement, freedom of expression, right to freedom and freedom from arbitrary detention, it is essential that the legislation is subject to rigorous scrutiny. (Time expired)

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