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Second reading speech on the third round of counter terrorism laws

Speeches in Parliament
Penny Wright 26 Nov 2014

Senator WRIGHT (South Australia) (12:52):  I rise to oppose the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014. This is yet another draconian piece of legislation to add to what is becoming an impressive collection of rushed, poorly crafted national security legislation pushed through this place by the government and, despite all their rhetorical protestations, supported by the opposition. This bill is another highly disturbing example of excessive law-making professed to be about protecting Australians from harm but in fact intruding upon the rights and freedoms of Australians at home and, this time, when overseas as well. It has been introduced without regard to concerns raised by legal and other experts, without scrutiny by a multiparty Senate committee and in the absence of an Independent National Security Legislation Monitor.

Next week I will be introducing a private senator's bill to amend the Independent National Security Legislation Monitor Act 2010 to preserve and enhance this crucial oversight and scrutiny role, which has been left vacant since April this year. Among other things, my bill will aim to: ensure that the monitor can review proposed as well as existing national security legislation; make it clear that the monitor is required to consider whether Australia's national security legislation is a proportionate response to the national security threat faced; ensure that the position of monitor is a full-time position, cannot be left vacant and is supported by appropriate staff; and ensure that all reports of the monitor are tabled in parliament and that the government is required to respond to the recommendations of the monitor within six months of tabling, something which has not occurred in the past.

The crucial role of the Independent National Security Legislation Monitor, the INSLM, was outlined by the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, in their recent report into this bill. The Parliamentary Joint Committee on Intelligence and Security recommended that the government finalised the appointment of the Independent National Security Legislation Monitor as a matter of absolute urgency. This is not only a position the government has left vacant for a good part of the last six months; it is also a position the government wanted to abolish. I know this government finds it difficult to take advice from the experts, but its attempts to avoid scrutiny of such important legislation, which will affect the rights and freedoms of Australians, are completely unacceptable.

That the position of Independent National Security Legislation Monitor has remained vacant since April is, I believe, no coincidence. This vacancy has coincided with some of the most significant changes to our national security legislation in my lifetime, and the government has wanted to avoid scrutiny on each of the national security bills at every step of the way. I have stood in this place late at night, when the press gallery is empty and the nightly news has gone to air, and witnessed the government push draconian national security legislation through this place without enough time for sufficient scrutiny, without adequate time for senators to know exactly what they are voting for or against, without a full appreciation of the unintended consequences for our freedom of association, of speech, of movement, of the press-and I could continue.

The Australian Greens understand that our law enforcement and intelligence agencies must have the powers to find and prosecute those who engage in terrorist acts or other such hostile activities, but we do not accept that the rights and freedoms of Australians need to be significantly eroded in order to achieve this goal. It is crucial we are able to protect innocent Australians while prosecuting the guilty, and it is crucial we have independent oversight of national security legislation to ensure it is a reasonable, necessary and proportionate response to the national security threat we are facing.

I will now go to the specific content of this bill. I will go first of all to schedule 1 of the bill, which makes control orders easier to get and for a broad range of purposes. The expansion of the control order regime is one of the most serious aspects of this bill. In its 14th report, the Parliamentary Joint Committee on Human Rights considered the extension and amendment of control orders which was effected by the last national security legislation this Senate considered, the so-called foreign fighters bill. The committee observed that the control order regime involves very significant limitations on human rights in Australia. The committee noted that the control order regime is a coercive regime which engages a significant number of human rights, including the right to security of the person and the right to be free from arbitrary detention, the right to a fair trial, the right to freedom of expression, the right to freedom of movement, the right to privacy, the right to protection of the family, the rights to equality and nondiscrimination and the right to work.

Essentially, the control order regime allows the imposition of controls on an individual, limiting their freedom, without needing to follow the normal and long-established criminal law process of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt on the basis of evidence. A control order can impose a number of obligations, prohibitions and restrictions on the person who is the subject of the order, and these include: where a person must stay and when; preventing a person from going to certain places; preventing a person from talking to or associating with certain people; preventing a person from leaving Australia; requiring a person to wear a tracking device; prohibiting access to or use of specific types of telecommunications, including the internet and telephones; preventing a person from possessing or using specified articles and substances; and preventing a person from carrying out specific activities, including in respect of their work or occupation-their livelihood. Control orders can be applied to people who have not been charged with a criminal offence and even to people suspected of harbouring a criminal intent.

These orders have been consistently criticised by domestic and international human rights bodies and described by independent experts as in urgent need of reform. They have been used only twice in Australia and are supposed to be directed at serious criminal activity when a threat is eminent and decisive urgent action is needed to prevent serious harm-serious criminal activity, like participation in terrorism, terrorist training or hostile activities. They exist alongside an ever-expanding arsenal of counter-terrorism that allows police and ASIO to go undercover with immunity to put people and their friends and family under extensive and intrusive surveillance, to arrest, question and detain people without charge, to stop and search people and places, and to charge people on the basis of who they know or what they say. This is Australia in 2014.

This bill would make it possible to get a control order if a police officer suspects on reasonable grounds that it would prevent the provision of support for, or facilitation of, a terrorist act or hostile activity overseas. This bill would also dilute the existing safeguard that requires the court to consider whether each obligation, prohibition or restriction contained in the control order is proportionate and necessary and will make other procedural changes to make control orders easier to get. Some submission makers to the PJCIS inquiry suggested that this would mean that control orders would be sought against controversial street preachers or others who spread extremist interpretations of Islam and expressed their support for violent acts overseas or to prevent engagement in online media, online banking, community or religious meetings, or religious activities, such as attendance at a mosque. The Australian Greens consider this to be a completely unnecessary extension of an already faulty regime that has been consistently criticised by human rights bodies and the Independent National Security Legislation Monitor.

The Australian Greens oppose the changes proposed in schedule 1, particularly those proposing additional grounds for which control orders can be obtained and the provisions in schedule 1 which would remove the requirement for an Australian Federal Police officer applying for a control order and the issuing court to consider the necessity and proportionality of each of the obligations, prohibitions or restrictions on a person. The PJCIS also shared some of these concerns and has made a number of recommendations for amendments to schedule 1. If contrary to this position schedule 1 of the bill is pursued, the Australian Greens have proposed sensible amendments to at least ameliorate the harsher aspects of this schedule.

The Australian Greens' amendments limit the use of control orders to require a clearer, stronger nexus between the activity of the person and the commission of a specific criminal offence. The amendments do this by requiring the police officer who is applying for the interim or confirmed control order to demonstrate that he or she suspects on reasonable grounds that the person has in fact provided support for or otherwise facilitated a terrorist act or a hostile activity in a foreign country. As drafted, the bill allows control orders to be sought if reasonably suspected to be necessary to prevent the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country and preventing the provision of support for, or the facilitation of, a terrorist act. This is a very slippery slope. It is absolutely unacceptable that a control order would be sought purely as a preventative measure, which is what this bill is seeking to do, when there is no clear evidence that the person subject to the order has actually formed a criminal intent or taken any specific action towards the commission of a criminal offence. Our amendments would ensure that control orders are available only in the most serious of circumstances where the authorities have real evidence to demonstrate that they are necessary to protect the public from a terrorist act or to prevent engagement in a hostile activity overseas.

As currently drafted, the proposed changes in schedule 1 of the bill would significantly expand the scope of the control order regime from one of last resort, which was its original intent, to one available at the early stages of a foreign incursion or terrorist investigation. Expanding the scope of the control order regime goes against expert advice, including that of the former Independent National Security Legislation Monitor, Bret Walker SC, who found that control orders were 'not effective, not appropriate and not necessary' and recommended that they be scrapped. Yet here we are with the government once again ignoring the expert advice and ploughing ahead with an expansion of this faulty regime without making the case for these changes.

As the Gilbert + Tobin Centre of Public Law wrote in their submission to the PJCIS, the bill's explanatory memorandum justifies the expansion of the control order regime by pointing to the threat posed by Islamic State and the return of foreign fighters to Australia. Their submission goes on to say that this assertion is 'not sufficient to justify the significant expansion of measures that have already been discredited by major inquiries'. The Gilbert + Tobin Centre of Public Law submission states:

In the absence of some significant evidence presented by the government as to why these changes are necessary to prevent terrorism, we believe that the Committee should recommend against their enactment.

Law enforcement and intelligence agencies in Australia already have a broad range of powers at their disposal. They have extensive surveillance powers, can go undercover with immunity and can already arrest, question and detain people without charge. Why they must continue to significantly expand the flawed control order regime is beyond me, and beyond many others it seems. One of the reasons the INSLM recommended the control order regime be scrapped was that such significant restrictions should not be placed on an individual's liberty in Australia in the absence of a finding of criminal guilt.

I will turn now to schedule 2 of the bill, which relates to ASIS and defence related assistance. Schedule 2 of this bill makes changes to the Intelligence Services Act to make it clear that Australia's overseas spy agency, the Australian Secret Intelligence Service, which I will refer to as ASIS, can help the ADF, the Australian Defence Force, in support of military operations.

It also dilutes procedural safeguards relating to the grant of emergency ministerial authorisations. These changes greatly extend the functions of ASIS that are already extremely broad in scope and that already exempt ASIS from criminal and civil liability, without providing any new limits or safeguards to ensure that ASIS does not engage in activities that cause harm or result in the breach of fundamental rights. The Gilbert + Tobin Centre and some other commentators have expressed concern that the changes proposed in schedule 2 may lead to ASIS being involved in the targeted killings of Australian citizens fighting in Iraq and Syria. They say that such killings raise significant and difficult questions of domestic policy, human rights and international law. Having a government being able to kill its own citizens in foreign countries, and in the absence of greater parliamentary and public debate about these matters-this should not be facilitated by this bill.

There is also strong concern among legal experts that the Intelligence Services Act does not contain a general prohibition on torture. Other concerns with schedule 2 relate to the changes to the authorisation process. The proposed changes in schedule 2 are of concern as they would enable a minister to authorise an ASIS operation to apply to a class of Australian persons rather than requiring individuals of concern to be identified. This then subjects whole groups of Australians who are overseas to surveillance by ASIS without requiring the authorisation process to actually identify a particular individual. This would vastly extend an already invasive surveillance regime to cover people who have not been identified as raising any particular risk or concern to the safety of others or to the security of Australia, provided they are within the class of persons specified by the minister-doing it in a 'job lot', if you like.

The Inspector-General of Intelligence and Security has flagged that this may pose difficulties for effective oversight. The proposed changes in schedule 2 also expand the circumstances in which 'emergency authorisations' can be sought-meaning that authorisations can be made orally by the minister, or even by ASIS itself in certain circumstances. Many of these features of schedule 2 have been criticised sharply by those who have made submissions to the PJCIS, and have led to the PJCIS making numerous recommendations for reform of this bill-reforms that would begin to restore some fairness to this process. It remains to be seen if these reforms are adopted, but, even if they are adopted, the government has failed to make the case for why such extensive powers are needed, and why adequate safeguards and limitations have not been introduced.

The Australian Greens consider this to be a completely unnecessary extension of an already overly expansive regime. The Australian Greens oppose the changes proposed in schedule 2. If these features of schedule 2 are pursued, the Australian Greens have proposed an amendment that would specifically prohibit ASIS from engaging in any conduct that would amount to torture in accordance with Australia's obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Torture has absolutely no place in Australia. Under section 14 of the Intelligence Services Act, ASIS officers are not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency. This has given rise to concerns that, if this bill extends the scope of ASIS's activities to include the provision of assistance to the ADF, this could lead to the targeted killings of Australian citizens fighting in Iraq and Syria, or to other acts constituting serious human rights incursions-including torture. There are currently no specific protections in the Intelligence Services Act to guard against the use of torture by ASIS in its overseas activities. There is, however, limited protection against direct use of violence or weapons by an ASIS officer. The Australian Greens' amendments would make it crystal clear that ASIS officers must not be involved in any conduct that would be contrary to Australia's obligations under the convention against torture.

In closing, I want to reiterate the serious nature of the bill which we are debating. We are talking about expanding a flawed control order regime. No longer would control orders be used only as a last resort. This bill risks control orders being sought during the early stages of a foreign incursion or terrorist investigation. We are debating a bill that may lead to ASIS being involved in the targeted killings of Australian citizens. Once again, the Australian Greens condemn acts of terrorism in the strongest possible terms. But we do not support this government's insistence on eroding the rights and freedoms of Australian people. The Australian Greens will be opposing this bill.

 

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