STATUTES AMENDMENT (TERRORISM) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 September 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:24): I rise to speak on the Statutes Amendment (Terrorism) Bill 2015, which was introduced by the Attorney to our house on 8 September this year. Since that time I note that there have been significant events in Canberra, and although there has not been a change to the Attorney-General's position, or indeed to the Minister for Justice, under the changed cabinet arrangements I do note that the Minister for Defence has changed. We now have Senator the Hon. Marise Payne, who was sworn in this week as our new defence minister.

I am going to refer to her shortly, but I do think that, given her appointment, it will be appropriate that we consider a consultation with her in order to be provided with some update and particulars as to whether there is any change of views to be advanced given that change. We will do that, but I indicate that we will be certainly supporting this bill in this house and its passage, probably today. I do not think there will be a number of speakers on our side of the house, but I will say that we will give consideration to any amendments that we may receive upon receipt of response from stakeholders.

Some further information has been provided by the government since the bill was tabled, and that has been done in the form of a briefing provided by Mr Les Buckley, the Security and Emergency Management Coordinator in our state, and a representative from the Attorney's office. Unfortunately, the principal drafter of the bill was not available; however, I think I see his expertise now sitting in the chamber in which case it may be that we can resolve some matters which I still need answers to during committee.

Certainly that may help us to crystallise or even eliminate a need to consider further amendment if the answers are forthcoming and, I suppose, adequate. I should also complete the contribution, the further information, by saying that at that briefing I did request some further information and most of that has been forthcoming—a small further amount today.

I do wish to thank the parliamentary research library who were able to promptly obtain certain information, which apparently was unavailable or at least was going to take too much time for the department to provide. I will say that the library provided it promptly and comprehensively, but nevertheless I make the point that, in a circumstance where we are asked as a parliament to consider legislation proposed by the government and we are asked to advance quickly to have a matter resolved, we always look at the merits of that request, and there are some circumstances where it is absolutely critical that the passage of legislation is expedited.

I think it is fair to say that, when a reasonable proposal is put to us in that regard and the information provided, we cooperate where we consider that to be in the interests of the state. It is not something that should be a regular practice because, obviously, we expect the government to be diligent in attention to its responsibility not only to develop and progress legislation but also to keep it under supervision and to provide necessary amendment or enhancement as is its responsibility.

So, when we have a piece of legislation which has a sunset clause and which needs some review, some monitoring and some management, we expect the government to be responsible in that regard.

I would have to say that, whilst we are met with a bill in this instance which is only two paragraphs and which is to extend a sunset clause for the provision of two pieces of legislation, the Terrorism (Police Powers) Act 2005 and the Terrorism (Preventative Detention) Act 2005, for another 10 years—extend it from 10 to 20 essentially—it is concerning to us that the expiry date is 8 December this year and that we are being asked to progress it quickly because of the expiry date.

Can I just say that, leaving aside the merits of the extension or whether in fact an expedited process of dealing with this means that we are really left without any opportunity to consider alternate time frames let alone the principal determination about whether that should be advanced, it is very difficult for us to be able to do that if the information upon which we can reasonably make an assessment, even an early assessment, is not forthcoming promptly.

So, firstly, it is disappointing that, even though a briefing was provided promptly on this matter when the government gave notice that they wished to have this matter dealt with this week as soon as we returned and even though the relevant usual stakeholders have not been consulted apparently because of this need to deal with this matter posthaste, the government have been overall a little slow in disclosing the full picture.

Let me start with the provisions of the act. I have indicated it is to amend the legislation as referred to in the manner I have referred to. In regard to the background of this legislation, I want to place on the record that the police powers act—I am summarising this now—provides for extraordinary police powers for our state police in cases of terrorism and emergency or threatened emergency. It has never been used in the last 10 years.

I have today perused the annual report from the Minister for Police to the Attorney-General tabled here today confirming that in this last financial year to 30 June 2015 there were no applications by the police to have a preventative detention order issued and accordingly no-one was taken into custody, and that for each of the preceding nine years the same report has been given with a slightly different format but with the gist of the same determination. We are satisfied that this power has never been used, nor even sought in this jurisdiction.

However, the second part of the legislation under review, as such, is the preventative detention legislation, and that allows the state to detain a person for up to 14 days without the usual charges. That has never been used in South Australia, but it has been in New South Wales and Victoria, and I will come back to that shortly.

The acts follow the commonwealth legislative action via their Criminal Code Act to deal with terrorism after the events of 11 September 2001, and, unsurprisingly, similar legislation was passed all around the country to support a regime of opportunity to implement extraordinary powers for the police and detention arrangements in the event that we were to face a similar emergency or threat.

It is interesting to note that the independent international security monitor, then Mr Bret Walker SC, conducted a review in 2010 of the legislation, as did COAG. Both recommended a repeal of the preventative detention orders. I think it is fair to say that members who might know Mr Walker would know that he has made extensive comment and writings in this area and has held high office as a senior counsel in Australia and president of various legal associations.

He is very well regarded, but he has had very strong views about the breaches of the principles that require a person to be formally charged if they are to be detained. Essentially, he supports the concept and the principle that any accused is entitled to be informed of the alleged offences for which it is claimed they are guilty. These, in the extraordinary circumstances, are the justifications for going beyond these usual principles and form the substance of the legislation which we are now being asked to extend.

In short, the decision to extend was made notwithstanding the report of Mr Walker and a COAG report that was prepared in 2012 titled Council of Australian Governments Review of CounterTerrorism Legislation. I will refer to a couple of recommendations from the COAG report. Recommendation 39 in respect of the Criminal Code's provision of preventative detention states:

The Committee recommends, by majority, that the Commonwealth, State and Territory ‘preventative detention’ legislation be repealed. If any form of preventive detention were to be retained, it would require a complete restructuring of the legislation at Commonwealth and State/Territory level, a process which, in the view of the majority of the Committee, may further reduce its operational effectiveness.

The second recommendation I will refer to is under recommendation 44: Crimes Act 1914, which provides for the federal stop, search and seizure powers and, in particular, the sunset provision. Their recommendation is:

If the search and seizure powers in the Crimes Act are renewed in 2016, the Committee recommends amending section 3UK to provide that the relevant provisions should cease to exist as at the expiry date, which will be a five year period.

It is fair to say that the recommendations as they stood are inconsistent with what we are being asked to do today. What we are being asked to do today is to continue both the police powers and the preventative detention laws for another 10 years.

Circumstances that have occurred since then are obviously relevant to consider, because they apparently form the justification for going against the recommendation of these reviews. In essence, the government says that the reason there is a compelling case for the retention of these preventative detention powers are the events surrounding the Monis siege and foreign fighter issues. Further elaboration of the events include the growth of terrorist groups such as ISIL, known and proscripted in Australia as Islamic State, having been active, and I think that is well known to members of the chamber.

Sadly, we read on a daily basis about conflict in other places—Iraq in particular and, more recently, in Syria—all of which I am sure is of concern to all members of the house. Many planned and actual events of violence can be attributed to their influence. They include the Man Monis siege in New South Wales. That, of course, would be familiar to members in respect of the Lindt café siege, which was a horrifying event during which, sadly, two people died. As I understand the information provided, the coronial inquiry continues in respect of that.

I think it is fair to say that there has been a question mark put over whether the siege in Sydney was or could be fairly described as a terrorist act, or incident, or threat. Whilst at the time the federal government declared it to be a terrorist incident, the information provided by the Attorney's office is that the purpose of doing so was to ensure that there would be financial compensation through insurance payouts, which otherwise would have been denied by insurance companies, to the affected businesses that sustained loss or damage to their property.

That may be a meritorious reason to ensure that people are not left out in the financial cold, so to speak. It is probably a rather extreme measure to suggest that that be the declaration if it was not, because it does raise the question of the level of alarm in the general public. I do not think that anyone would disagree that the incident itself was shocking and very distressing especially for those who were directly involved and the families who were left without parents. However, it does raise the question about whether we should still be branding it as something that it may not be. In any event, that coronial inquiry continues.

The second incident or event that has been referred to is the stabbing of two police officers in Victoria. On that matter, I am advised that one was a member of the Victorian state police and one was a member of the Australian Federal Police. In short, the officers were attacked and the assailant was shot and killed. Again, this had the taint of a terrorist threat, as it was identified that he had been under investigation by antiterrorism officials and his passport had been cancelled. There were concerns about his family having arrived in Australia 10 years before and his apparent plan to travel overseas to Syria and Iraq.

The third incident related to the shocking threats of the beheading of two men. This involved a number of arrests after raids in Brisbane and Sydney in 2014. Preventative detention orders were issued for three persons from New South Wales. As I understand it, no charges have been laid, but action was taken at the time to prevent a perceived imminent threat. Certainly, they had a lot of media coverage as well. As I said, because of the current circumstances in Syria and to some degree still in Iraq, a high alert by the Australian government was issued in September last year, and all of the circumstances over the last 12 months or so point towards justification for the counterterrorism legislation (I am paraphrasing it) being extended.

There has been one other tranche of significant legislation that I think needs to be considered, and we certainly have done so for the purposes of considering an extension. As of late last year, the then Abbott government, via Senator the Hon. George Brandis, who is the Attorney-General, introduced legislation to deal with foreign fighters. Essentially, this is legislation to amend the then commonwealth laws claiming, of course, to assist in the capability of Australia's law enforcement, intelligence and border protection, in particular against the threat of returning foreign fighters and those individuals within Australia supporting foreign conflicts.

In short, it was to establish significant offences and penalties: the suspension of passports, the restriction on re-entering Australia and loss of citizenship, etc., all came under consideration. In essence the claim was that, if you were an Australian or you were an Australian with dual citizenship and you went to support or fight with some other entity's army or fighting force, then you would pay the price by not being able to return to Australia. Pretty severe, but it was introduced to deal with that issue. If you were clearly going to be sympathetic to the entities that were prescribed as being dangerous for Australia, then you would face a risk.

The measures of that legislation broadened the criteria and streamlined the process for the listing of terrorist organisations; preserved and, in fact, enhanced the key counterterrorism measures due to expire, which were extended; provided certain law enforcement agencies with the tools to investigate, arrest and prosecute those supporting foreign conflicts (via delayed notification search warrants, lowering the threshold of arrests without warrant for terrorism offences and improving the collection and admissibility of evidence collected overseas); and updated the available criminal offences so that they were relevant and addressed the foreign fighter threat.

As I say, it introduced these new offences of advocating terrorism, entering a declared area overseas where terrorist organisations were active and strengthened the protections to the Australian borders by expanding the existing customs detention powers, expanding the collection and use of personal identifiers of citizens and non-citizens both arriving and departing from Australia, and various other miscellaneous support mechanisms to those principles. Finally, it limited the means of travel for foreign fighters or the support for foreign fighters. That, as I think I have already said, included the suspension of Australian passports and the seizing of passports, cancellation of welfare entitlements and the like.

All that has happened since. Does it cover the field for what we might need? In short, the answer to that is no. I think it is fair to say that there is a persuasive case to support a continuation of these powers, given the current heightened circumstances that we are in. I can say that I am not an advocate of this type of legislation existing on a continuous basis. There are certain circumstances where there is a justification, but if it has not been used or it has been demonstrated that there is no imminent threat, then, frankly, it should be repealed. If it were not for the fact that there was an agreement nationally, given the current circumstances and the events at a civilian level in the last year or so, I would be recommending that this side of the house oppose the continuation of this bill. As I said, I think there is a reasonable case for it.

I move now to the COAG review committee report finalised on 1 March 2013 and tabled in parliament on 14 May 2013 by Attorney-General Brandis. I refer to these three recommendations and, as I understand it, this is the second report:

Recommendation 45: State and Territory police powers of search, entry and seizure—Judicial authorisation

The Committee recommends that the various jurisdictions amend their legislation to reflect a greater degree of judicial oversight. The legislation in each State or Territory should be based on the current ACT, Tasmanian or Victorian model, requiring authorisation or final authorisation by a judge of the State or Territory Supreme Court.

Recommendation 46: State and Territory police powers of search, entry and seizure—Privative clauses

The Committee recommends that the various privative clauses in the current legislation be removed.

Recommendation 47: State and Territory police powers of search, entry and seizure—Reporting

The Committee recommends that there should be a regular reporting function incorporated into each 'special powers' statute.

It is one thing to point to the recommendations in respect of the federal law and the action that the federal government has taken in respect of the COAG Review of Counter-Terrorism Legislation and its subsequent legislation on the foreign fighters aspect and then try to translate that to say, 'Well, we will just continue what are doing here and ignore the recommendations which suggest that at a state and territory level there does need to be some reigning in.' Essentially, it provides that if police are going to have these special powers, then it needs some judicial oversight and obviously the change in respect of some other aspects.

Having obtained this information and not really having had an opportunity to review all of that, I will say that we will be looking at that aspect along with any submissions that are presented to us by stakeholders in this area before we come to a final landing on it. As I said, we are not going to hold up the bill here today.

On the face of it we accept, firstly, there have been very significant and serious events in our neighbouring states and we need to look at how we protect ourselves in those circumstances and, secondly, how the provision under the commonwealth law and its advance and its development does not really cover the issue of how we might address or have the police powers expanded here. However, the issues, including what powers we leave with the state and territory police without judicial oversight, must include: is it necessary for us to continue to have preventative detention orders of up to 14 days when the commonwealth in its extension of its detention has made provision for up to 48 hours? Certainly, I would have to say those issues are serious ones for which we need to consider somewhat further.

I am advised, and I place this on the record, that the maximum 14-day detention period in South Australia is consistent with what they all agreed at COAG after the 2011 events, which culminated in the 2005 legislation here, and it was translated around the country. That may well have been by national agreement but that does not mean that it is necessarily appropriate for that to continue. So, I would like some review of that.

The other matter is that although our legislation is to expire on 8 December, we still have a few months to consider that. I got the impression, and I may have misunderstood the haste which it was being requested that this be dealt with as almost like: if we don't hurry up and do this quickly, everyone else is doing it, so we need to quickly resolve this so that everyone's in the same tent. I now find that in fact it is not quite as advanced as I had assumed.

As I say, whilst it appears that it was going to be difficult for the department to make some assessment of the advance of the other states in their extension of sunset clauses, I am advised this morning that on 16 September 2015 (that is, last week) the Counter-Terrorism and Other Legislation Amendment Bill 2015 was introduced in the Queensland parliament. That, I am assuming, is progressing to extend its preventative detention powers. Its principle act was passed in 2005, so I am assuming it has a life only to the end of this year some time. I do not know at this stage whether that is to extend it for another 10 years or not or whether in fact they have chosen another date that was more in line with the recommendations. I am also uncertain at this stage as to what further time was extended for the commonwealth, but I will be asking some questions in relation to that in the committee stage.

I agree that it would have taken a bit of time to identify that the bill had been tabled in Queensland, but in a quick ring-around this morning to my colleagues in the other states, and confirmed by research done in the library, they were able to tell me that apart from the information (which was also provided at lunchtime by the government) that the Queensland legislation had been introduced, they were also able to tell me that on 15 September (the day before) Tasmania had introduced its bill, the Terrorism Legislation (Miscellaneous Amendments) Bill 2015, again to deal with preventative detention and police powers legislation. That is currently before their legislature, that is, their Legislative Council, having passed the House of Assembly on the 17th.

It seems that in two days they dealt with that piece of legislation. Their expiry date may have been more imminent. No legislation has been introduced in Victoria; no legislation has been introduced in the ACT; no legislation has been introduced in New South Wales; no legislation has been introduced in the Northern Territory; and no legislation has been introduced in Western Australia. It may be that their original legislation allowed for either a longer period of time or the passage of their original legislation was much later and if they had 10-year sunset clauses their expiry is over a later period. Tuesday, 22 September 2015 HOUSE OF ASSEMBLY Page 2613

I do not doubt that there was this special meeting of COAG to review the position. The commonwealth has acted, Tasmania and Queensland are in the process of acting, and there is an expectation on others to follow suit. I do want some answers, and I am happy for them to be provided between houses, but it seems to me that if we are being asked to deal with this quickly we need to have some extra detail. I can then present that for consideration to our side of the parliament.

Can I say, as I opened, that the appointment of Senator the Hon. Marise Payne as the defence minister is certainly an inspired choice of the new Prime Minister. I, along with others of this house, have conveyed our congratulations to Senator Payne. I am personally thrilled at her appointment. I expect that most of the media have highlighted the fact that she is the first female defence minister, but I want to place on the record that, having known the senator for over 20 years, her appointment is not only inspired but I am sure that she will be an excellent and long-serving defence minister.

For the purposes of considering what her view may be as to any further amendment required at the commonwealth level, or what she would be seeking from the states, I think it is worthy of a phone call or an invitation to her office to make a comment on what is going on. She was very active in 2003 and 2004 in the Senate, in particular as the chair of the legal and constitutional legislation committee investigating the provisions of the Anti-terrorism Bill 2004. That reported in May 2004 and later that year, in August 2004, her committee reported on the provisions of the Anti-terrorism Bill (No. 2) 2004.

The committee is very extensive, and the members of the committee were Senator Marise Payne, Senator the Hon. Nick Bolkus, Senator Brian Greig, Senator Joe Ludwig, Senator Brett Mason and Senator Nigel Scullion; I think it is fair to say, pretty comprehensive. During the course of the operation two of the senators were replaced by Senator Aden Ridgeway and Senator Kerry O'Brien. So a broad church was represented on this committee and there were some very comprehensive reports. I remember reading through these at the time we considered our own legislation, but I also take into account that the progress of that legislation back in 2005 was within the envelope of the shocking events of 2001. The world was still reeling from those events, I suggest, and was quick to make, as quickly as possible, a legislative protection barrier against further threats.

In the cold light of day, after 10 years, we need to think carefully about whether what we did needs to continue in its original form, or whether in fact we should be looking for some modification of that. Very smart people, including Bret Walker SC, have reviewed this matter. It does not escape our attention that in South Australia at no time has the preventative detention order been sought or implemented, and it does raise the question about whether we need to continue at that level. I am not sure whether other members wish to speak on the bill; I think I am possibly the only speaker.