Feb 22, 2016

Report on Counter-Terrorism Legislation Amendment Bill (1) Speech – 22 Feb 2016

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the committee’s Advisory report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015. I ask leave of the House to make a short statement in connection with the report.

Leave granted.

Mr BYRNE: I am pleased to present the committee’s Advisory report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015. The bill reflects the lessons learnt from recent counter-terrorism investigations and gives effect to several recommendations from theCouncil of Australian Governmentsreview of counter-terrorism legislation.

The measures in the bill are intended to extend and enhance the effectiveness of the control order regime by allowing a child 14 years of age or older to be the subject of a control order, by allowing sensitive national security information to be withheld from the subject of a control order and their legal representative in a control order hearing and by allowing search, telecommunications interception and surveillance device warrants to be issued for the purpose of determining whether a person is complying with a control order. The bill also contains measures to improve the clarity and operation of a range of existing powers and provisions, and it will introduce a new offence prohibiting the advocacy of genocide.

In the course of the inquiry, the committee received 17 written submissions. It conducted one public hearing and received several private briefings. The committee received evidence about Australia’s rapidly changing security environment and the present terrorist threat. It noted trends toward short-term, low-complexity attack plans and instances of young people being involved in terrorist plots, including the horrific killing of Mr Curtis Cheng in October 2015 by a 15-year-old.

The committee concluded that it is appropriate that the control order regime be extended to young persons aged 14 and above, subject to the appropriate safeguards. To this end, the committee has recommended that the bill be amended to expressly provide for the right of a young person to legal representation in control order proceedings, remove the role of the court appointed advocate and clarify that the best interests of the young person is a primary consideration for the court in determining whether the conditions placed on the young person are necessary and appropriate, with national security remaining the paramount consideration.

The committee acknowledges concerns that this bill may contribute to, or have a perception of contributing to, social division by targeting sections of the community. The committee wants to emphasise strongly, however, that counter-terrorism laws are intended to protect the community as a whole and that the measures target conduct, not particular community groups. The committee reiterates its very strong support for efforts to promote social cohesion.

On 5 February 2016, the Independent National Security Legislation Monitor handed down his first report into control order safeguards, addressing, in particular, the question of whether a system of special advocates should be introduced into the control order regime. The committee had the benefit of considering the monitor’s findings as part of its own inquiry. The committee concluded that a system of special advocates should be introduced to represent the subject of a control order application where the court decides to consider evidence that their ordinary lawyer is excluded from receiving.

The committee further recommended that the minimum standard of disclosure of information to the subject of a control order application should be sufficient to enable them to give effective instructions to their legal representative. Other recommendations in the committee’s report include: a recklessness threshold for the offence of advocating genocide, which should be extended to include private as well as public advocacy; a requirement to have regard to the least interference with the liberty or privacy of a person when issuing a search, telecommunications interception or surveillance device; a warrant for monitoring compliance with a control order; and enhanced oversight, record-keeping and annual reporting requirements in relation to a range of powers. Following consideration of the recommendations, the committee has recommended that the bill be passed by the parliament.

On behalf of the committee, I thank the organisations and individuals who participated in this inquiry. I also acknowledge the work of the member for Wannon and former chair of the committee, Dan Tehan. It has been quite a pivotal period of time for the evolution and development of this committee. This committee has become by far the most important committee to consider security matters on behalf of the Australian people—in a way which we cannot disclose to the public. But—and speaking as Deputy Chair—we subject intelligence provided to us and legislation provided to us with intense scrutiny. I would like to pay tribute to the chair of the committee, the member for Wannon, for chairing the committee in a particularly challenging time. It has been a challenging time for the secretariat and its staff, a number of whom are sitting in the advisers’ box—Julia Searle, Dr Anna Dacre and others who worked with us, including the secondees. Thank you very much for your work in very testing circumstances on a number of occasions.

The result has been this: for the five tranches of legislation it has contemplated so far, the committee has made 157 recommendations. We will be awaiting the government response to the recommendations contained in this particular report. With the 136 recommendations that we have made so far, 37 acts have been amended, one act has been repealed and 68 legislative changes have been made. The committee has been making a substantial difference to the national security architecture of this country, balancing, I believe, the rights and liberties of the individual versus the necessity of providing security to the Australian community.

In closing, however, I think this committee does need more power. I have said previously that this committee has been evolving. I have just returned from a trip to the United States, where I looked at the functioning of the House Permanent Select Committee on Intelligence. One of the key findings and take-home points I have is that, in these modern times, with leaks like the Snowden leaks and other material that has been put out there, I think that committees tasked on behalf of the Australian people to look at matters of national security and legislation need more powers, including increased access to operational activities of the intelligence agencies that we oversee. We have made progress so far with respect to that. We have brought the counterterrorism functions of the AFP under our umbrella. We have some element of the customs and border protection department. There is some other operational information that we have been given with respect to warrants on journalists, for example, and access to metadata.

But these are incremental and small steps. Fundamentally I think the Australian people need this committee to have the capacity to inquire more diligently and more thoroughly into matters that it should be tasked to look at. That would include, potentially, the capacity for the committee to have self-referencing power, and I draw interested parties’ attention to the sterling paper written by former senator John Faulkner which addressed that very issue.

As I said, this is the fifth tranche of legislation that has been passed. I commend the bipartisanship of the committee, but ‘bipartisanship’ should not be taken to mean that we all sit there and agree with each other on every matter that we have discussed. I can say without breaching any provisions of the Intelligence Services Act that on many occasions there has been much robust conversation with respect to that, but that is the job of our committee—a committee behind closed doors that operates on behalf of the Australian people. As I said, I would like it to have more power. I think it would serve the interests of this parliament for it to have more power, and I look forward to this committee getting more power in the course of its evolution.

In accordance with standing order 39(e) the report was made a Parliamentary Paper.


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