Justice Legislation Amendment (Terrorism) Bill 2018


Ms PENNICUIK (Southern Metropolitan) — Thank you, Acting President Gepp, and I congratulate you on your ascension to the role of Acting President. I rise this afternoon to speak on the Justice Legislation Amendment (Terrorism) Bill 2018. This bill proposes a large number of amendments to the Terrorism (Community Protection) Act 2003; the Bail Act 1977; the Corrections Act 1986; the Children, Youth and Families Act 2005; the Crimes Act 1958; the Criminal Procedure Act 2009; and the Sentencing Act 1991. The bill is 253 pages long and has 135 clauses.

As Mr O'Donohue noted in his opening remarks, it is quite a complicated and large bill that makes amendments to a number of acts. We have done our best to go through the bill and also to refer to the reports that gave rise to the bill. The two reports were from the Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers that was commissioned by the government following the incident in Brighton in June 2017. These reports were released last year, and they are also very comprehensive, lengthy and complex to go through. We have also referred to the Australian government Independent National Security Legislation Monitor review of the Criminal Code, control orders and preventative detention orders, further to an earlier report. The one I was just talking about was released last year, but there was another one released earlier that we referred to at length during the debate on the Terrorism (Community Protection) Amendment Bill 2015. This bill expands on many other powers that were introduced in that act to which we expressed our concerns.

Having outlined how large and complicated the bill is, the major points of concern that we have with the bill regard precharge detention, the lowering of the threshold for application from imminent threat that a terrorism act may occur to threat within 14 days — it is difficult to know how anybody is going to judge the difference between say, for example, 13 days and 15 days, but I do note that other states have put in place this particular new threshold. The bill also reduces the age of those who are eligible under the provisions of the bill to 14 years old, so children are included in this regime. It will allow for police detention without a Supreme Court order for four days and will remove the prohibition on questioning during such detention.

The bill also introduces special police powers, lowering the threshold for their application from imminent threat to threat within 14 days and granting these special powers to protective services officers (PSOs). The bill will allow the Supreme Court to prevent evidence being provided to the defendant or their legal representatives with regard to applications under the act. The bill attempts to clarify the preventative legal force provisions that police and PSOs will be able to apply; I will talk about that later in my contribution. The bill applies the presumption against bail, or reverse onus test, to those who are deemed a terrorism risk regardless of the charge they may be facing, which may or may not be a charge of terrorism or a terrorism-related charge. The bill applies a presumption against parole to those who are deemed to be a terrorism risk, including children.

I should say that the Greens across the country, in every state and at the commonwealth level, have expressed concerns about preventative detention orders and the preventative detention order regime. In the debate on the previous legislation I made the point that the Independent National Security Legislation Monitor (INSLM) had in its 2015 report said that it really could not see the evidence for the use of preventative detention orders given the powers already under the Crimes Act in the various states and in the commonwealth for the police to detain people. Under our Crimes Act it is possible for the police to arrest people who attempt to commit an indictable offence or who conspire to commit an indictable offence. That is the broad context under which all our other concerns with this legislation fall.

As I said, with regard to preventative detention orders and police detention orders, the bill lowers the threshold for preventative detention in relation to a terrorist act that has not yet occurred from one that must be imminent to one that is capable of being carried out and could occur within the next 14 days. The concern with that is it is a very extensive departure from 'imminent' to '14 days', and it really raises the question of how the decision-maker — in this case, the police — could make the assessment that something could occur within the next 14 days.

The bill strengthens precharge preventative detention orders in terrorism scenarios, providing for a two-stage preventative detention framework which will apply to both adults and children aged above 14 years. An authorised police officer may make a police detention decision authorising a person to be taken into custody and detained without a court order or a warrant for up to four days for an adult and in the case of a child for 36 hours. Secondly, an authorised police officer may also apply to the Supreme Court for a preventative detention order to detain an adult or a child 14 years or over for up to 14 days inclusive of any period of police preventative detention.

The bill does provide some safeguards with regard to this, including periodic reviews of the decision by a senior police officer; an immediate review upon taking a person into custody and at 12-hourly intervals; the involvement of the Public Interest Monitor; and notification of the decision to the Ombudsman, IBAC and, in the case of a child, to the commissioner for children and young people and the Department of Justice and Regulation. There are information requirements, including a person's entitlement to contact a legal representative, for police to document their decisions, oversight on the exercise of powers by the Victorian Inspectorate and requirements with relation to when a person must be released — namely, when the reasons for detention no longer exist.

Even with all of those requirements — and it is good to see those safeguards in place — we still have concerns about the very significant extension of these preventative detention powers, and in particular the non-involvement of a court in the four-day detention, or 36 hours for a child, and given also that we have extended the hours of operation of the courts. Certainly under the previous police bill that we looked at there is already the power for the police to detain a person for up to 48 hours and then take them to a court. Our view is that courts should always be overseeing the detention of any person, and these decisions should not be left up to police in anything but the shortest time without the oversight of a court. Putting in place review by police of their own decisions does not fill me with a lot of confidence.

I thank Liberty Victoria for their comments on this type of legislation as it has been introduced across the country. In their submission to the commonwealth INSLM they quoted Justice Harper in fact, who said, if I could paraphrase, that we should be very careful — and this is a point the Greens are always making — when we are extending police powers and powers of detention, because it is very well understood by those officers, and in this case it is police and PSOs, that they have got those powers. If I could just quote what Justice Harper said, because I think he said it a lot better than I would in this regard:

A similarly acute appreciation of the proper limits of that power is not so easily grasped, because the prospect and actuality of the exercise of power itself tends to dull the imaginative appreciation of its true purpose, and of the effects of its misuse or misapplication. We are too easily duped into an overweening sense of the importance of who we are and what we do.

I think that is a very apposite remark by Justice Harper.

As I said, the bill removes the prohibition on questioning and allows for questioning during both police and court-ordered preventative detention. The framework used in the bill is consistent with questioning that is conducted under the Crimes Act to ensure that people are appropriately cautioned prior to questioning. They have a right to silence, they will be able to contact a legal representative and have a lawyer present, they will have access to an interpreter and in the case of a child they will only be questioned in the presence of a lawyer and a parent, guardian or independent person. But there are many exceptions to this particular power. One of the concerns with the power is the amount of time that a person can be questioned for without breaks, and this is particularly concerning with regard to children, who under this type of questioning by police will be much more vulnerable than an adult, even in the presence of an independent adult and a legal representative.

The questioning may be audiovisually or, if not practical, audio recorded. It is really hard to see in this day and age how something could not be audiovisually recorded — I think pretty well every person owns an audiovisual recorder. It does not seem to me that there would be a situation where that would not be possible. A copy of the recording must be given to the person and there must be reasonable breaks. As I said, there are many exceptions to those reasonable breaks.

Part 3A of the Terrorism (Community Protection) Act enables the chief commissioner to apply to the Supreme Court to exercise the special powers to apparently protect persons attending events from a terrorist act or to prevent or reduce the impact of a terrorist act, and lowers, as I said before, the threshold for that special power to the act being capable of being carried out or could occur within the next 14 days, so consistent with the detention orders under this bill.

The bill enables the chief commissioner or a deputy to make an interim authorisation without the Premier's approval if the Premier is not reasonably able to be contacted. The bill also extends the period for an interim authorisation from 24 hours to 48 hours. This is an issue I also raised in debate on the previous bill in 2015. I do not actually understand why the Premier is involved in this. I would have thought that an interim authorisation order should also involve a court, and at the time I moved an amendment to that effect, that the Supreme Court should be making that authorisation, not the Premier. I really do not understand why an executive officer and a member of the executive government is involved in this at all. I think it is an anomaly that should have been removed earlier in the regime.

The bill extends the application of special police powers to protective service officers. That is concerning because PSOs, by their very nature, their definition and their level of training, are not police. We do not believe extreme powers should be given at all, but there should be differences in the level of powers that can be exercised by police and PSOs, given the level of their roles and the level of their training. That is an issue we have raised in this place, and we first raised it in 2011 when the PSO powers were first extended. I predicted that we would see these powers being extended further and further as we went into the future, and that is exactly what we are seeing happening. My view is that if these powers are needed by police, they should be exercised by police, not by PSOs, and if they are to be exercised by PSOs, then PSOs should undergo the same training as police, which to date they do not.

One of the concerns is the amendment to the Crimes Act 1958, which is an amendment to section 462A of the Crimes Act. The government's expert panel says that it should be put beyond doubt that the ability to use force:

… applies to pre-emptive action, including lethal force, employed in response to a life-threatening act where it may be the last opportunity to safely and effectively intervene …

The expert panel sought to provide greater clarity for law enforcement officers in response to terrorism so that police had clarity as to what situations they were allowed to use lethal force in in order to prevent death or serious injury. The current Crimes Act reads:

A person may use such force not disproportionate to the objective as he believes —

as 'he' believes; there is a rewriting needed there —

on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.

The expert panel's report proposed amending that to add a second section, which would have read:

For the avoidance of doubt, a police officer or protective services officer may use force, including pre-emptive lethal force, against a person who the police officer or protective services officer believes on reasonable grounds is likely to commit an indictable offence that will cause serious injury to, or the death of, another person.

But instead a different example has been used in this bill, such that:

A police officer or protective services officer uses lethal force on a person to prevent that person from committing an indictable offence that involves causing really serious injury or death because the officer believes on reasonable grounds that it is necessary to use that force for that purpose. The police officer or protective services officer may do so before that offence is committed.

The wording proposed by the expert panel was better, if any was needed, than the wording that is in this bill, in my opinion. There is a risk that the procedure outlined in the example may become the accepted guideline for the use of force in serious cases, essentially lowering the threshold for the use of lethal force in some circumstances. The example is also notably not limited to responses to terrorism.

I am also concerned about how that interacts with the Project Beacon training that police have had to undergo after a spate of police shootings, including the shooting of young people and persons with mental illness. For example, an Australian Institute of Criminology report in 2013 found that between 1989 and 2011 police shot 105 people, with 42 per cent of them suffering a mental illness at the time of the shooting. Therefore the issue of proportionality of these laws must be considered because statistically persons with mental illnesses are much more likely to be killed by police than is a terrorist. These are concerning provisions.

The bill also amends the Bail Act 1977 to provide for a presumption against the granting of bail for a person who poses a terrorism risk. It reverses the presumption in favour of bail using the two reverse-onus tests, to ensure that it will be harder for any accused with links to terrorism to get bail, whatever charge the accused is facing, which may not be a terrorism-related charge.

The bill introduces further situations where bail decisions can only be made by a court. Firstly, only a court can grant bail to a person with a terrorism record. The bill also provides that only a court will be able to assess terrorism risk information to determine whether a person poses a risk of committing a terrorism or foreign incursion offence and that only a court may grant bail to persons accused of commonwealth terrorism offences. I am happy that the court is involved in those decisions.

Again, organisations such as Liberty Victoria and others have made several critiques of these new bail provisions, including that the assessment of political views is unrelated to the question of risk; that there is unnecessary complexity, doubling up and confusion as to the appropriate threshold tests and risk assessments relating to terrorism; that there is a capacity to remand people for offending unrelated to terrorism on the basis that they harbour opinions and associations that are otherwise unlawful; and that the breadth of the definition of terrorism in the bill raises concerns about the freedom of political communication. I say that in the context that people may hold abhorrent political views but may not in fact ever act on them, and I would say that is probably most of them.

The bill amends the Corrections Act 1986 to introduce a new presumption against granting parole to any prisoner sentenced with a non-parole period who has been convicted of a terrorism or foreign incursion offence, has been subject to a terrorism-related order, is charged with a terrorism or foreign incursion offence or has been determined by the Adult Parole Board of Victoria to pose a terrorism risk. I do not necessarily have too much of a problem with that, because the serious violent offender or sexual offender parole division of the adult parole board will be responsible for deciding whether or not to grant parole to such prisoners under the two-tier decision-making process that we were talking about on the previous bill, and the parole board will determine whether the prisoner poses a risk based on the relevant information and intelligence they have before them. As I said, they would also be taking into account community safety as a paramount consideration, which the board already has to consider.

It is useful to note that the Australian Federal Police have not used a commonwealth preventative detention order (PDO) since the introduction of the regime in 2005. State and territory preventative detention orders have been used on two occasions — in relation to three individuals in New South Wales in 2014 and one individual in 2015. The police have hitherto said that in very many cases they prefer to use the arrest powers under already existing laws than to use preventative detention orders. I am not sure that this particular expanded regime is necessarily going to change that position, but it will be interesting to see.

The commonwealth is currently considering the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018, which proposes the extension of federal control orders and preventative detention orders for a further three years to 2021, because there was a sunset clause under the act. This also may apply to children over 14 years of age. Criminal Code Act 1995 control orders may apply to children over 14 years of age and PDOs to children over 16 years of age. This was recommended in the more recent reports of the joint committee and the Independent National Security Legislation Monitor (INSLM). I understand the INSLM has changed its view somewhat from 2015.

The Greens are opposing this legislation in the Parliament. My colleague in the Senate, Senator Nick McKim, said:

History is replete with powers being created for a specific purpose that, down the track, become normalised and used for a range of other purposes. The danger here is that control orders could become a new normal — and that, particularly, is true when you fit this piece of legislation into the ongoing and continuing erosion of civil and human rights in this country.

Clearly this bill engages and limits a number of fundamental rights. It is the view of the Greens that the government has not made the case around the necessity of those limitations or in fact whether those limitations are proportionate. Last year the New South Wales Greens also opposed the Terrorism (Police Powers) Amendment (Investigative Detention) Act 2016 No. 17. In fact the Greens have not supported preventative detention orders whenever they have been introduced in either the federal or any state Parliament in Australia.

The Greens do understand that there are increased threat levels in Australia and around the world and that these must be taken seriously, but the Greens also take seriously any laws that diminish our civil liberties and our human rights. Any action that is taken must be clearly shown to be proportionate and necessary based on the risk faced, with adequate safeguards to protect our rights. While this bill makes some sound changes with regard to things such as information sharing between agencies and potential risks to the community, in our opinion the major changes in the bill are not proportionate or necessary and have inadequate safeguards to protect our rights. There is little evidence that we need the new powers the bill proposes over and above what had already been put in place in 2015. Anyone who reads this bill would clearly see how its proposals would diminish our human rights and civil liberties, the rights of children and long-established protections of our legal system. These have been hard-won and are being eroded bit by bit by legislation that I have seen pass through this Parliament in the last decade.

The bill enacts many recommendations of the Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers report, but it does not implement all of them. Again the government picks some of the recommendations and implements them but not all of them. With regard to detention orders, the bill skips recommendations 22 and 23 of the expert panel, which advise that the Supreme Court should only impose a preventative detention order on a child if it is satisfied that less restrictive means for their detention do not exist, nor does the bill ask that similar considerations be made by police in effecting a police decision on a child. For example, the bill could suggest that in order to prevent the potential destruction of evidence by a child the police first ask for any evidence to be handed over instead of imposing a preventative detention order. This oversight was criticised by Victoria's children's commissioner.

The bill is also silent on providing adequate supports for the reintegration of a child who is released from preventative detention, in order that the potential trauma from such an incident does not affect their subsequent development. The essential need for such supports is also discussed in report 2 of the expert panel.

The government is yet to show us a comprehensive review of programs to reduce recidivism, including the court integrated services program (CISP) services aimed at reducing violent extremism, nor has the government demonstrated any indication of investigating emerging forms of terrorism. Both of these issues are covered in detail in the expert panel's report but have been ignored.

Serious questions need to be asked about the adequacy of the safeguards in the bill with regard to the questioning of offenders during police and preventative detention for adults and children, which I mentioned earlier. New sections 13AZC and 13ZNB proposed by the bill allow the right to question a detainee under police preventative detention or a preventative detention order. The safeguards in terms of the duration of the questioning are incredibly broad in that they state only that reasonable breaks must be given and a person must be given a rest from questioning for 8 hours every 24 hours of detention. Such protections could potentially allow a team of police to interview a 14-year-old child every hour for 16 hours straight, with only small breaks in between.

The bill allows for detainees to communicate with lawyers and consular officials, and questioning must be deferred until such persons can be contacted. However, the exceptions to these protections are so similar to circumstances that would cause predetention to be considered in the first place that they would render these protections irrelevant in practice. For example, there is an exemption if the questioning is so urgent, having regard to the safety of people, that it should not be delayed, which would likely cover every predetention terrorism-related event. Other sections provide police with the powers to lock out lawyers if they are 'interfering' in the questioning, which I would have thought would be the role of a legal representative for someone who is being questioned by police, particularly a child.

The special protections afforded to children during questioning can also be easily sidestepped. These include the fact that a parent, guardian or independent person must be present and consulted by the detainee prior to the questioning, and that Victoria Legal Aid must be requested to provide a lawyer if none is nominated by the child. However, the same exemptions with regard to urgency apply, as do those of interference of lawyers, meaning that a circumstance of a child being questioned without a third party or lawyer present are reasonably likely under this bill.

Regarding special police powers, the bill is consistent with the recommendations of the expert panel. However, the panel adds the caveat that the PSOs' new powers must be accompanied by requisite training, as I mentioned before. It is critically important that this additional training is meaningful and adequate. As I mentioned before, this bill adds to the mission creep in relation to PSOs from their original function, which I predicted in 2011, and the complexities of the 2017 PSO bill in terms of the state now managing and coordinating the separate jurisdictions of private security, PSOs, police and authorised officers, who are all operating concurrently in Victoria.

I mentioned the lethal force powers and the concerns about the use of those, particularly for people with mental illnesses, who are disproportionately shot or injured by police. We see examples of this all too frequently. Quite recently Victoria Police have been involved in assaulting people with mental illnesses. Minority groups, who may be perceived to be more likely to be part of or in the process of committing a terrorist action may face an additional risk if lethal force is applied following the example in the bill, and we have received some representations from the Islamic Council of Victoria, for example, regarding the operation of this bill.

The community should be aware that the amendments in the bill will lead to subsequent changes in the operational training and instruction of law enforcement officers around the use of lethal force. As I said before, such changes may contradict the efforts of Victoria Police to be better trained — for example, with the Project Beacon training on the containment and de-escalation of threats. It is also concerning that this lethal force example will apply both to PSOs and to police.

The bill does provide, as I mentioned, for better information sharing in relation to terrorism risk. Presuming this information is used correctly, this can help to protect the community and make it safer. This is something I have raised before in debates on similar bills in this place. I have previously spoken on the importance of adequate information sharing in terms of ensuring the mental health and reintegration of ex-offenders on their release from prison. The sharing of relevant terrorism information in the criminal justice system may also lead to more timely and effective participation of offenders in programs such as the CISP deradicalisation program.

With regard to bail, it is logical that bail decision-makers should receive all information relevant to a bail decision, including security information as per the bill, so we are supportive of that. It is important that this information is only relevant to the central assessment of risk to the community, though. Needlessly holding people on remand will result in practical and principled issues similar to those currently being experienced in Victoria, while not necessarily making us safer. We have had an explosion in people being held on remand in the prison system. This is causing a lot of issues. We must remember that those people held on remand, sometimes for a very long time, can later be found to have not committed any offence whatsoever, but they have still been held in a secure facility.

The supervision of offenders under parole conditions is preferable to the later release of offenders without such conditions. Parole has been shown, as I have said before, to be the most effective way of reducing the risk of recidivism, which correlates with safer communities. Parole needs to be well supervised and people need to be well supported in terms of reintegration. I talk about that with regard to people who have committed lower level offences. As I mentioned earlier, I support the part of the bill where the people who have been convicted of these offences will face that two-step process that is in place with the parole board.

Apart from some aspects of the bill which the Greens are not opposed to, we are opposed to the extension of prevention detention orders to children in the circumstances that are laid out in this bill — and to the extension of them at all, given they have hardly been in place long enough under the new regime to see how they are working and, as I said, given their lack of use in any jurisdiction in which they have been put in place. Also, we are opposed to the significant erosion of our rights and the inadequate safeguards and oversight. Even though there are some safeguards and there is some oversight in this bill, it is not adequate or proportionate to the powers that have been given to the police. There is inadequate oversight and safeguarding of these extreme powers that have been extended to the police.

I go back to my original point: there are already offences in our existing Crimes Act which police can use to arrest people and which include the proper oversight of the courts, which is absent from this bill. The Greens will not be supporting this bill.