2015-12-08
In committee:
The DEPUTY PRESIDENT — Order! Ms Pennicuik has previously circulated a number of amendments, including proposed new clauses.
Clause 1
Ms PENNICUIK (Southern Metropolitan) — In anticipation of the amendments that I have circulated and will be moving this afternoon, I just want to say that I have outlined in my contribution to the second-reading debate the purposes of the amendments and where they have come from. Because a week has passed, I would like to just remind members.
There have been many reviews, including the statutory review, which we have been referring to as the Jones review, into the state Terrorism (Community Protection) Act 2003. There have also been reviews at the commonwealth level. Although in my second-reading contribution I mentioned that the statutory review conducted on the Victorian act would have benefited from a bit more public exposure than it had, I take no issue with the conduct of the review itself. In fact it made a great many good recommendations to improve the act, some of which are taken up in this bill.
It is worth saying that while everyone is concerned about the threat of terrorism, reviews have also been undertaken at the federal level and in particular the Council of Australian Governments (COAG) review of counterterrorism laws recommended that they be repealed. The independent national security legislation monitor also said that preventative detention orders are not effective, not appropriate and not necessary and that they duplicate existing provisions that are already in place under the crimes acts in terms of the powers that the police and intelligence agencies already have.
These acts around the country put in place very strong powers. While the Victorian act does have some minimal amelioration in terms of oversight of the Supreme Court with regard to covert warrants and the issuing of preventative detention orders, which I would suggest is the minimum, it does not apply to the issuing of special police powers. As I said, there are already powers in existence throughout the states and in the commonwealth in the existing criminal codes that can be used. As I outlined in my contribution to the second-reading debate, they are being used in fact, rather than needing to use these particular powers, because the various law enforcement agencies are finding the existing powers more effective.
Some of the amendments that I will be moving today mirror provisions that already exist in the federal legislation and in other states and territories, or have been recommended by the statutory review, by the COAG review or by bodies such as the Law Institute of Victoria and Liberty Victoria.
I have taken quite a bit of time to look at what has been recommended by the other reviews and to look at the Victorian act in terms of where provisions exist that do ameliorate or provide more oversight of the provisions, in particular in the commonwealth act, or where particular issues have been pointed out as being not appropriate. These are the bases of the recommendations and I just wanted to put forward that context in our discussion of clause 1.
Clause agreed to; clauses 2 to 4 agreed to.
Clause 5
Ms PENNICUIK (Southern Metropolitan) — My amendment 1 goes to the question raised by Ms Patten with regard to covert search warrants. I move:
1. Clause 5, page 3, after line 6 insert—
'(4) After section 9(1) of the Principal Act insert—
“(1A) The operation of electronic equipment by way of remote entry under subsection (1)(fa) does not include the addition, deletion or alteration of data, or the doing of anything that is likely to—
(a) materially interfere with, interrupt or obstruct a communication in transit, or the lawful use by other persons, of electronic equipment unless the doing of the thing is necessary to do one or more of the things specified in the warrant; or
(b) cause any other material loss or damage to other persons lawfully using electronic equipment.”.'.
Previously covert search warrants basically meant seizing or looking at people's equipment while the person was not present. The provision in the bill allows covert surveillance of electronic equipment from a remote location. In some ways you would say that is what technology allows for now. As Ms Patten said, it is probably in some ways safer for law enforcement agencies to be doing that rather than going into a premises. However, it raises three questions. One is the existing powers that intelligence agencies already have with regard to this power; secondly, because it is easier, it does sometimes mean that they are used more often; and thirdly, of course, innocent people can be caught up under these types of powers. We always need to be judging against that measure whilst balancing the need to be monitoring the activities of those who may be planning terrorist activities. Of course, as I have said, laws already exist enabling us to do that.
The particular question my amendment goes to is to provide some extra protection with regard to the use of those covert search warrants by adding new section 9(1A) into the act, which would read:
The operation of electronic equipment by way of remote entry under subsection (1)(fa) does not include the addition, deletion or alteration of data, or the doing of anything that is likely to—
(a) materially interfere with, interrupt or obstruct a communication in transit, or the lawful use by other persons, of electronic equipment unless the doing of the thing is necessary to do one or more of the things specified in the warrant; or
(b) cause any other material loss or damage to other persons lawfully using electronic equipment.
As I mentioned earlier, this is not something I just made up; it is a provision that exists in similar federal and New South Wales legislation. It would prevent anything from occurring except what the warrant is issued for, which is basically looking at the information to see what is there rather than seeing whether communications of a certain type are occurring et cetera, but not actually interfering with the communications, particularly, as my amendment says, in terms of the lawful use of the electronic equipment by the owners or other people who use that equipment. Given the context I outlined before, this is an extra protection that could be added to the monitoring legislation under existing provisions.
Ms PENNICUIK (Southern Metropolitan) — What the minister says has validity, and what I am saying has validity too. I was very careful with this amendment to use a provision that exists at the federal level. It will not prevent anything that is in this bill from happening. It just adds more clarity to the powers.
Ms PENNICUIK (Southern Metropolitan) — I move:
3. Clause 10, after line 21 insert—
'(3) After section 13W(10) of the Principal Act insert—
“(11) A person detained under a preventative detention order in a prison must not be held with a person convicted of a criminal offence.”.'.
This amendment to clause 10 inserts after section 13W(10) of the principal act a new subsection (11), such that a person detained under a preventative detention order in a prison must not be held with a person convicted of a criminal offence.
I have a following amendment, amendment 5, and I would like to speak to these two amendments together because they relate to each other. Amendment 5 proposes inserting a new clause to follow clause 10 to provide an arrangement for a detainee to be held in a youth justice facility. After section 13WA(9) of the principal act the new clause would insert new subsection (10), such that a person detained under a preventative detention order in a youth justice facility must not be held with a person convicted of a criminal offence.
The reason for these particular amendments is that many concerns have been raised both within the legal fraternity and by people who deal particularly with young persons held in youth justice facilities. While I am addressing both amendments, probably the most important one relates to the youth justice facility.
Under the act people over the age of 16 can be held under preventative detention orders (PDOs), and there is a concern that persons, particularly adults, can even be held in a prison under a preventative detention order rather than in a police jail. For young persons over the age of 16 and up to the age of 20 who are held under a preventative detention order and have not been charged or arrested it is very important that they not be held with convicted criminals but in a separate facility. There is nothing in the act that sets out a provision for a separate facility or arrangement away from the prison system, so that is what these two amendments seek to have inserted into the act so that persons held under these provisions are not in contact with people convicted of crimes, and in particular serious crimes, because in many cases these persons will be found to have not done anything; they will not be arrested or charged with any crime.
These are preventative provisions and are issues that have been raised with us in discussions with Liberty Victoria and the Law Institute of Victoria. In fact the law institute in its submission on the original legislation made a comment that to do so was against international law.
Ms PENNICUIK (Southern Metropolitan) — This amendment went to the issue of the safeguards under the Children, Youth and Families Act 2005 with regard to young persons held in detention who are either charged or convicted of a crime. So they are different to young people who have not been either charged or convicted of a crime.
In my contribution to the second-reading debate I raised some deficiencies. What the minister said about people being treated humanely and with dignity applies to all prisoners and people in detention, particularly those held in youth justice facilities.
Some issues have been raised by the Scrutiny of Acts and Regulations Committee (SARC) with regard to some deficiencies in the act. Parts of the Children, Youth and Families Act are exempt under the act, in particular section 493. In my second-reading contribution I also raised the fact that SARC mistakenly referred to the wrong provisions. It is particularly section 493 that should apply.
I know the government is going to be considering bringing in more amendments that flow from the statutory review, so I ask that the government look carefully at the provisions in the Children, Youth and Families Act that apply to young people on PDOs, because there are some gaps there and this is one of them.
The minister is saying, 'It might not be practical or possible', but given that very few PDOs have ever been granted or used I find that a little difficult to agree with.
Ms PENNICUIK (Southern Metropolitan) — I regard amendments 3 and 5 to be related, as we have discussed, so amendment 3 would be a test for amendment 5. It is basically the same issue.
DEPUTY PRESIDENT — Order! I understand Ms Pennicuik wishes to postpone moving her amendment 4, which deals with clause 11.
Ms PENNICUIK (Southern Metropolitan) — I wish to postpone consideration of my amendment 4, which deals with clause 11. My amendment 8 deals with the section of the act that clause 11 refers to.
New clause C
Ms PENNICUIK (Southern Metropolitan) — I move:
7. Insert the following New Clause to follow clause 10—
'C Annual report
In section 13ZR(2) of the Principal Act—
(a) in paragraph (f), for “made.” substitute “made;”;
(b) after paragraph (f) insert—
“(g) the number of persons in relation to whom a preventative detention order was made who were 16, 17 or 18 years of age at the time the order was made;
(h) the number of persons other than Australian citizens in relation to whom a preventative detention order was made;
(i) the number of persons in relation to whom a preventative detention order was made who, at the end of the period for which the person was detained under the order, were arrested.”.'.
This amendment relates to the annual report under section 13ZR(2) of the principal act. It aims to insert three paragraphs to include more information in the annual report. In particular, under new paragraph (g) the number of young persons or minors who have been the subject of a preventative detention order would be included in the annual report. This amendment seeks increased transparency with regard to the use of preventative detention orders. There are already six other categories for which the annual report must include information under the act.
Ms PENNICUIK (Southern Metropolitan) — I hear the minister's answer. I am surprised that the government will not accept this amendment because it follows on from the provisions that are already in section 13ZR(2) of the principal act. The section provides what the report should contain, including the number of preventative detention orders made by the court; whether a person was taken into custody or detained under those orders — sometimes orders are made and never executed and that is how we know that several orders have been made but never executed; the number of persons in relation to whom a PDO was made who were charged; any complaints made to the Ombudsman; any complaints made to the Independent Broad-based Anti-corruption Commission, although my copy says to the director of police integrity under the Police Integrity Act 2008; and any investigations by IBAC.
It also includes the number of prohibited contact orders made and the number of preventative detention orders that a court has found to be invalid, which would include the number of people who are minors, the number of people who are not Australian citizens and the number of people who are subsequently arrested. It is all in keeping with what is in the act, but it adds a bit more transparency and understanding for the community as to how the particular PDOs are being ordered. The amendments being put forward are not outside the scope of the provisions of the act.
New clause D
Ms PENNICUIK (Southern Metropolitan) — I move:
8. Insert the following New Clause to follow clause 10—
'D Sunset provision
(1) In section 13ZV(1) of the Principal Act, for “at the end of 10 years after the day on which section 4 of the Terrorism (Community Protection) (Amendment) Act 2005 comes into operation” substitute “on 31 December 2018”.
(2) In section 13ZV(2) of the Principal. Act, for “the end of 10 years after the day on which section 4 of the Terrorism (Community Protection) (Amendment) Act 2005 comes into operation” substitute “31 December 2018”.'.
In effect, this amendment adds a new sunset provision that would apply to preventative detention orders (PDOs). Under the bill clause 11, which was postponed, would repeal section 13ZV, a sunset provision on preventative detention orders. As I mentioned during the second-reading debate, preventative detention orders is a live issue. The Council of Australian Governments review recommended that these orders be repealed in the commonwealth act and in the various state and territory acts.
I also want to mention that a new sunset provision on preventative detention orders has been included in the commonwealth act and this has been extended to September 2018. I have taken my lead from that act and used 31 December 2018 in my proposed amendment, which would take effect three months after the sunset provision in the commonwealth act. This would keep us in line with what is happening at the commonwealth level.
The Greens believe it is important to keep the sunset provision on preventative detention orders in place and also that a review of those orders should take place prior to the sunset provision coming into effect.
New clauses E and F
Ms PENNICUIK (Southern Metropolitan) — I move:
9. Insert the following New Clauses to follow clause 12—
'E Authorisation of special powers to protect essential services from a terrorist act
(1) For section 21F(1) of the Principal Act substitute—
“(1) The Supreme Court, on the application of the Chief Commissioner of Police, may make an order authorising the exercise of special powers conferred by this Part.”.
(2) In section 21F(2) of the Principal Act, for “relevant Minister may only recommend the making of an Order” substitute “Supreme Court may only make an order”.
(3) Section 21F(4) of the Principal Act is repealed.
F Duration of authorisation
In section 21I(3) of the Principal Act, for “the first anniversary of” substitute “60 days after”.'.
These are new clauses to follow clause 12 that insert a new section 21F into the principal act. Currently the authorisation of special powers to protect essential services from a terrorist act reads:
(1) The Governor in Council may, on the recommendation of the relevant Minister made with the approval of the Premier and in accordance with the advice of the Chief Commissioner, by Order published in the Government Gazette give an authorisation for the exercise of special powers conferred by this Part.
And it goes on with other provisions. While I fully understand the need to perhaps declare areas around essential services as needing to be protected, I would like to see that authorisation in keeping with the rest of the act — that is, overseen by the Supreme Court — such that new section 21F(1) would read:
The Supreme Court, on the application of the Chief Commissioner of Police, may make an order authorising the exercise of special powers conferred by this Part.
New clause E also provides:
(2) In section 21F(2) of the Principal Act, for “relevant Minister may only recommend the making of an Order” substitute “Supreme Court may only make an order”.
The other provision to be inserted is that the authorisation is for 60 days and can be repeatedly applied for. As I pointed out in my contribution to the second-reading debate, in other acts around the country these declarations of areas around special powers last for between 7 and 28 days. Under the Victorian act it lasts for a year.
The other concern is that the declaration is to be made by the executive government rather than by the court on the application of the police, which should be the proper way for any orders being made for declarations of areas for police to exercise special powers. In my contribution to the second-reading debate I made the point that this would be in keeping with the rest of the act, when the Supreme Court issues preventative detention orders and also oversees the issuing of covert search warrants. I think that the issuing of any of these orders or warrants under the act should be overseen by the Supreme Court for consistency and that the executive government should not be declaring areas for police activity. It is best that there is a separation of powers between the executive and the police overseen by the courts.
Ms PENNICUIK (Southern Metropolitan) — It is possible for the Supreme Court to act very quickly as well, just as quickly as seeking permission from the minister, the Governor in Council and the Premier. I do not agree with the minister's explanation. The court can act very quickly when needs be.