Terrorism (Community Protection) Amendment Bill 2015

Ms PENNICUIK (Southern Metropolitan) — The Terrorism (Community Protection) Amendment Bill 2015 makes some changes to the Terrorism (Community Protection) Act 2003, which was enacted in this Parliament before I was elected, so this is the first substantial opportunity I have had to deal with amendments to that regime.

Counterterrorism legislation of this sort exists in Australia as part of a nationally agreed framework of commonwealth legislation and complementary legislation in the states and territories. The various powers that exist in the Victorian act include: the use of covert search warrants — currently these are issued for entry to a property when the owner of the property is not there; the use of preventative detention orders (PDOs) and prohibited contact orders; police powers to detain and decontaminate persons; special police powers, such as search-and-seizure powers; cordoning off target areas; and protection of counterterrorism information are the main areas covered by current Victorian legislation.

Last year there was a statutory review of this legislation, which was required under the act, and the report of that review was tabled in September last year. The committee that conducted that review was a three-person committee chaired by His Honour David Jones, a former County Court judge, and the other members were Lieutenant General Mark Evans, retired from the Australian Defence Force, and a former deputy commissioner of Victoria Police, Kieran Walshe.

We are told consultations were held with relevant organisations — Victoria Police, the Australian Federal Police, the Australian Security Intelligence Organisation, the Public Interest Monitor, the Victorian Inspectorate, the Department of Justice and Regulation, WorkSafe Victoria and the Department of Premier and Cabinet. The review also referred to the 2013 Council of Australian Governments (COAG) review of counterterrorism legislation in Australia. David Jones was a member of the COAG committee.

The Victorian review had access to the submissions to the COAG review and a transcript of the public hearings. Submissions were made to the Victorian review by the Human Rights Law Centre, Victoria Police and His Honour Judge Maidment, a judge of the County Court. The Victorian review was also cognisant of the role played by the Independent National Security Legislation Monitor, or INSLM, which assists the commonwealth minister to review the commonwealth legislation with regard to a national approach including the commonwealth, states and territories.

I have read the Victorian review. Without casting any aspersions on it, in future a review of this type of legislation should perhaps be better promoted to the public, and perhaps even conducted by a committee of the Parliament. This review did not involve the public in any meaningful way, just organisations. With this type of legislation the public needs to be more involved in discussions about the effects it will have, as Mr Rich-Phillips mentioned in relation to the rights and freedoms of Australian citizens.

Since this bill effectively re-enacts the whole act, the minister provided a fairly lengthy statement of compatibility, and the Scrutiny of Acts and Regulations Committee provided a comprehensive report, which I will refer to later. The bill extends the sunset provision from March 2016 to December 2021 — by five and a half years. It also provides for another statutory review of this legislation to take place a year before that date. I hope the 2020 review will include more public involvement than the one carried out last year.

This bill implements 6 of the 13 recommendations of the Jones review. It extends the use of covert search warrants, which need to be approved by the Supreme Court, to allow remote access to electronic equipment without police having to enter the premises where the computer is held. Annual reports will need to include information on the number of occasions on which electronic equipment has been accessed remotely. The definition of 'vehicle' will be amended to include a vessel and an aircraft. There are changes to the preventative detention order (PDO) such that the liability for the welfare of a person subject to an order will transfer to the authority responsible for their custody — an adult prison, a juvenile authority or the police, as the case may be.

Under this bill the police will be able to use a person's alias when applying for a preventative detention order. This is to overcome problems that arise when police do not know the true identity of a suspect. That was recommendation 7 of the review.

Concerns have been raised about that particular provision in that it may increase the risk of mistaken identity — the person is being detained under a PDO by way of an alias and the wrong person could possibly be detained.

Under the bill police must now apply to the Supreme Court for a revocation or variation of a PDO when they are satisfied that circumstances underpinning the original application have changed. If the detaining officer becomes satisfied that the grounds on which a PDO was made have ceased to exist, the detainee must be released without delay. These are slight amendments to the regime of PDOs.

As we understand, six of the remaining recommendations made by the Jones review are still under consideration. We are told that some of those are subject to ongoing discussions between the commonwealth and states and territories with regard to their differing regimes.

The government has, however, also said that it will not be implementing recommendation 4 of the review, which would provide for delayed notice to be given to an occupier of a premises or any adjoining premises that are the subject of an executed search warrant. The government has suggested that this would subvert the object of the covert warrant process. However, there have been many criticisms of the non-implementation or the stated non-implementation of that recommendation by the government in that while it could be put in place with the regime, the court could oversee the applications for delayed notice. However, at some stage it would be appropriate to give that notice.

Recommendation 5 from the review that is still awaiting consideration by the government is:

That consideration be given to the creation of an oversight role for the Victorian Inspectorate with respect to the use of the covert search warrant power under part 2 …

The government says it supports that in principle.

Recommendation 6 is:

That the provisions in the Terrorism (Community Protection) Act 2003, relating to the requirement that a terrorist act be imminent and expected to occur, in any event, at some time in the next 14 days, be amended along the lines recommended by the —

independent national security legislation monitor, so that the 14 days be changed to wording such as 'that the issuing authority be satisfied as to the possibility of a terrorist act occurring sufficiently soon as to justify the action being taken'.

Recommendation 8 is that the act:

… be amended to provide that, where an investigation or intelligence agency seeks to have a person released from detention for the purpose of questioning, the authorised officer must return to the Supreme Court for a variation of the order.

So that is just increasing the oversight by the Supreme Court under the act.

Recommendation 12 is that the provisions relating to special police powers — which are that the chief commissioner needs to be satisfied of the threat of a terrorist act occurring in the next 14 days, and that the Supreme Court also needs to be so satisfied — be amended along the lines recommended by the independent security legislation monitor with respect to the preventive detention power requirement. The government says that it will consult further to develop an amendment that most appropriately meets that policy objective.

Recommendation 13 is that the Victorian Inspectorate be given oversight powers with regard to special police powers.

When Mr Rich-Phillips and government members spoke on this bill and when the original legislation was enacted in the commonwealth parliament and in the states and territories the rhetoric, the argument given, was that we needed these powers to prevent terrorist events occurring.

At the time, since then and even very recently, in reviews that have been conducted by the states and the commonwealth into these regimes the use of preventative detention orders has been brought into question not only because, as Mr Rich-Phillips said, we always need to be careful about infringements on people's rights and liberties but also because there are doubts as to whether they are effective at all in their stated purpose. The fact that they have rarely been used points to the dubiousness of their effectiveness in their stated purpose of preventing a terrorist event.

Under the act as it stands preventative detention orders can be issued by the Supreme Court on the application of the police, and it can authorise that a person can be taken into custody and detained for up to 14 days. The Supreme Court can only grant an application if it is satisfied on reasonable grounds that the person in relation to whom the order is sought will engage in a terrorist act; possesses or has under his or her control a thing connected with the preparation for, or the engagement of a person in, a terrorist act; or has done an act in preparation for, or planning, a terrorist act. The court must be satisfied that making an order would substantially assist in preventing a terrorist act occurring and that detaining the person for the period for which the order is sought is reasonably necessary for that purpose.

These powers have not been widely used in Victoria. In fact I think they have only been used once, and that was this year. Despite the law having been enacted more than a decade ago, the police successfully sought their first preventative detention order in April this year in relation to the alleged planned attack during the Anzac Day commemorations. Similar powers have been used on several occasions in New South Wales. Despite their infrequent application, the minister says recent events and the evolving threat environment demonstrate the need to retain these powers. All other jurisdictions have similar powers. Whilst a majority of the review committee concluded that the powers should be retained, a minority view of that committee — given that only three people were conducting the review — said the powers were not needed.

More specifically, concerns have been raised in relation to the preventative detention orders, which this bill provides for the extension of in conjunction with the rest of the powers under the act until 1 December 2021. The independent national security legislation monitor stated that the use of existing arrest powers would be preferable to a PDO in virtually every circumstance, and whilst they involve a high threshold, the complexity of their provisions brings into question their efficacy. He went on to recommend improvements to them if they were to be retained, and while some of those improvements are in this bill, they are only slight improvements to the regime.

While the review committee majority considered that the preventive detention power is necessary, adequate and effective and also that the recommendations as to the amendments are necessary, a minority review did not consider the preventive detention power necessary or effective. The reasons for the minority taking that position are in essence similar to those expressed by the majority of the Council of Australian Governments committee and the INSLM — that PDOs are not necessary when having regard to the range of other powers that are already available to law enforcement and intelligence agencies.

In a recent article for the University of New South Wales Law Journal called 'Preventative detention orders in Australia', Svetlana Tyulkina and George Williams assert that there is no need for PDOs in Australia. The article states:

No gap in the existing law has been identified as needing to be filled, nor has any explanation been provided as to why existing police powers and traditional criminal procedures are insufficient.

Analysis of preventative detention legislation in other nations also fails to establish a rationale for PDOs. No such precedent exists in the United Kingdom or other comparable nations, and in the absence of a clear justification the PDO regime cannot be described as necessary or proportionate.

The existing laws are those laws that I raised earlier during the debate on the Criminal Organisations Control Amendment (Unlawful Associations) Bill 2015, such as section 321M of the Crimes Act 1958, which says that it is an offence to attempt to commit an indictable offence. Under section 321 of the Crimes Act it is an offence to be involved in a conspiracy to commit an offence. So those offences already exist. Liberty Victoria also opposes the use of preventative detention orders, along with the other powers under the act, and is of the view that the whole act should be left to expire as there is no justification for the laws and also nothing with regard to their effectiveness.

I have taken the opportunity during my research on this particular legislation to read through the principal act — that is, the Terrorism (Community Protection) Act 2003. It is rather a long act. As well as this being a complex area of law, it is a very complex act. There is an awful lot of cross-referencing in that act, and there are very long parts with confusing nomenclature, to say the least.

One thing I will say about the act is that the Supreme Court is involved in the key areas of the act with regard to the issuing of PDOs and the issuing of covert warrants, so it is good that there is some oversight by the Supreme Court so that none of those parts and none of those provisions can actually be used without the court agreeing to the order as applied for by the police. There is one particular area, though, where that is not the case, and that is with regard to the special powers under section 21F(1) of the act. The use of special powers to protect essential services from a terrorist act can actually be declared by the Governor in Council on advice of the minister made with the approval of the Premier, and that is not overseen by the Supreme Court.

I take this opportunity to say that the Greens have some amendments to the bill to propose in committee, and I am happy to have those circulated now as one of them refers to this particular provision.

Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.

Ms PENNICUIK — One of my amendments relates to section 21F(1) of the principal act and would provide that, under that section, the Supreme Court would make orders authorising the exercise of special police powers rather than those orders being authorised by the Governor in Council or the Premier. That is an important amendment to make to this bill because, firstly, it fits with the rest of the regime, which is overseen by the Supreme Court, but also it provides for the separation of powers between the executive and the police.

In fact the executive should not be directing the police to exercise special powers. Again, that should be by the application of an order authorised by the court, as is the case with the rest of the bill. As I say, this is a very complex area of law, with differing opinions as to whether the laws go too far by undermining fundamental human rights and the nature of community safety and national security, but also as to whether they are effective.

One of the other amendments that I do have to the legislation is with regard to preventative detention orders. I will refer to some of the comments by stakeholders and commentators and by COAG and INSLM about preventative detention orders as to their effectiveness as well as their effect on human rights and civil liberties. This bill changes the sunset provisions for the act but it also repeals the sunset provisions for PDOs. Liberty Victoria and others have said that it is not a very good idea and that in fact there should be a sunset clause with regard to that part of the bill that allows for preventative detention orders.

I note that the federal legislation has a sunset clause on PDOs that has been extended to September 2018. I have an amendment in my suite of amendments to extend the current sunset provision on PDOs to 31 December 2018, three months after the sunset provision in the commonwealth legislation. I think it is important that we reinstate that sunset provision to allow for a review to occur, given that under the act there is a requirement for an annual report on the part of the act that relates to PDOs, so we can keep an eye on whether they are still needed.

The Greens have not supported preventative detention orders whenever they have been introduced. When they were introduced in legislation in the federal Parliament in December 2005 the Greens did not support them. As recently as 2013 the New South Wales Greens also did not support preventative detention orders or changes to that regime. This year changes to the regime in the Tasmanian Parliament were not supported by the Greens. In the South Australian Parliament just last month, Greens MLC Mark Parnell put forward a review provision into a South Australian bill, and that was supported by the Liberal Party in South Australia.

We remain concerned about the lack of any substantive evidence of the necessity of counter-terrorism laws over and above existing criminal laws, as I have mentioned. We acknowledge that the assessment of the current risk of terrorism is that a terrorist attack is possible in Australia. We understand that the review undertaken by the Department of Prime Minister and Cabinet this year stated that the metrics were worsening, and COAG reports that the Australian Federal Police (AFP) and the Australian Security and Intelligence Organisation submissions say that Australia remains a target for a small range of individuals and groups that promote their belief systems and seek to destroy our democratic way of life.

But the COAG review also says:

Of course, we accept, at the same time, that the threat of a terrorist attack in Australia should not be overstated or exaggerated.

I want to speak a little bit more about preventative detention orders. I again refer to the University of New South Wales law article that I referred to earlier, which reviews the COAG review and the INSLM report as well. It states:

All up, the evidence shows that no clear purpose for the PDO regime was ever articulated in public.

It also says that when they have been introduced in the commonwealth Parliament and the state Parliaments there has been:

an inadequate opportunity for considered debate on the many aspects of the bill, including as to whether a PDO regime was needed in the first place.

Comments about the human rights concerns and safeguards include that Australia's PDO regime can be characterised as extraordinary in its nature, particularly with respect to its potential impact on fundamental human rights; and that significant periods of detention without charge lie beyond the bounds of what would normally be considered reasonable in a liberal democracy and is a power more commonly found in undemocratic regimes lacking basic rights. As I said, it does not exist in the United Kingdom or any other comparable nations. PDOs were first introduced into Australia in 2005 and lay unused until 18 September 2014, which is nearly 10 years after they were introduced. As I mentioned earlier, they were first used in Victoria this year. That particular order was made against a young individual — an 18-year-old — who was released from the PDO only to be immediately arrested and charged with planning a terrorist attack. It is interesting to note that even the police, in particular the Australian Federal Police, have indicated that they would prefer to use arrest powers in almost every case. The fact that these powers have hardly ever been used indicates that. The law article states:

… the 2013 COAG review and the 2012 INSLM report … both recommended that division 105 —

that is, PDOs —

be repealed. The COAG review went further still by also recommending the repeal of the complementary state and territory legislation.

The recommendations for repeal reflected the view of those reviewers, as well as the NSW Ombudsman, that the PDO regime was a 'dead law' because of a number of problems.

…

Indeed, the INSLM was provided with 'no material or argument demonstrating that the traditional criminal justice response to the prevention and prosecution of serious crime through arrest, charge and remand is ill-suited or ill-equipped to deal with terrorism'.

…

Similarly, the South Australian government and police gave evidence to the COAG review that existing law enforcement powers 'would almost certainly be used ahead of the preventative detention legislation'. They described the PDO regime as 'complex', 'restrictive' and 'not usable in its current form'.

The requirement that the suspected terrorist attack is going to occur within 14 days is one of the key problems with the regime in that people are unable with any accuracy to predict that. The article further states:

The INSLM, for example, argued that this provision limits the efficacy of the PDO regime because '[p]ractically, it is impossible to guarantee that an event will occur. A police officer simply cannot attest that a terrorist act is expected to occur within a fortnight irrespective of any intervening event'.

Also, as the article states:

The INSLM referred to a discussion with AFP officers at a private hearing at which it was 'strongly suggested that “in a real, practical urgent sense” the ability to arrest a person is a more efficient and effective process for dealing with imminent terrorist threats than the complex and time-consuming process of a PDO'.

An interesting part of the principal act, section 13ZK, that people may not even be aware of, says that a police officer is expressly prohibited from questioning a person detained under a PDO. A complete ban applies even if the detained person wishes to cooperate and provide information that may assist in preventing a terrorist attack. This prohibition is present in both the federal and state and territory legislation, which is another reason the police have not used it. If they can arrest somebody, they can question them and get more information. That is why this legislation has in fact only ever been used once in Victoria. They are some of the real concerns that have been raised around the country on the preventive detention regime.

I turn briefly to the concerns raised by the Scrutiny of Acts and Regulations Committee (SARC) about this bill we have before us — or some of them. As I said, the principal act is complex, and this bill is complex. The statement of compatibility report did not just go to the bill; it went to the whole act, and as I said, it is very long and very complex.

In particular I want to raise concerns about provisions in the Children, Youth and Families Act 2005 being specifically excluded with respect to the detention of persons in a youth facility under a preventive detention order. There was some confusion. In fact, SARC raised a concern about what it said was section 497 of the act, a section it said made it an offence for a person who has a duty of care with respect to a child to intentionally fail to protect that child from significant harm et cetera. We were following this and looking for that particular section, and it is not that section. In fact, we found out, by going through the act, that it is in fact section 493 of the Children, Youth and Families Act. It is very important, because this terrorism act allows for the preventive detention of people over the age of 16, so they are covered by the terrorism act in terms of how they are to be treated when they are detained.

I would draw the attention of the government to the concerns raised by SARC, even though the committee has made a mistake, I believe, with regard to the section. The relevant section of the Children, Youth and Families Act is section 493, and it does go into some detail about how a young person should be looked after. The problem with that is that this terrorism act, as it stands, exempts the person who is holding a young person from complying with that section of the Children, Youth and Families Act.

I would say to the government that I know it is going to bring forward further legislation with regard to the other recommendations that are still under consideration and that it should look again at the relevant sections that apply to young people, particularly section 493 of the Children, Youth and Families Act and other sections in that act that are also excluded by the terrorism act with respect to the protection of young people in custody. That is one of the very many concerns that have been raised by SARC about the bill.

I turn briefly to describe the amendments that I have circulated in the chamber. They go to some of the other recommendations that have been made either by SARC or by other commentators. The first amendment is with regard to covert warrants to access somebody's electronic equipment remotely. Under similar provisions in the New South Wales and federal acts there are some protections to make sure that nothing in a person's data is interfered with; that it is in fact just looking at the data but not interfering with it. As I said, that is based on the federal legislation. It is an added protection for persons, particularly as it might be found that they are innocent of anything. You need to have protections in place when you are undertaking covert activities against citizens.

Other amendments provide that persons detained under preventative detention orders must not be held in a place with convicted criminals, because a person held under a preventative detention order has not been charged with any offence, or certainly has not been convicted of any offence. I have amendments to address other concerns. With regard to legal professional privilege, under the act at the moment if a person who is held on a preventative detention order has a legal representative to advise them, it is automatic that a police officer sits in on any discussion between the person and their legal representative. I have an amendment to turn that around, so that the default position would be that a police officer would not be present, which is the current situation in any other circumstance for a person who has been arrested for an offence.

Not only does that turn things around to the way it should be, but I have included in the amendment that the Supreme Court could make an exception if the police officer applying for the preventative detention order can make the case for it on criteria that also mirror criteria in other legislation around the country. If there is a threat of physical harm to a person, of the alerting of a person who is suspected of having committed an offence, of interference with the gathering of information or of greater difficulty preventing a terrorist act because a person is alerted, those arguments could be put to the court, and the court could include that in the order.

I have some extra provisions with regard to reporting requirements for preventative detention orders, which already exist under the act, so that annual reports will include the number of persons subject to a PDO who are young persons aged 16, 17 or 18 or who are other than Australian citizens, and the number of persons who at the end of their PDO were in fact arrested. Importantly, as I mentioned earlier, one amendment provides for the involvement of the Supreme Court in the making of an order for the use of special powers to protect essential services. That is consistent with the separation of powers and also with the rest of the act.

I know I am taking up all my time, but this is a very important piece of legislation. I indicated to the government that I had a reasonably substantive contribution to make. This is a piece of legislation that I have not had an opportunity, as I said at the start, to speak on before. It is legislation which governments and oppositions of all persuasions have said we need. It is so necessary that it has hardly ever been used. Even regarding the covert warrants section under the current act, which allows police to enter premises and search people's computers while they are not there, there have only been six applications for such warrants and only one of them has been used in Victoria.

They are so necessary that the covert powers have only been used once and the PDO powers once in 10 years. I have peppered throughout my contribution the views of the COAG review. The national monitor and various others in the community who take an interest in these areas have cast their doubts on the whole regime of preventative detention orders.

Mr Herbert interjected.

Ms PENNICUIK — The police are cautious and judicious, and the Supreme Court is, I suggest, cautious and judicious in granting the orders.

I also draw attention to the comments made by COAG and others that the existing laws we have for arresting people who are suspected of conspiring to commit a crime are already offences. As I noted in some of the commentary that I read through in preparing for this debate, even the police are saying that they would rather arrest someone so they can question them, which they cannot do under this regime, and they could also charge them with an offence.

We have another bill coming down the pipeline which is about the presumption against bail for people charged with this offence. In my mind it would make the use of preventative detention orders even less likely if we end up with that regime in place as well, because then there would be a situation where someone is arrested, charged and in remand and going through the courts as is the proper process at the moment. Preventative detention orders provide for the arbitrary detention of people who have not been charged with anything, and that is why I want to extend the sunset provision that is already in place for preventative detention orders under the act.

There is so much more that could be said about this regime. I am going to use every last second of the time I have allocated to me, because otherwise these sorts of regimes can just be waved through the Parliament without anyone raising issues about them or questioning their effectiveness and their stated purpose as compared to our existing laws, Over the time I have been in this Parliament even those laws have been strengthened more and more. With those words, I look forward to the committee stage.