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senate vote 2014-10-29#2

Edited by mackay

on 2014-10-30 10:44:15


  • Bills — Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; in Committee
  • Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - in Committee - Support offence of entering and staying in a declared area


  • <p class="speaker">George Brandis</p>
  • <p>I move government amendment (33):</p>
  • <p class="italic">(33) Schedule 1, item 109, page 76 (after line 17), after subsection 106.5(4), insert:</p>
  • The majority supported the bill's new offence of entering and staying in a declared area.
  • Greens Senator [Penny Wright]( had [proposed]( to oppose it.
  • ###Enter or stay in declared area offence
  • The bill will make it an offence for someone to enter or stay in an area that the [Minister for Foreign Affairs]( declares as a declared area. A whole country can be a declared area, which was [criticised]( by the [Joint Parliamentary Committee on Intelligence and Security](
  • Read more about this new offence in the [bills digest](
  • ###Background to the bill
  • A number of incidents happened before and after this bill's introduction. There was [one of the biggest counter-terrorism operations]( in Australian history. The Prime Minister [Tony Abbott]( also confirmed that Australia would be [sending the military to Iraq]( to fight the [Islamic State]( (IS) (also known as the Islamic State of Iraq and Syria (ISIS) or the Islamic State of Iraq and the Levant (ISIL)).
  • Two particularly significant incidents were when:
  • * Australian teenager [Abdullah Elmir]( threatened Prime Minister Tony Abbott in an IS video;
  • * Canadian gunman [Michael Zehaf-Bibeau]( attacked the Canadian Parliament.
  • <p class="italic">&#160;&#160;(4A) Section 104.23, as amended by Schedule 1 to the <i>Counter</i><i>-Terrorism Legislation Amendment (Foreign Fighters) Act 2014</i>, applies to variations of control orders, where the relevant interim control order is requested after that commencement.</p>
  • <p>This is an application provision. It provides that the amendments to section 104.23 of the Criminal Code, which authorise the Australian Federal Police commissioner to seek a variation of a control order on any of the grounds for requesting a control order, include the new foreign-fighting and terrorism conviction grounds. The effect of the application provision is to ensure that the ability to vary a control order applies only to a control order requested after the bill comes into operation.</p>
  • <p>Question agreed to.</p>
  • <p>by leave&#8212;I move government amendments (34) to (39) together:</p>
  • <p class="italic">(34) Schedule 1, item 110, page 77 (line 23) to page 78 (line 14), omit the definition of <i>engage in a hostile activity </i>in subsection 117.1(1), substitute:</p>
  • <p class="italic"><i>&#160;&#160;engage in a hostile activity</i>: a person <i>engages in a hostile activity</i> in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):</p>
  • <p class="italic">&#160;&#160;(a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);</p>
  • <p class="italic">&#160;&#160;(b) the engagement, by that or any other person, in action that:</p>
  • <p class="italic">&#160;&#160;&#160;&#160;&#160;(i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and</p>
  • <p class="italic">&#160;&#160;&#160;&#160;&#160;(ii) if engaged in in Australia, would constitute a serious offence;</p>
  • <p class="italic">(c) intimidating the public or a section of the public of that or any other foreign country;</p>
  • <p class="italic">&#160;&#160;(d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);</p>
  • <p class="italic">(e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).</p>
  • <p class="italic">(35) Schedule 1, item 110, page 78 (lines 15 and 16), omit the definition of <i>engage</i><i>in subverting society </i>in subsection 117.1(1).</p>
  • <p class="italic">(36) Schedule 1, item 110, page 78 (after line 31), after the definition of <i>recruit</i> in subsection 117.1(1), insert:</p>
  • <p class="italic"><i>&#160;&#160;serious offence</i> means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for 2 years or more.</p>
  • <p class="italic">(37) Schedule 1, item 110, page 79 (lines 8 and 9), omit paragraph 117.1(2)(b), substitute:</p>
  • <p class="italic">&#160;&#160;(b) the engagement, in Australia or a foreign country allied or associated with Australia, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3); or</p>
  • <p class="italic">(38) Schedule 1, item 110, page 79 (line 12), after "relations", insert "(within the meaning of section 10 of the <i>National Security Information (Criminal and Civil Proceedings) Act 2004</i>)".</p>
  • <p class="italic">(39) Schedule 1, item 110, page 79 (line 13) to page 80 (line 7), omit subsections 117.1(3) and (4).</p>
  • <p>Amendments (34) to (39) implement recommendations 15 and 16 of the Parliamentary Joint Committee on Intelligence and Security by replacing the phrase 'engages in subverting society,' which is one of the elements of the definition of 'engage in hostile activity,' with a cross-reference to the conduct contained in the definition of 'terrorist act' in section 100.1 of the Criminal Code. These amendments also constrain that element to conduct that would be a serious offence&#8212;one that carries at least two years imprisonment if undertaken within Australia. The two-year threshold is consistent with the definition of 'serious offence' in section 3C of the Crimes Act.</p>
  • <p>Question agreed to.</p>
  • <p class="speaker">Penny Wright</p>
  • <p>I just want to seek the guidance of the chair. The Australian Greens also have amendments in this particular area. We have a series of amendments, but the first amendment that we would be moving would be to oppose the section of the act which creates the declared areas zone. I ask leave of the committee to that extent, to move the Australian Greens amendment first so that we can be clear on whether or not the committee is willing to support that amendment. It would just make sense logically to deal with that first and then move to the opposition's amendments.</p>
  • <p>The CHAIRMAN: I think that does make sense, but I have been following the order on the running sheet. I will just get some guidance from Senator Collins on whether she objects to that and also from the minister. There does not seem to be any objection. Senator Wright, if you could now move amendment (16).</p>
  • <p>I would like to speak that briefly, but I do appreciate indulgence of the committee on this. Thank you.</p>
  • <p class="speaker">George Brandis</p>
  • <p>Senator Wright, could I ask some clarification, please? I think your amendments (16) and (17) are related, and I think amendments (18) and (19) might be as well. Are you just moving (16)? Or should we deal with all of your amendments on declared areas at the same time?</p>
  • <p class="speaker">Penny Wright</p>
  • <p>I am really at the indulgence of the committee. I am not wishing to gazump the debate, so I would be interested to know if Senator Collins would be prepared to agree to that. I would be happy to do that because it might be more efficient. Otherwise, we will just move the aspects of our amendments which would seek to knock out the no-go zones.</p>
  • <p>The CHAIRMAN: If I could just intervene. Amendments (16) and (17) have to be put separately, anyway. I am happy if the debate goes across the three of them, if it is the will of the committee at the time. Maybe if you just move (16) and, if people want to talk to the three amendments, that will be fine.</p>
  • <p>I move Australian Greens number (16) on sheet 7954:</p>
  • <p class="italic">(16) Schedule 1, item 110, page 82 (line 1) to page 85 (line 10), sections 119.2 and 119.3 to be opposed.</p>
  • <p>On moving item (16), being Australian Greens amendment to remove the declared areas offence in the bill, the bill seeks to create a new offence of entering or remaining in a declared area, which would be punishable by 10 years imprisonment, so it is a significant offence. Under the provision, if it were to be passed, areas in a foreign country can be declared by the Minister for Foreign Affairs, by way of legislative instrument, if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country. Declarations can last for a maximum of three years.</p>
  • <p></p>
  • <p>There is a narrow legitimate purpose defence available for those charged with the substantive offence. The Australian Greens amendment (16) would remove the proposed no-go-zone offence from the bill because it is considered that this offence will unnecessarily and disproportionately restrict freedom of movement in Australia. Certainly views have been expressed and the Greens are of the view that this is potentially an extremely counterproductive outcome. It risks entrenching feelings of isolation and alienation in the very communities in Australia that we rely upon to assist in this fight against terrorism and in order to build social cohesion and inclusion in the Australian community because this offence, if it stays, will criminalise what is perfectly legitimate travel. It will make it punishable by 10 years imprisonment for a person to travel to a declared area and because there is no fault element required, it has the practical&#8212;if not the technical&#8212;effect of reversing the onus of proof. It would require anyone who is charged with the offence after having travelled to a declared area to bring their own evidence to demonstrate that their travel was not only to fall within a narrow list of legitimate purposes but also that that travel was solely for that reason. For instance, an elderly couple who are travelling to a declared area to visit a dying friend or a young person who is travelling to a declared area to study, or a business person who remained in an area, after it had become a declared area, to conclude a business deal, there is no need to establish any criminal intent. Those people would be subject to potential prosecution upon returning to Australia. Even where there is a legitimate purpose provided for in the offence such as a journalist, they remain liable to be charged with the offence, brought before a criminal court and required to bring evidence to prove that journalism was the sole reason for their travel to escape conviction.</p>
  • <p>The legal experts we have been paying attention to have stated that this is yet one more example of a completely unnecessary new offence. The expert advice in this area which we would be referring to is advice from the Law Council of Australia, the Gilbert and Tobin Centre for Public Law, the Australian Human Rights Commission, Professor Ben Saul, Human Rights Watch and the Human Rights Law Centre. The Parliamentary Joint Committee for Human Rights has also expressed concerns about the potential incompatibility of this provision with human rights in Australia.</p>
  • <p>Australia's criminal laws, which we asked the chamber to consider, already cover well and truly circumstances where a person leaves Australia in order to participate in hostile or terrorist activities overseas, as well as circumstances where a person encourages or urges another person to engage in such activities or a person who financially or otherwise supports terrorist or criminal organisations. That is the reason that the Australian Greens are moving to have this offence removed from the bill. I have some questions to which I really would appreciate the Attorney-General's response. The first I will put to the Attorney-General in relation to the offence as it stands in the bill at this stage is why the government has chosen to frame this offence in such a way that departs so significantly from the type of established criminal law and rule of law principles that the Attorney has a tradition of vigorously defending.</p>
  • <p class="speaker">George Brandis</p>
  • <p>Thank you for the compliment, Senator Wright, but I do not for a moment share your view that this is a departure from traditional rule of law principles. This is a new offence which is being created. I will wait until you have asked whatever questions you want to ask me before speaking at length about the desirability of the provision, but this is no departure from established rule of law principles merely to create a new criminal offence, a very narrow one, subject to the ordinary defences which are provided for in the generic provisions of the Commonwealth Criminal Code, transparent on the face of the statute with no reverse of the onus of proof, no reduction in the standard of proof and beyond the generic defences a series of specific defences which in the government's view deal with legitimate reasons for travel to declared areas. There is nothing unusual about this. How you think merely because it is a newly expressed offence that that is a departure from the rule of law escapes me.</p>
  • <p class="speaker">Penny Wright</p>
  • <p>I am happy to elaborate on why the Australian Greens and certainly other legal commentators are of the view that it is a significant departure from established principles and that is the offence has been drafted in such a way as to have the same effect, without being semantic, as a reversal of the onus of proof because, while the prosecution has to prove that a person was in the declared area, that is all they have to prove initially and the defendant is then guilty of the offence unless the defendant brings evidence to demonstrate that the travel was solely for one of the listed legitimate purposes&#8212;if you want to respond to that first, Attorney-General.</p>
  • <p class="speaker">George Brandis</p>
  • <p>I am happy to, Senator Wright. This is a red –herring argument which has been raised many times. There is no reversal of the onus of proof here at all. The way the criminal law works is that an offence&#8212;let us assume we are talking about statutory offences&#8212;is defined and the prosecution bears the onus of proving every element of that offence beyond reasonable doubt. Then defences are provided for. If an accused person seeks to rely upon a defence then they have to bring forward evidence to discharge what, as you would know as a lawyer, Senator Wright, is known as 'the evidential onus', to show that there is sufficient material upon which that defence may be invoked. That is not a reversal of the onus of proof. It is merely to say that, if a criminal defendant seeks to rely upon a defence, he or she has to bring sufficient facts before the court to demonstrate the availability of that defence. That has never been regarded as a reversal of the onus of proof.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>