House of Representatives

Second Reading Speech

Senator Brandis (Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General)

I table the explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

The Government is pleased to introduce the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. The Bill amends several Acts and provides a number of important measures that will enhance the capability of Australia's law enforcement, intelligence and border protection agencies to protect Australian communities from the threat posed by returning foreign fighters and those individuals within Australia supporting foreign conflicts.

As the Prime Minister remarked in his national security statement on 22 September 2014, "protecting our people is the first duty of government". The rapid resurgence in violent extremism and the participation in overseas conflicts by some Australians present new and complex security challenges for our nation. The ongoing conflicts in Syria and Iraq are adding to this challenge and the number of Australians who have sought to take part, either by directly participating in these conflicts or providing support for extremists fighting there, is unprecedented.

Australia is well served by its law enforcement, intelligence and border security agencies. However, we must not become complacent. The recent increase in the terrorism threat level from Medium to High by the Director-General of ASIO, the first time the threat level has ever been increased to this level, only serves to remind us that the threat of a domestic terrorist attack remains real.

The risk posed by returning foreign fighters is one of the most significant threats to Australia's national security in recent years. Our security agencies have assessed that around 160 Australians have become involved with extremist groups in Syria and Iraq by travelling to the region, attempting to travel or supporting groups operating there from Australia. While this is not the first time Australians have been involved in overseas conflicts, the scale and scope of the conflicts in Syria and Iraq, and the number of Australians presently involved, is unparalleled and demands specific and targeted measures to mitigate this threat.

Recent operational activity in NSW and Queensland has demonstrated the professionalism of our Federal and State security and law enforcement agencies. However, such operational activity and the Government's comprehensive examination of Australia's counter-terrorism legislation have identified a number of measures necessary to provide security and law enforcement agencies with the powers they need to respond to the emerging security threats, both globally and domestically. This package of reforms contains several amendments to Part 5.3 of the Criminal Code. The Government appreciates the support of state and territory First Ministers, which has enabled the introduction of these amendments.

The Government would also like to acknowledge senior Muslim leaders and their representatives from around Australia for their cooperation and advice during the development of this Bill. The Government has undertaken extensive consultation with the community, including in Sydney, Melbourne, Brisbane and Canberra on the current security environment, ways to counter violent extremism and some of the key measures in this Bill. This consultation, which is in addition to the normal parliamentary processes, has had a direct influence on the Bill. In particular, the new offence of designated zones was enhanced by taking into account legitimate purposes for traveling, while a clear message was provided that sunsetting of key measures should be extended rather than repealed.

The Government is undertaking comprehensive reform of national security to fulfil our commitment to respond to the recommendations of several recent reviews of national security and counter-terrorism legislation. The measures in the Bill are a large part of that response.

Against this background, the Bill enhances the capability of our security agencies and strengthens Australia's already robust counter terrorism laws in several key areas.

Outline of measures in the Bill

(1) Broaden the criteria and streamline the process for the listing of terrorist organisations and clarify associated offences

As part of an effective counter-terrorism regime, it is vital that our laws target not only terrorist acts, but also the organisations that plan, finance and carry out such acts. Nineteen organisations are currently listed as terrorist organisations under the regime enacted in the Criminal Code. Measures in the Bill will improve this regime by clarifying what is meant by 'advocating a terrorist act'. This updated definition will cover circumstances where an organisation directly or indirectly promotes or encourages the doing of a terrorist act. The amendments will also clarify that whether the terrorist act referred to is a single terrorist act or multiple terrorist acts, or whether a terrorist act does or does not occur is not necessarily relevant to the listing process.

Amending the terrorist organisation training offences will also enable prosecutions in circumstances where there are no formally defined teaching and learning roles in a training session.

(2) Preserve and enhance key counter-terrorism measures due to expire

In the current heightened threat environment, it is vital our law enforcement and security agencies have effective mechanisms to manage emerging threats. The Bill will provide for the continuation and enhancement of a number of key counter terrorism measures including control orders, preventative detention orders, police stop, search and seizure powers and ASIO questioning and detention powers so that these powers will continue to be available to relevant authorities. This Bill will see them extended for a further ten years.

Further enhancements included in the Bill will see the control order regime tailored to address the issue of returning foreign fighters and address the recommendation of the Independent National Security Legislation Monitor to extend the regime to those convicted of terrorism offences where it would substantially assist in preventing a terrorist attack. This will better enable the AFP to mitigate the threat posed by individuals who have engaged in hostile activities overseas or otherwise demonstrated their commitment to a terrorist cause.

(3) Provide certain law enforcement agencies with the tools needed to investigate, arrest and prosecute those supporting foreign conflicts

Delayed notification search warrants

Enhancing the capacity of law enforcement and security agencies to monitor and investigate individuals of security concern is essential to combat the foreign fighter threat. Currently, if the AFP wishes to search a premise they are required to notify the occupant at the time the warrant is executed and must allow the occupant to observe the search. This immediately notifies suspects of police interest in their activities, allowing a person to change their plans to avoid further detection, relocate their operations, or conceal or destroy evidence. It also provides a suspect with the opportunity to notify their associates, who may not yet be known to police, allowing the associates to cease their involvement with the known suspect, destroy evidence, expedite their plans or avoid detection in other ways.

A delayed notification search warrant scheme will overcome these risks by allowing the AFP to covertly enter and search premises without the knowledge of the occupier of the premises, and then provide notification at a later date. By delaying notification of the execution of the warrant, the AFP will have the significant tactical advantage of allowing an investigation to remain confidential. An application for a delayed notification search warrant will be subject to multiple levels of scrutiny and authorisation. Extensive safeguards will ensure that the Bill balances the legitimate interests of the Commonwealth in preventing serious terrorism offences with the need to protect important human rights.

Lowering the threshold for arrest without warrant for terrorism offences

The Bill is amending the arrest threshold for foreign incursion and terrorism offences to allow the police to arrest individuals on reasonable suspicion, rather than reasonable belief. This amendment will bring the Criminal Code into line with a majority of state and territory laws. Amending the threshold in this way will enable police to take rapid action to prevent individuals boarding a plane to travel overseas in circumstances where there may not be sufficient time to gather evidence to achieve the current threshold of reasonable belief. This will enable law enforcement agencies to disrupt terrorist activity at an earlier stage.

Improving the collection and admissibility of evidence collected overseas

The successful prosecution of terrorism-related offences often relies on evidence obtained from outside Australia, where the majority of the alleged offending often occurs. The Independent National Security Legislation Monitor's fourth annual report in March 2014 highlighted obstacles in relation to the collection and admissibility of foreign evidence in terrorism proceedings. The proposed amendments to the Foreign Evidence Act 1994 seek to provide Australian judicial officers with greater discretion in deciding whether to admit foreign material in terrorism-related proceedings, while still providing the appropriate judicial protection of the rights of the defendant. That is, judicial officers will consider the evidentiary value of the foreign material and whether the admission of the material would have a significant adverse impact on the right of the defendant to a fair trial.

(4) Update the available criminal offences so they are relevant and address the modern foreign fighter threat

New advocating terrorism offence

The Bill will introduce a new offence of 'advocating terrorism'. Currently an organisation can be listed as a terrorist organisation if it directly or indirectly counsels or urges the doing of a terrorist act, directly or indirectly provides instruction on the doing of a terrorist act, or directly praises the doing of a terrorist act. However, there is a current gap in the law around individuals promoting terrorism. To address this issue, a person will commit an offence if they intentionally counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorism offence. The offence carries a maximum penalty of 5 years imprisonment. Significantly, there does not have to be a direct link to an actual act of terrorism or violence being carried out. That is, this offence will apply to those who advocate terrorism regardless of whether terrorism or a terrorist act occurs.

New 'declared area' offence

The Bill will create a new offence of entering a declared area overseas where terrorist organisations are active. This will enable law enforcement agencies to bring to justice those Australians who have committed serious offences, including associating with, and fighting for, terrorist organisations overseas.

It would not prevent a person from travelling overseas, including to a declared area, for a legitimate purpose. However, an individual suspected of entering a declared area to fight would have to point to evidence of their legitimate reason for travelling to the area. It is my expectation that this offence will only be enlivened in exceptional circumstances, where terrorist organisations are active and effectively exercising control over a particular region. In those circumstances, a declaration by government would have the dual benefit of warning people about the dangers associated with travelling to that area and creating an offence for those who, regardless of those warnings, choose to travel to the area without legitimate reason. Importantly, a 10 year sunset clause will be attached to this offence.

(5) Strengthen protections at Australia's borders

Expand existing Customs' detention powers

The Bill will expand on existing Customs detention powers to further ensure that Australia's borders remain safe and secure. These amendments will allow Customs officers to detain a person where the officer has reasonable grounds to suspect that the person is intending to commit a Commonwealth offence, or is a threat to national security or the security of a foreign country. Once detained by a Customs officer, the individual will be made available to the appropriate law enforcement agency as soon as practicable. These amendments play a crucial role in Australia's defence against foreign fighters, as they prevent individuals from travelling outside of Australia where their intention is to commit acts of violence. This not only assists in the prevention of terrorist acts offshore, but also prevents these individuals from returning to Australia with greater capacity to carry out terrorist attacks on Australian soil.

Expand the collection and use of personal identifiers of citizens and non-citizens both arriving and departing from Australia

Currently, the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service are only aware that a person is intending to depart Australia when the traveller presents for check-in and boarding. This provides a short timeframe to assess any potential alerts or threats. Amendments in the Bill will expand the existing Advance Passenger Processing system, requiring airlines and maritime vessels to report on persons who are expected to be on a departing flight or voyage. This will enhance border protection agencies to conduct meaningful cross-checking with relevant databases and respond any potential alerts or threats.

The Bill also includes measures which will allow the Department of Immigration and Border Protection to collect, access, use and disclose personal identifiers for purposes of identification of persons who may be a security concern to Australia or foreign country. These amendments will allow for an authorised system, such as eGate, to perform accurate biometric identification almost instantaneously, and will contribute to strengthening Australia's borders.

Enable ASIO to recommend visa cancellation of a person who is offshore, who ASIO suspects might be a risk to security.

The Bill will enable the Minister for Immigration to cancel the visa of a person who is offshore where ASIO suspects that the person might be a risk to security. This amendment will provide ASIO with 28 days to conduct further investigation and issue an assessment that the former visa holder is a direct or indirect risk to security, and recommend their visa should remain cancelled. If ASIO do not furnish such an assessment within 28 days, the Minister for Immigration must revoke the visa cancellation, and the person's visa will be re-instated. This emergency visa cancellation provision will better enable the Australian Government to ensure that non-citizens who might be a threat to security are not able to return to Australia whilst further ASIO investigations remain ongoing.

(6) Limiting the means of travel for foreign fighting or support for foreign fighters

Enable ASIO to request suspension of Australian passports and seize foreign passports

An Australian passport is a privilege of Australian citizenship. The Bill will enable the Minister for Foreign Affairs to temporarily suspend a passport to prevent a person who is onshore in Australia from travelling overseas where ASIO has unresolved security concerns about them. This amendment will provide ASIO with the capacity to prevent and disrupt individuals of security concern, at short notice, from going overseas to participate unlawfully in foreign conflicts.

Welfare cancellation

Finally, the Bill will amend a number of laws to provide for the cancellation of welfare payments for individuals of security concern. This important measure will ensure that the Government does not inadvertently support individuals engaged in conduct that is considered prejudicial to Australia's national security. Like the new declared area offence, my expectation is that this new power will only be used in exceptional circumstances where welfare payments are assisting or supporting criminal activity.

Concluding remarks

The Australian Government is committed to fulfilling its most important responsibility-to protect Australia, its people and its interests-and will do so while instilling confidence that our national security and counter-terrorism laws will be exercised in a just and accountable way. This Bill is an important step in the Government's continuing efforts to strengthen Australia's robust national security laws to proactively and effectively address the threat posed by returning foreign fighters.

The Government thanks the Opposition for its continued bipartisanship on the issue of national security and urge all members to support this Bill and implement this necessary reform.

The PRESIDENT: In accordance with standing order 111, further consideration of this bill is now adjourned until 27 October 2014.