House of Representatives

Second Reading Speech

Mr PORTER (Pearce-Attorney-General)

I move:

That this bill be now read a second time.

The Australian government is committed to ensuring the safety and protection of the Australian community. Law enforcement and security agencies must have access to the tools and capabilities that they need to manage the ever-evolving terrorist threat.

To this end, and consistent with the recommendations of the Parliamentary Joint Committee on Intelligence and Security and the Independent National Security Legislation Monitor, this bill extends the counterterrorism powers and offences that are scheduled to sunset on 7 September 2018.

The control order regime, the preventative detention order regime, the declared areas offences, and the stop, search and seizure powers will continue for a further three years, until 7 September 2021.

With respect to control orders under division 104 of the Criminal Code, they are a preventative tool designed to disrupt planning for terrorist acts. They allow for the overt, close monitoring of terrorist suspects who pose a risk to the community-either directly, or by facilitating others. Each of the controls in a control order must be reasonably appropriate and adapted to protect the public from a terrorist attack.

With respect to preventative detention orders under division 105 of the Criminal Code, they are also an important tool in preventing an imminent terrorist attack. They allow a person to be detained without charge to prevent a terrorist act or to preserve evidence of such an act. The gravity of these powers means that they can only be used where the AFP reasonably suspects an attack could occur within a 14-day period.

The declared areas offences in section 119.2 of the Criminal Code form part of the Australian government's efforts to stop the flow of foreign fighters. They make it an offence to enter, or remain in, conflict zones in a foreign country in which terrorist organisations operate and that is declared by the Minister for Foreign Affairs. There are only very limited reasons for entering such an area, other than to participate in the conflict or train with terrorist organisations. The offences recognise this by allowing for a very small range of exceptions.

Finally, the stop, search and seizure powers in division 3A of the Crimes Act give police officers appropriate powers to act in the event of, or in anticipation of, a terrorist act. These powers allow police to request a person to provide their name, address and certain other details, to stop and detain a person to conduct a search for terrorism related items, to seize terrorism related items in Commonwealth places such as airports, and to enter premises without a warrant to prevent a terrorist act or avert a serious and imminent threat to a person's life, health or safety.

These powers and offences have been used rarely since they were enacted. Six control orders have been made since 2005. There have been no preventative detention orders made as of yet, and no incidents demanding the use of the stop, search and seizure powers. As the PJCIS and INSLM both recognised, the sparing use of these powers is not an argument that they are irrelevant. Rather, it underscores that the AFP and others have been appropriately judicious in exercising these serious powers, and that the extreme circumstances for using a number of them have thankfully not yet arisen.

The bill will also continue the Australian Security Intelligence Organisation's questioning, and questioning and detention powers, in division 3 of part III of the Australian Security Intelligence Organisation Act 1979. These powers will be extended for a further 12 months until September 2019.

This will enable the government to consider the PJCIS's recommendations in relation to ASIO's powers. In the meantime, ASIO will continue to have access to these important tools in its efforts to gather critical intelligence to enhance Australia's counterterrorism efforts.

Importantly, all the extended regimes will continue to be subject to the extensive, and in some cases extended, safeguards and oversight mechanisms that are appropriate.

Other technical changes

There are some other technical changes contained in this bill, insofar as the bill also makes a number of technical and procedural changes to implement other PJCIS and INSLM recommendations about control orders and declared areas.

The bill will extend the minimum time period between an interim and a confirmation hearing for a control order from 72 hours to seven days. This will more realistically reflect the minimum time it takes for both parties to prepare for confirmation proceedings, which are sometimes quite complex.

The bill will also allow the person the subject of a control order or the AFP to apply to vary an interim control order, but only with the other party's consent. This is to provide flexibility for both parties to seek minor changes to the original terms of an interim order, but not the substantive terms of the order.

Further, the bill will make clear that a court generally cannot order costs against the subject of control order proceedings. This reflects the AFP's longstanding practice, and recognises the significance of control order proceedings. However, the bill will allow the AFP to seek costs where the subject of the proceedings has conducted their case unreasonably.

In relation to the declared area offence, the Minister for Foreign Affairs will be authorised to revoke a declaration of a declared area even where the legislative test for the declaration continues to be met. This will allow the minister to revoke a declaration that may be no longer necessary or desirable, but where hostilities against a terrorist organisation may still be ongoing.

The bill will also amend the list of legitimate purposes for entering a declared area so that it more clearly allows for the important role that the International Committee of the Red Cross performs in conflict situations.

Additional oversight

With respect to additional oversight, with such counterterrorism powers and offences come very important responsibilities. Therefore the bill will require information on the exercise of these powers to be collected and introduce additional oversight measures.

The AFP will be required to notify the PJCIS in writing after the making of an initial or continued preventative detention order or a prohibited contact order. These measures provide the PJCIS with additional oversight of these orders.

The PJCIS will also have the power to report to parliament on any declaration made by the foreign minister under section 119.3 of the Criminal Code at any time whilst a declaration is in effect, including during the disallowance period.

The bill also implements PJCIS recommendations in relation to reporting on the use of stop, search and seizure powers in division 3 of part IAA of the Crimes Act 1914. There are currently no such reporting obligations. The bill will require the AFP to report as soon as practicable after the exercise of these powers and require the minister to table an annual report on the exercise of the powers. These measures will thus provide enhanced transparency and oversight.

The important functions of the PJCIS will also be further strengthened through amendments to the Intelligence Services Act 2001. The PJCIS will continue to have a duty to review the operation, effectiveness and implications of the control order, preventative detention order, declared areas offences, and stop, search and seizure powers. As with its recent statutory review, the PJCIS will be required to provide a further report on the extended legislative regimes by 7 January 2021.

The PJCIS will also be empowered to monitor and review the performance by the AFP of its functions under division 3A of part IAA of the Crimes Act, and the exercise of the Minister for Home Affairs' power to declare prescribed security zones.

Minor machinery of government changes

Finally, the bill makes technical amendments to the Criminal Code to reflect the new division of responsibilities between the Attorney-General and the Minister for Home Affairs following the recent machinery of government arrangements.

Concluding remarks

By way of conclusion, I would note that this bill ensures law enforcement and security agencies continue to have the capabilities to deal with the changing national security and threat environment while also protecting individual rights, including through further transparency and oversight measures.

The measures in this bill implement the first part of the government's response to the recommendations of the PJCIS and the INSLM's recent reviews. The second part of the government's response to these reports-which concerns the creation of an extended supervision order regime-will form part of a further bill to be introduced later in 2018.

The PJCIS and INSLM have comprehensively examined the counterterrorism provisions addressed in this bill and have recommended, in light of the current threat environment, that they be continued. I acknowledge and appreciate the extensive and continuing work of the PJCIS and INSLM.

I also appreciate the ongoing partnership with states and territories in our joint effort to keep the Australian community safe.

To this end, this government is unwavering in its commitment to ensuring Australia's counterterrorism and national security framework continues to be as robust and responsive as possible.

I commend the bill to the House.

Debate adjourned.