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senate vote 2014-10-29#1
Edited by
mackay staff
on
2014-10-30 10:13:54
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Title
Bills — Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; in Committee- Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 - in Committee - Limit who the advocating terrorism offence applies to
Description
<p class="speaker">Gavin Marshall</p><p>The committee is considering Australian Greens amendment (12) on sheet 7594 moved by Senator Wright. The question is that that amendment be agreed to.</p> <p class="speaker">Penny Wright</p>- The majority don't want to limit who the [bill](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fs976%22)'s new advocating terrorism offence applies to.
- Labor Senator [Jacinta Collins](https://theyvoteforyou.org.au/people/senate/victoria/jacinta_collins) had [proposed](http://www.openaustralia.org/senate/?gid=2014-10-29.18.1) that the offence shouldn't apply to a person "who engages in [good faith](http://en.wikipedia.org/wiki/Good_faith) in public discussion of any genuine academic, artistic, scientific, political or religious matter".
- ###Advocating terrorism offence
- More than 40 legal, human right and community groups oppose the bill's new advocating terrorism offence (see [ABC News](http://www.abc.net.au/news/2014-10-17/5820558)). The offence is broad. It only requires a person to be *reckless* about whether another person will engage in a terrorist act, rather than having to *intend* them to.
- Read more about the offence in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd034).
- ###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](http://www.abc.net.au/news/2014-09-18/authorities-thwart-beheading-plot-in-australias-biggest-raid/5754276) in Australian history. The Prime Minister [Tony Abbott](https://theyvoteforyou.org.au/people/representatives/warringah/tony_abbott) also confirmed that Australia would be [sending the military to Iraq](http://www.abc.net.au/news/2014-10-15/special-forces-could-move-into-iraq-within-days-abbott/5815534) to fight the [Islamic State](http://en.wikipedia.org/wiki/Islamic_State_of_Iraq_and_the_Levant) (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](http://www.abc.net.au/news/2014-10-21/australian-is-fighter-threatens-tony-abbott-in-video/5830040) threatened Prime Minister Tony Abbott in an IS video;
- * Canadian gunman [Michael Zehaf-Bibeau](http://www.abc.net.au/news/2014-10-23/canadian-parliament-in-lockdown-after-gunman-shoots-soldier/5834692) attacked the Canadian Parliament.
<p>I would like to recap what is happening in this debate. Late last night, the government was ramming through laws that they say will make Australians safer. But we know that they involve a fundamental weakening of the rights and freedoms that make Australia one of the world's top democracies.</p><p>The government's approach to this bill has been rushed, and the bill is flawed. The Greens have said it, the country's top legal experts have been saying it and, as we saw yesterday, even the government-dominated Parliamentary Joint Committee on Human Rights has said it. Yesterday afternoon, Senator Smith, the Chair of the Parliamentary Joint Committee on Human Rights, stood in this chamber and told the Senate that parts of this bill are likely to be incompatible with human rights. That was a unified position that the committee took. I am on the committee and I know that, for the committee, that is as strong as it gets: parts of this bill are likely to be incompatible with human rights.</p><p>It is a damning review. The human rights committee has found the new declared area zones offence to be incompatible with human rights. Other parts of the bill have caused the committee to raise concerns about the right to freedom of expression, the right to freedom of movement, the right to freedom from arbitrary detention, the right to privacy and the right to a fair trial, as well as the right to a presumption of innocence. And yet this bill—if the government, aided by Labor and some of the crossbench, have their way—will pass this place in three short hours, by 12.30 pm today. In the committee stage of this debate, we can see there are still so many questions about how it will really affect people into the future and what the implications are.</p><p>Late last night, the Attorney-General was at pains to reassure us that the concerns raised about this bill by some of the country's top legal experts in the area of human rights and civil liberties—the Gilbert + Tobin Centre of Public Law, the Law Council of Australia, the Castan Centre for Human Rights Law, Human Rights Watch, Professor Ben Saul and the Human Rights Commission—should not worry us. But in the cold hard light of day, once again we have to remember and take stock of what this bill is seeking to do and, if passed, what it will do. It will change whether and where people in Australia travel; it will change the circumstances in which people can be detained and questioned by ASIO, customs and police; it will change the kind of personal information that is captured and stored at the airport; and the kind of public commentary or reflection on controversial issues that is legal. As we saw with the first tranche of national security legislation, it is simply too late to ponder the consequences and, in some cases, to rue them, once the legislation has been passed. I know that if this law is to be passed in haste we will regret it at leisure. Over time we will come to fully realise the freedoms we have traded away for a situation that many say will not actually make us safer.</p><p>Coming to the offence of advocating terrorism, this is a new offence where a person will be guilty of the offence if they intentionally counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorist offence and the person is reckless as to whether another person will engage in a terrorist act or commit a terrorist offence. It is a serious offence; it carries a maximum penalty of five years in prison. The Australian Greens' first amendment, item (12) on the sheet, substitutes 'an intention'—a fault element of intention—to commit the act for 'recklessness'. The Australian Greens say that this amendment is necessary because the offence of advocating terrorism in this bill duplicates and unnecessarily expands what are already-existing criminal offences which capture conduct or speech that advocates the commission of terrorist acts. For instance, there is already an offence on Australia's statute books to urge another person to engage in intergroup violence or violence against members of groups. There is already an offence to recruit others to join terrorist organisations or organisations engaging in hostile activities against foreign governments. There are already incitement offences which cover a person who urges the commission of an offence, such as a terrorist-related offence. It is already an offence to be a member of, or provide support to, a terrorist organisation. This Greens amendment seeks to tighten the scope of this new proposed offence to ensure that it will only apply to those who intend to cause another to engage in a terrorist act or commit a terrorist offence. This amendment is needed because this serious criminal offence, as it is currently drafted, only requires a person to be reckless as to whether another person will engage in a terrorist act or commit a terrorist offence.</p><p>The legal commentators from whom we have sought advice, and whose position is similar to the position that the Australian Greens are taking in relation to this, are the Gilbert + Tobin Centre of Public Law, the Law Council of Australia and Human Rights Watch. I have a question to put to the Attorney-General. It has been suggested that the new offence of advocating terrorism duplicates and unnecessarily expands existing criminal offence provisions, and contains terms that are so broadly defined that they will pose problems for prosecutors, as well as potentially encroaching on freedom of speech. Attorney-General, can you please explain, in clear terms, what the term 'promotes means in the context of this offence?</p> <p class="speaker">George Brandis</p><p>Let me respond to a few of the observations that have come from Senator Wright. First of all, Senator Wright, I wish you would not falsely claim that this legislation was rammed through the chamber last night. Each of the amendments—government, opposition, Green and Senator Leyonhjelm's—were dealt with by the chamber in an orthodox parliamentary debate, subject to no time limitation. There are time limitations in place later in the day, but last night's debate was not limited or circumscribed or foreshortened in anyway. You know that, Senator Wright, so why you would choose to say it was rammed through the chamber when in fact it proceeded in a routine, regular and orthodox parliamentary way I have no idea. Perhaps it is because you do not want to come to terms with the substance of the legislation that you make remarks like that.</p><p>Senator Wright, it is still not clear to me what your concern is. You seem to be saying in one breath that the problem with this new provision is that it duplicates existing law and therefore is unnecessary, and then in the very next breath you say it unnecessarily expands existing law and therefore takes the law beyond where it ought to be. You cannot have it both ways. You cannot say on the one hand that the provision is otiose because it merely restates what is already in the law and then in the next breath say the provision is dangerous because it takes the law too far beyond where it already is. It is not clear to me what your complaint is but, as I say, you cannot have it both ways.</p><p>The lacuna in the law that this provision seeks to fill is where the advocacy of terrorism is not caught by the existing law relating to the incitement of violence. That is the answer to your question. That is not merely my opinion; it is also the unanimous opinion of the Parliamentary Joint Committee on Intelligence and Security, which in its review of this bill observed—I am quoting from its report:</p><p class="italic">… the current incitement offence is not appropriate to capture the range of activity being encountered and investigated …</p><p>Senator Wright, I think you are a lawyer, are you not?</p> <p class="speaker">Penny Wright</p><p>I think you know I am, yes.</p> <p class="speaker">George Brandis</p><p>I thought you were. So you would be aware that the existing criminal law of incitement to violence requires a very direct correlation between the words that constitute the incitement and the violent act. But when we are dealing with the advocacy of terrorism—terrorism, as you know, is a defined term in the act—the immediacy of that correlation which the existing criminal offence requires is not always there. It is not necessarily there. This legislation seeks to address that area where the existing offence of incitement of violence is not available to prosecutors. It does that by saying:</p><p class="italic">(1) A person commits an offence if:</p><p class="italic">(a) the person advocates:</p><p class="italic">  (i) the doing of a terrorist act; or</p><p class="italic">  (ii) the commission of a terrorism offence … and</p><p class="italic">(b) the person engages in that conduct reckless as to whether another person will:</p><p class="italic">  (i) engage in a terrorist act; or</p><p class="italic">  (ii) commit a terrorism offence …</p><p>A terrorism offence is one of the existing terrorism offences set in part 5.3 of the Criminal Code. 'Advocates' is a defined term. 'Advocates' is not a term of art. It is not a term with a particular technical legal meaning, so it is defined by subclause 2 of the proposed section in these terms:</p><p class="italic">… a person <i>advocates</i> the doing of a terrorist act or the commission of a terrorism offence if the person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence.</p><p>What those words, those synonyms, seek to capture is the essence of advocacy, the essence of advocacy being an attempt by language or other verbal forms to persuade someone to do something. The relevant event being caught here is 'the doing of a terrorist act or the commission of a terrorism offence'. Now, Senator Wright, if you and your colleagues from the Greens party want to go out into the public space of Australia and say it should not be against the law to advocate the doing of a terrorist act or the commission of a terrorist offence, you go right ahead, Senator Wright. But the government believe, the opposition believe as well and most of the crossbench senators to whom I have spoken also believe that it should not be lawful in this country to advocate the doing of a terrorist act or the commission of a terrorist offence.</p><p>Lastly, Senator Wright, let me address what you said about freedom of speech. The Australian Greens having led the campaign against freedom of speech in the early part of this year, it seems to me, Senator Wright, that it is beyond bizarre that you would now be posing as a champion of freedom of speech. But, that being said, there is all the difference in the world between advocating the doing of a terrorist act or the commission of a terrorism offence, and expressing an opinion, bearing in mind that terrorism is defined in terms of violence or causing fear, on the one hand, and expressing a point of view, on the other hand. There is not a word in this bill—not a word—that impinges upon or restricts freedom of opinion. If a person wants to express radical views, if they want to promote or proselytise a radical view of the world or a non-mainstream view of the world, they are perfectly free to do so.</p><p>What they are not free to do and what they should not be free to do is to advocate the commission of a terrorist act or the commission of a terrorism offence, because that goes beyond merely the expression of an opinion. What that involves is encouraging or promoting or urging other people—almost always vulnerable people, I might say, who are susceptible to the injunctions of these predators—to do harm or violence to innocent people and, indeed, in many cases, to themselves. If, Senator Wright, that is okay with you, then that is a matter between you and your conscience. But I think most of the Australian people would agree with the government that it ought not to be lawful in this country to do so.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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