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senate vote 2014-11-26#1
Edited by
mackay staff
on
2014-11-28 12:33:58
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Title
Bills — Counter-Terrorism Legislation Amendment Bill (No. 1) 2014; in Committee- Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 - in Committee - No control orders for prevention
Description
<p class="speaker">Sue Lines</p><p>The committee is now considering the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, as amended. The question is that items (13), (23), (24), (26), (27) and (29) of schedule 1 stand as printed.</p><p class="italic"> <i>(Quorum formed)</i></p>- The majority disagreed with Greens Senator [Penny Wright](https://theyvoteforyou.org.au/people/senate/sa/penny_wright)'s [amendments](http://www.openaustralia.org.au/senate/?gid=2014-11-26.19.1) to the proposed paragraphs that relate to issuing and varying control orders.
- ### The amendments
- The three amendments would have replaced sections that allow control orders to be issued or varied in order to *prevent* a person from providing support for or facilitating a terrorist act. Instead, the amendments would have required that the person *has* provided support for or otherwise facilitated such acts.
- In other words, the bill currently allows for an interim control order to be issued or varied *before* any support or facilitation has occurred, whereas the amendment would have required that that support or facilitation has already been provided.
- ### Expand control order regime
- The expansion of the control order regime that is proposed in this bill is described in the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd050) as "significant and warrant[ing] close scrutiny".
- The greatest concern is the lack of clarity relating to what constitutes ‘support’ for or ‘facilitation’ of a terrorist act or engagement in hostile activities in a foreign country, because the two terms are undefined (see [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd050#_Toc404243200)).
- ### Background to the bill
- This [bill](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/s982) is the third that has been introduced since mid-2014. A number of incidents have happened before and during the course of the introduction of these bills.
- 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)).
- The scope of this bill is narrower than the earlier two but, as mentioned above, some of its measures are "significant and warrant close scrutiny" (see [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd050)). In particular, the proposed expansion of the control order regime (see above) and measures that would allow the heads of [Australian Secret Intelligence Service](http://en.wikipedia.org/wiki/Australian_Secret_Intelligence_Service) (ASIS), [Australian Signals Directorate](http://en.wikipedia.org/wiki/Australian_Signals_Directorate) (ASD) and [Australian Geospatial-Intelligence Organisation](http://en.wikipedia.org/wiki/Australian_Geospatial-Intelligence_Organisation) (AGO) to authorise activities in place of ministers in emergency circumstances.
<p class="speaker">Christine Milne</p><p>Yesterday we had the deplorable situation where the bill was before the committee and amendments were being debated without an explanatory memorandum to explain some very significant terms: 'supports and facilitates' and 'class of persons'. The minister last night could not answer what the committee was asking and instead said the explanatory memorandum would be circulated first thing this morning. We still do not have the explanatory memorandum. This is making a complete farce of the committee and this legislation. We need that explanatory memorandum and we need to hear from the minister what exactly is meant by the terms 'class of persons' and 'supports or facilitates'. This is about how Australian citizens are going to be treated under these counter-terrorism laws. We need to know how a class of persons is going to be defined and that is why we need the explanatory memorandum.</p> <p class="speaker">George Brandis</p><p>I rise on a point of order, Madam Acting Chairman. The explanatory memorandum, contrary to what Senator Milne has just said, is available—</p><p>The TEMPORARY CHAIRMAN: Senator Brandis, that is a debating point, not a point of order.</p><p>If she would allow it to be tabled, it would have been tabled by now. The person who is delaying this is Senator Milne.</p><p>The TEMPORARY CHAIRMAN: Senator Brandis, that is a debating point.</p> <p class="speaker">Christine Milne</p><p>I resent the very inference that I have somehow stopped the explanatory memorandum being tabled. The minister was not even in the chamber when the debate was brought on, as you are very well aware; that is why we had the quorum called in order to get the minister from wherever he was. It happened yesterday as well.</p><p>We take this legislation extremely seriously. The minister treated the committee with absolute contempt last night, refusing to explain those terms. He kept referring to his explanatory memorandum, which we do not have. I expect it will be distributed now so that the minister will answer the questions, because this applies to Australian citizens. People will want to know whether they are going to suddenly be caught up in a 'class of persons' definition that enables them to be spied upon, or information to be shared about them. People need to know what the basis for the definition of a class of persons is. Last month the minister said a class of persons was not going to be based on ethnicity or religion or ideology or political viewpoint. Let us see how the government intends to define a class of persons for the purposes of this legislation.</p> <p class="speaker">George Brandis</p><p>Contrary to what Senator Milne has just falsely asserted, every question that was asked of me last night was answered and answered fully. I was asked four questions, Senator Milne; had you bothered to attend the debate rather than make a fleeting appearance you would know this. I was asked three questions by Senator Wright and I was asked one question by Senator Ludlam. I was asked by Senator Wright, in the first place, about the definition of 'supports and facilitates'; I was asked by Senator Wright about the definition of 'class'; I was asked by Senator Wright for an explanation why the dates for the review by the PJCIS and the sunsetting had been chosen; and, I was asked by Senator Ludlam whether the effect of those provisions of the bill which enable ASIS or enhance the capacity of ASIS to work with the Australian defence forces would enable ASIS to participate in acts of violence. Each of those four questions was answered by me in full at the conclusion of the debate on the relevant amendments. Senator Milne, if you had been in the chamber, you would have known that what has just come from your lips is a falsehood.</p><p>The explanatory memorandum should have been available yesterday and I regret that it was not, but it is now. So I table a supplementary explanatory memorandum relating to the government amendments and an addendum to the explanatory memorandum.</p><p>Now, Madam Acting Temporary Chairman, the question before the chair is that government amendments (7), (15), (16) and (18) on sheet ES111 be agreed to. Let me briefly summarise the effect—</p><p>The TEMPORARY CHAIRMAN: Just a moment, Senator Brandis. If you would not mind, resume your seat. I remind the committee that we are dealing with (13), (23), (24), (26), (27) and (29) of schedule 1, that the items stand as printed and that they are government amendments.</p><p>Madam Acting Temporary Chairman, I am moving government amendments (7), (15), (16) and (18) on sheet ES111.</p><p>The TEMPORARY CHAIRMAN: Resume your seat again, Senator Brandis. I understand that that has already happened.</p><p>No, it has not.</p><p>The TEMPORARY CHAIRMAN: Senator Brandis, resume your seat, please. I am informed by the Clerk that those amendments were moved last night.</p><p>Madam, that is not correct. I was given leave to move the amendments together when the committee came to 20 past seven last evening and the adjournment was put. I do not know what the <i>Journals of the Senate</i> record, but, in any event, having obtained leave last night, I now move:</p><p class="italic">(7) Schedule 1, item 13, page 7 (lines 18 to 28), to be opposed.</p><p class="italic">(15) Schedule 1, items 23 and 24, page 8 (line 23) to page 9 (line 10), to be opposed.</p><p class="italic">(16) Schedule 1, items 26 and 27, page 9 (lines 20 to 25), to be opposed.</p><p class="italic">(18) Schedule 1, item 29, page 10 (lines 4 to 14), to be opposed.</p><p>These amendments implement recommendations 5 and 6 of the unanimous report of the Parliamentary Joint Committee on Intelligence and Security. Recommendations 5 and 6 were that the bill be amended to ensure that an issuing court retains the authority to examine each individual obligation, prohibition and restriction in a control order and that the AFP be required to explain why each obligation, prohibition and restriction should be imposed.</p><p>Amendment (7) amends the bill to revert to the current requirement in the Criminal Code that, when considering the impact of a control order on a person, the issuing court must consider each of the proposed obligations, restrictions and prohibitions. This is designed to ensure that the issuing court individually considers the impact of each proposed obligation, restriction and prohibition on the person separately when deciding whether or not to make a control order.</p><p>Amendments (15), (16) and (18) oppose items (23), (24), (26), (27) and (29) of the bill. These amendments will ensure consistency within the control order regime by providing the same requirements with respect to the consideration of each obligation, prohibition and restriction whether seeking the Attorney-General's consent, making a request to an issuing court or making, varying or confirming a control order.</p><p>The purpose of the amendments is to provide for consistency in the obligations that must be put before the relevant decision maker at each stage of the process whether it be the Attorney-General, whether it be the court that issues the control order or whether it be a court which is subsequently asked to vary or in some way amend the control order. As I said, these give effect to the unanimous recommendations of the Parliamentary Joint Committee on Intelligence and Security. When we have dealt with these amendments and, in the event that they were to be adopted by the committee, that would mean that all of the recommendations by the Parliamentary Joint Committee on Intelligence and Security for amendments to this bill would have been adopted and given effect to.</p> <p class="speaker">Jacinta Collins</p><p>I thank the Attorney-General on this occasion for going through the details of the government amendments. People watching this debate might recall that, yesterday evening ahead of the Attorney-General arriving, I commenced outlining Labor's position in relation to all of those amendments. I have addressed these ones as well in my remarks to government amendments as a whole. We will be supporting them on the basis that they implement the recommendations of the joint intelligence committee.</p> <p class="speaker">Penny Wright</p><p>Before responding to the particular comments that the Attorney-General has made both in relation to the amendments that are being moved but also what he asserts occurred last night, I would like to make a few comments. I would like to recap where we are up to on this bill and touch on the bizarre scenes that played out in this place last night as we debated this significant piece of national security legislation. In what was really an abuse of the committee stage of the debate in this Senate—and the <i>Hansard </i>record will speak for itself—the Attorney-General refused to answer what were fair and reasonable questions which I was putting to him as part of the committee of the whole stage of the bill.</p><p>For more than half an hour, before finally deigning to answer my questions, he refused to answer legitimate questions, sitting in the Senate studiously ignoring me and not paying me the courtesy of even explaining what was going on, indicating at that point that he would deign to answer those questions later as a whole or would give the basis upon which the answers were being refused. I was asking those questions on behalf of all those who do not have an opportunity to stand in this chamber and ask those questions but have a legitimate interest: legal experts, human rights organisations, civil liberties groups and members of the Australian public who have concerns about this legislation.</p><p>Let me be very clear: the Attorney-General has asserted that I asked three questions. That is not the case and the record will stand on the number of questions I asked. I did ask the questions that he has referred to today, but I asked further questions about contextualisation of the phrases that have caused concern because of their breadth and vagueness. I also asked questions arising from the Parliamentary Joint Committee on Human Rights. I was on my feet asking questions and certainly asked more than three questions.</p><p>Let me be very clear: the Australian Greens do not support this bill. It seeks to expand the flawed control order regime, which many experts have criticised and said should be repealed. We do support the recommendations of the Parliamentary Joint Committee on Intelligence and Security, which the government has accepted, and we support the government's amendments, which will give effect to the PJCIS's recommendations in one form or another. They are a welcome improvement to some of the worst parts of this bill, but they certainly do not allay all of our concerns.</p><p>Last night, the Attorney-General evinced an unwillingness to engage in the proper dialogue that one could legitimately expect during the committee of the whole in this parliament, so we still remain in the dark about what this bill will mean for Australians if it becomes law. It seemed that the Attorney-General had not properly considered the report of the Parliamentary Joint Committee on Human Rights into this bill before the committee stage started and before he entered that stage. We maintain that debate should not have even commenced until that report has been considered by senators given the huge human rights implications this bill has for Australians. That is a committee doing the work of this parliament and it should be respected. In all, with his procedural games and by refusing to answer questions as they were put to him, the Attorney-General was attempting to dictate to me which questions I could ask and which I could not ask and screened those which were apparently, in his view anyway, not worthy of a response. One actually suspects that in some cases he did not have a response available.</p><p>I refuse to be directed by the Attorney-General as to what questions I can and cannot ask and when. This was the committee stage when senators are able to directly question the minister who is responsible for a bill. It is a fundamental part of our democratic system. This is a significant bill and I will continue to ask questions about the bill on behalf of the Australian public.</p> <p class="speaker">George Brandis</p><p>I do not want to have meta-debate, I do not want to have a debate about the debate, but I have to correct some statements that were made. Every question you asked was answered, Senator Wright, and you certainly asked more than three questions—that is true—but you only asked questions in relation to three issues. The fact that you asked the same question many times, I counted that as one question, I must confess. But you raised three issues with me in your questions and all three of those issues were addressed. Your questions were fully responded to, as the record will show. Because the clauses in this bill are somewhat related to each other, I thought the most efficient way of dealing with this was to hear what you had to say and then answer you, and that is what happened.</p><p>I have said before that the revised explanatory memorandum should have been here last night and it was not, and I take responsibility for that. You have not addressed any of the amendments I have just moved. I understand that the Greens are opposed to these amendments, but we have not heard any argument or questions. I assume that we will now proceed to a division.</p> <p class="speaker">Penny Wright</p><p>Madam Temporary Chair, I rise on a point of order. I very clearly said that the Australian Greens—</p> <p class="speaker">Sue Lines</p><p>That is a debating point, Senator Wright.</p> <p class="speaker">Penny Wright</p><p>I wanted to clarify. We are not opposing the amendments—just to make sure that the Attorney-General understands that is the case. That is what we have said all along.</p><p>The TEMPORARY CHAIRMAN: Senator Brandis, do you have any further comments to make?</p> <p class="speaker">George Brandis</p><p>No. I have moved the amendments. They are being supported by everyone, apparently. Could we just have the vote, please?</p><p>The TEMPORARY CHAIRMAN: The question is that items 13, 23, 24, 26, 27 and 29 of schedule 1 stand as printed.</p><p>Question negatived.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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