Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021 Bills

I too rise to address the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021, and I also do so as a longstanding member of the PJCIS. I highlight for those who are listening to this debate the two recent examples in New Zealand and the UK. In both of these examples, what was seen was people who had been convicted of terrorist offences and who had been released because they reached the end of their sentence. Yet the authorities knew and were concerned that the radical ideology which had caused them to offend in the first place had not been renounced, and for that reason they imposed various conditions under their laws in New Zealand and the UK that enabled police to monitor, follow and watch what people were doing. I note that, in both of those incidents, the fact that those conditions were in place did not stop the offenders in the case of the New Zealand incident walking into a supermarket, going to a shelf with knives, grabbing a knife and stabbing a number of people before the police were able to intervene. Similar things happened in the UK.

The reality we face today is that there are a range of reasons terrorist offenders do it and there are a range of circumstances for each person. We see, through groups like ISIS or ISIL—depending on how you want to define them—and their affiliates around the world, that many of these people are quite sane, balanced in their world view, not necessarily from low-income families who have been deprived and not necessarily uneducated. We have people who trained in Australia as doctors and physicians who have gone to join such organisations. If people hold these ideologies deeply, they don’t give them up on the basis of a custodial sentence. We have seen much evidence from around the world that many deradicalisation programs are marginally effective at best and, in many cases, appear to have no real impact. As we look at some offenders, such as Benbrika and others in prisons in Australia who’ve been ringleaders in the past, the potential remains very high for them to not only continue to hold those views but also to continue to lead and inspire others to commit, and for them to commit, atrocities into the future. So, whilst I take the point, raised by others in this debate and during the inquiry, that measures such as extended supervision orders are an infringement on civil liberties, I would contest: so are terrorist acts against our citizens, and we have a duty as a government to protect the people of Australia.

The origins of this bill in part go back to the INSLM’s review into division 105 of the Criminal Code, and I go back to the statement that he issued when he launched that inquiry. At the time when the original bill in 2016, the Criminal Code Amendment (High Risk Terrorist Offenders) Act, was legislated, the then Attorney-General, Senator Brandis, said:

… there is no existing Australian regime for managing terrorist offenders who may continue to pose an unacceptable risk to the community following the expiry of their sentence. Law enforcement agencies can seek to rely on control orders to manage the risk of terrorist offenders upon their release from prison. However, there may be some circumstances where, even with controls placed upon them, the risk an offender presents to the community is simply too great for them to be released from prison. This is a significant public safety issue.

So the INSLM was looking to see whether there were other options that could be effective, as this is fairly extreme in a plural, liberal democracy where we believe in the rule of law and that once somebody has finished their sentence they should be free. So he recommended an alternative approach, which has resulted in this bill.

There are two parts to the bill. Part 1, schedule 1, creates an extended supervision order scheme, the ESO scheme, for high-risk terrorist offenders, in division 105A of the Criminal Code. A state or territory supreme court would be able to make an ESO in relation to a convicted high-risk terrorist offender if satisfied, on the balance of probabilities, that the offender poses an unacceptable risk of committing a serious terrorism offence if released into the community at the end of their sentence. I go back again to the examples in New Zealand and the UK where that is not a hypothetical; that has been lived experience in comparable nations in very recent days. Under an ESO, the court may impose any conditions that it is satisfied are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the community from the unacceptable risk of the offender committing a serious terrorism offence. ESOs would provide a less restrictive option if the court is not satisfied that a continuing detention order, or CDO, is necessary. So that’s the direct outcome of the INSLM’s review.

Part 2 amends the Crimes Act, the Surveillance Devices Act and the Telecommunications (Interception and Access) Act, the TIA Act, to extend the existing surveillance and monitoring powers which are available for control orders to apply to ESOs, including search warrants and warrants for various types of electronic surveillance, so law enforcement agencies would be able to seek electronic surveillance warrants under the SD Act and the TIA Act to inform the AFP in its decision as to whether to apply for an ESO or a CDO.

The committee ended up making a number of recommendations, having heard evidence from a range of people. The key one is recommendation 1:

… that proposed clause 105A of the Counter-Terrorism Legislation Amendment (High-Risk Terrorist Offenders) Bill 2020 be amended to provide that an issuing authority must have regard to:

whether the person is subject to a post-sentence supervision order under State or Territory legislation, and if so, the conditions of that order; and

the cumulative impact on the person of multiple post-sentence orders under Commonwealth and State or Territory laws, including the risk of oppression when considering an application for a post-sentence order.

This goes directly to the concerns that were raised by Senator Thorpe, by the Greens. The government accepted that recommendation and it has agreed to amend the bill in line with the recommendation.

The government notes in its response that the extended supervision order scheme, the ESO scheme, will operate independently of post-sentence or PSO schemes at state and territory level. Where an offender is eligible under a state or territory scheme and the ESO scheme, the Commonwealth would work in close collaboration with the relevant jurisdictional partners to consider appropriate options on a case-by-case basis. It is not the intention that an offender would be subject to concurrent Commonwealth and state or territory orders. That’s an important clarification to make, given some of the concerns that have been raised here tonight.

Recommendation 2, though, is one that I’m very pleased to see. Having been on the committee for a number of years, I have raised this issue on several occasions. The Violent Extremism Risk Assessment 2—VERA-2—framework is the tool that is used to try to determine whether somebody poses an ongoing risk. This goes to the heart of the issue around the nature of the people who are wedded to an ideology that informs their actions. The basis for this tool comes from people trying to analyse other criminals and violent offenders, such as sex offenders, to determine whether or not the condition that has caused them to be susceptible to offending against children or other people in violent sexual acts remains. It’s trying to assess whether there is an illness or a propensity in somebody, from a psychological or mental health perspective, whereas evidence has shown time and again that many terrorist offenders—in fact, I would argue the majority of terrorist offenders—are quite sane and are quite competent; they just believe and intend to act upon their beliefs of the ideology they follow.

So the tool that is used is, I would argue, not sufficient. I have long argued that one of the key points should be appropriate experts who can look at the ideology and look at what the ideology promotes—the actions of people who adhere to it—so they can make an assessment that, if the person still adheres to that ideology and has in the past demonstrated that they are prepared to act upon those principles, instructions or encouragements from that ideology, then they will be prepared to apply either an ESO or, again, in light of the New Zealand and the UK example, a continuing detention order to somebody who has demonstrated that level of propensity for violence: the means and the motivation, if you like, to cause harm to Australia’s population.

So I’m pleased to see that VERA-2 will be reviewed—and looking at other tools. But I would argue that a more comprehensive framework is required, with alternative sources of evidence for the judiciary to consider in terms of whether somebody still poses a risk to the Australian community. I’m pleased to see that the Department of Home Affairs will commission an independent review, given that the government accepted that recommendation. I certainly trust that the PJCIS will have the opportunity to examine that review and to engage with the independent reviewer when it is complete, to understand what they have found and where the recommendations go to, because it’s a key element in deciding whether somebody should be subject to anything at all post their sentence but, if so, whether an ESO is adequate or whether a CDO is what is required. If we are going to operate in a rules based, evidence based, fair and transparent society, the ways we gather that information for our judicial officers have to be repeatable and fair to all concerned and, above all, effective. So I welcome and look forward to the outcome of that review.

There are a number of other amendments, the majority of which the government has accepted in full or in part. Senator McAllister has gone to recommendation 7, so I won’t re-cover that part. But I think the key thing that comes out of this is that the government has been diligent in working in a bipartisan manner to make sure that the Australian population are safe, to understand the risks—whether through foreign interference and espionage or through terrorism—and put in place measures that give our law enforcement agencies the powers they need to discover, to protect and to apprehend and give our judicial system the powers they need to suitably punish or confine in order to protect society. One of the strengths of this committee—and, in an environment where so many of the Australian public are somewhat cynical of the institution of the parliament, I think this is a shining example from this parliament, this Senate and this committee—which is a joint committee with the House, is that we work constructively to put in place checks and balances, so that we achieve a workable balance that enables our authorities to be effective but still maintains the essential essence of Australia as an open, free, plural society. I commend this bill to the House.