Labor members agree that, subject to the implementation of the Committee’s recommendation, the Bill should be passed. There is, however, one area of disagreement between Labor and Liberal members of the Committee, which we would like to place on the public record in this Additional Comment.
In his report on the prosecution and punishment of children for terrorism offences, the Independent National Security Legislation Monitor, James Renwick SC (“the Monitor”), recommended that section 19AG of the Crimes Act 1914 be amended so that it no longer applies to offenders who were under the age of 18 at the time of offending. Labor members of the Committee agree with that recommendation and believe the Bill would be improved if it were adopted. Liberal members of the Committee do not.
While the Government’s amendments represent a small improvement to section 19AG, Labor members believe that the Bill should go further and implement the Monitor’s recommendation. This is because:
the Monitor’s recommendation in respect of section 19AG is supported by detailed analysis (with respect, the Government’s proposed amendments are not);
the Monitor concluded – in our view, persuasively – that, in so far as it applies to children, section 19AG does not comply with the Convention on the Rights of the Child;
it is not appropriate for the Parliament to knowingly legislate in breach of Australia’s obligations under international law in the absence of compelling reasons for doing so and, in our view, no such compelling reasons have been offered by the Government;
the application of section 19AG to children has the effect of inappropriately limiting the Attorney-General’s discretion to determine – on a case by case basis – how best to balance the protection of the community with the rights of the child; and
the Monitor’s recommendation followed a year-long inquiry and was the product of an extensive consultation process which included input from (among others) senior politicians (including the Commonwealth, NSW and Victorian Attorneys-General), senior members of the judiciary, senior police and corrections officials from across the country , numerous experts and a range of state and federal agencies.
Two of those points warrant elaboration.
Inappropriately limiting the discretion of the Attorney-General
Terrorist offenders – regardless of age – are not automatically entitled to be released on parole at the end of their parole period. Rather, the decision to release an offender on parole is determined by the Attorney-General or their delegate.
The effect of section 19AG, as amended by the Bill, is that a court would be required to set a non-parole period of 75% of the head sentence in relation to a child (unless exceptional circumstances exist), thereby:
constraining the ability of a court to set a shorter non-parole period for children (where it would be in the best interest of the child given their particular circumstances and would not compromise public safety); and
other than where a court has determined that exceptional circumstances exist to justify the fixing of a shorter non-parole period, denying the Attorney-General an opportunity to approve the earlier release of a child on parole – even in circumstances where Attorney-General would have been inclined to do so (if, for example, it would be in the best interest of the child given their particular circumstances and would not compromise public safety).
In other words, the application of section 19AG to children has the effect of limiting the Attorney-General’s discretion to determine – on a case by case basis – how best to balance the protection of the community with the rights of the child.
Apart from anything else, such a position is at odds with the comments in paragraph 2.62 of the Committee’s report, which have been endorsed by Liberal members of the Committee: “the discretion afforded the position of the Attorney-General is appropriate in determining how to best protect the rights of the child and the protection of the community”.
We agree with those comments, and that is one reason why we endorse the Monitor’s position in respect of section 19AG – and why we believe the Government should support that position too.
Convention on the Rights of the Child
When Australia becomes a party to an international human rights convention, it voluntarily assumes certain obligations under international law. The same is true when Australia enters into bilateral or multilateral trade agreements. In each case, the assumption of obligations is a consequence of a decision – a choice – made by the Australian Government. As a matter of domestic Australian law, the Parliament of Australia can disrespect or disregard such a choice by legislating in breach of those voluntarily assumed obligations.
The Parliament should not do so lightly.
As a responsible and democratic country, Australian Governments have historically urged other nations to comply with international law– and have sometimes imposed or supported the imposition of sanctions against those countries when they have failed to do so. If our domestic laws do not comply with Australia’s voluntarily assumed international obligations, it undermines the Australian Government’s ability to persuade other countries to comply with theirs.
The Monitor concluded that section 19AG, as it applies to children, is inconsistent with Australia’s obligations under the Convention on the Rights of the Child. The Australian Human Rights Commission and the Law Council of Australia told this Committee that they agreed with that conclusion.
In his report, the Monitor made it clear that he did not believe “that this non-compliance with the [Convention] was deliberate at the time s 19AG was enacted, only that the breach of the [Convention] is evident now that children are being convicted of terrorism offences. As these laws can be expected to be applied more in the coming years, this non-compliance ought to be addressed, and urgently.”
The Parliament of Australia should not knowingly legislate in breach of – or pass up an opportunity to amend existing laws that are found to be in breach of – international conventions to which Australia is a party in the absence of compelling reasons for doing so. The burden of providing those reasons lies with the Government.
As noted above, the Government’s proposed amendments to section 19AG represent an improvement, and those amendments may result in the law more closely conforming to the Convention on the Rights of the Child. But the Government has offered no compelling reason as to why section 19AG should not be amended so that it fully complies with the Convention (as recommended by the Monitor).
Hon Anthony Byrne MPSenator the Hon Kristina Keneally
Hon Dr Mike Kelly AM, MPSenator Jenny McAllister
Hon Mark Dreyfus QC, MP