This is the report of the PJCIS for its Review of the Counter-Terrorism Legislation Amendment (2019 Measures No.1) Bill 2019.
The Bill makes changes designed to keep Australian’s safer. It implements a COAG agreement to ensure a presumption that neither bail nor parole will be granted to those persons who have demonstrated support for, or have links to, terrorist activity. This decision followed the terrorist attack in Brighton, Victoria in June 2017. The perpetrator of that attack was on parole for State offences, and had previously been charged with conspiracy to commit a terrorist attack.
The Bill amends the existing presumption against bail in section 15AA of the Crimes Act so that it covers persons charged with or convicted of a terrorism offence. In addition, the Bill introduces a presumption against parole for a broader group of offenders, including persons charged with or convicted of a terrorism offence, persons who are the subject of a control order and persons who have made statements or carried out activities supporting, or advocating support for terrorist acts.
These amendments will further protect the wider community and ensure that individuals are not prematurely released on parole.
The Bill also amends section 19AG of the Crimes Act and will require a court, when sentencing a terrorist offender who is under the age of 18 years, to fix a non-parole period of three quarters of the head sentence unless the court is satisfied that exceptional circumstances exist to justify a shorter non-parole period. In determining whether exceptional circumstances exist, the court must have regard to the protection of the community as the paramount consideration and the best interests of the child as a primary consideration. These amendments will strike a balance between the best interests of the child and the need to protect the wider community.
Many submitters expressed concern about this amendment and pointed to Australia’s responsibilities under the Convention on the Rights of the Child (CRC), which Australia ratified in 1990, as well as a recommendation by the Independent National Security Legislation Monitor (INSLM) that section 19AG should not apply to children at all. With respect to those arguments and with particular respect to the INSLM, Coalition members of the Committee were of the view that the paramount duty of the Parliament is to keep its citizens as safe as possible from external and internal threats.
While international treaties are persuasive in developing public policy they should not be simply adopted where their application could prejudice the Parliament’s duty to its citizens and thus undermine Australia’s sovereignty in developing its laws for the protection of the community. Furthermore the CRC was ratified some 29 years ago and, whilst child terrorism was not then unknown, terrorism, let alone child terrorism, was not a policy imperative at the time.
This echoes comments made by the Prime Minister, the Hon Scott Morrison said in his Lowy Speech on 3 October 2019 when he said:
We should avoid any reflex towards a negative globalism that coercively seeks to impose a mandate from an often ill-defined borderless global community. And worse still, an unaccountable internationalist bureaucracy.
Globalism must facilitate, align and engage, rather than direct and centralise. As such an approach can corrode support for joint international action.
Only a national government, especially one accountable through the ballot box and the rule of law, can define its national interests. We can never answer to a higher authority than the people of Australia.
Schedule 2 of the Bill provides that exculpatory material does not need to be included in a continuing detention order application where the material would be the subject of a claim for Public Interest Immunity.
Many submitters expressed concerns about this amendment. In response, the Committee has recommended amendments so that, in relation to any application for a continuing detention order, the onus is on the Australian Federal Police Minister to satisfy the Court that any exculpatory information that is excluded is protected by public interest immunity. This addresses the concerns raised by submitters whilst continuing to ensure that the intended aim of the amendment is achieved.
Following the implementation of this recommendation, the Committee has recommended that the Bill be passed.
Finally I’d like to thank my fellow Committee members for their hard work, all those who submitted or gave oral evidence to the Committee’s review of the Bill and the INSLM, Dr James Renwick CSC SC for his reports on national security legislation which always inform the Committee’s deliberations.