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16 Nov 2017

Statutes Amendment (Terror Suspect Detention) Bill

Adjourned debate on second reading.

(Continued from 14 November 2017.)

The Hon. A.L. McLACHLAN (12:26): I rise to speak to the Statutes Amendment (Terror Suspect Detention) Bill. I speak on behalf of the Liberal opposition and indicate that we will be supporting the second reading of the bill. This bill follows a joint announcement by the Premier, the Attorney-General and the Minister for Police on 13 June outlining the government’s plan to strengthen bail and parole laws in order to combat the threat of terrorism.

The announcement followed an Australian governments meeting (COAG), which took place in early June. When introducing the bill in the other place, the Attorney-General said that these reforms were designed to:

…ensure that South Australian laws pertaining to bail, parole and post-sentence supervision and detention, are adapted to meet the risk posed to our community by terrorist offenders as well as persons who have demonstrated support for—or links to—terrorist activity.

The bill amends the Bail Act 1985, the Correctional Services Act 1982, the Criminal Law (High Risk Offenders) Act 2015 and the Police Act 1998. I will turn briefly to each of these four areas of legislative reform.

In respect of amendments to the Police Act, this bill amends the South Australian Police Act 1998 by inserting new provisions to create a scheme whereby Australian jurisdictions can enter into agreements to receive terrorism notifications from prescribed terrorism intelligence authorities. This will mean that South Australian authorities can be alerted when other jurisdictions become aware that someone has demonstrated support for, or links to, terrorist activity. The Attorney-General indicated when introducing the bill that regulations will be drafted in consultation with other jurisdictions and the South Australian police.

In respect of amendments to the Bail Act, the bill amends section 10 of the Bail Act to add to the list of offenders against whom there is a presumption against bail to include a terror suspect. A terror suspect is defined in the bill as a person who has previously been charged with, or convicted of, a terrorist offence, or who is the subject of a terrorism notification.

The terror offence does not have to relate to the offence for which the bail application is being made. In other words, once you are considered a terror suspect, the presumption against bail will apply to you no matter what manner of criminal offending you are alleged to have committed. However, the usual provisions will apply for the presumption against bail; that is, this presumption can be overcome if the applicant can establish special circumstances that would justify their release on bail.

In respect of amendments to the Correctional Services Act, this act currently permits prisoners who are serving a sentence of less than five years, who have not been convicted of sexual offences, serious firearm offences, personal violence or a parole breach, to be automatically released once they have served the non-parole period of their sentence.

Other prisoners are obliged to apply for parole through the Parole Board process. The bill amends the extant act to ensure that terror suspects will not be automatically released and therefore must apply to the Parole Board for their release into the community. Further, the bill ensures that the presiding member of the board must confirm all decisions relating to terror suspects.

As with the amendments to the Bail Act, the board must not release a terror suspect on parole unless there are special circumstances to justify the same. The same definition of terror suspect as that contained in the amendments to the Bail Act applies. In respect of amendments to the Criminal Law (High Risk Offenders) Act, the bill amends that act so that the state or commonwealth attorney-general can make an application to the Supreme Court for an extended supervision order of any terror suspect serving a sentence of imprisonment. I note, however, that the offence they are serving prison time for need not be terror related, with the only requirement being that they are a terror suspect.

The same definition of terror suspect as that contained in the proposed changes to the Bail Act and Correctional Services Act applies. The court is required to consider the likelihood of the terror suspect committing a terrorist offence or a serious offence of violence, or otherwise being involved in a terrorist act. As per the current provisions of the Criminal Law (High Risk Offenders) Act, if a person breaches an extended supervision order they will be brought before the Parole Board, which will then consider whether they should remain under supervision or be detained and brought before the Supreme Court. If the matter ends up before the Supreme Court, community safety is the paramount consideration.

In considering an application of this nature, the state or commonwealth attorney-general may be represented by a terrorism intelligence authority that has the right to be heard in any court proceedings. Furthermore, the bill specifies that any terrorism intelligence considered by the court is to be protected.

The Law Society has made a submission, dated 4 August 2017. It will perhaps not be a surprise to many in the chamber that in it the Law Society has raised some serious concerns about the proposed reforms contained in this bill. I intend to briefly quote from their submission, as I think it is important that honourable members reflect on these concerns when debating policy that seeks to dramatically curtail certain civil liberties. In regard to the presumption against bail for terror suspects, the Law Society has highlighted that:

There need not be – and perhaps even must not be – any causal, relational connection between the charge or offence for which the person has been arrested or remanded in custody and any alleged terrorist activity. Absent the need for such a causal, the label of such a person as a terror suspect may, in some circumstances, constitute a misnomer.

The society also indicated that it does not support the proposal that will prevent terror suspects from automatic release on parole. On this issue, the society stated:

It is difficult to address this part of the Bill by way of detailed submission where it remains unclear as to why offenders in this category should be treated differently in respect to parole than other offenders.

The submission goes on to state:

In general parole provides an important opportunity for an offender to be gradually reintegrated into the community and with the incentive that if there are contraventions of the conditions of parole there can be a return to incarceration.

I ask the minister if the government could respond to the issues raised in the Law Society’s submission in the summing-up of the second reading. I look forward to receiving responses to the important questions raised by the Law Society.

The government has filed amendments. At this point, we are intending to support the bulk of those amendments, depending on how the debate progresses. However, I alert honourable members that we will be opposing two amendments. The two amendments are Nos 11 and 12 in set 1. These amendments extend the application of the provisions to youth offenders in relation to the Criminal Law (High Risk Offenders) Act. In our view, and I will expand a bit more on this in clause 1, there is no justification for this, other than the government’s claim that it is consistent with the other provisions that are set out in the bill.

Whilst it is the government’s core intention to be nationally consistent, these provisions do not come out of the discussions at COAG, a related task force or an expert panel, which considered terrorism and provided a report on terrorism and violent extremism from Victoria and whose work was published around September 2017. Perhaps I should just clarify those statements. In essence, in the meeting in June it was not agreed to come up with those provisions. This is of the government’s own initiative, and they do not find favour at this point in time with the opposition.

I thought I might leave members with some quotes from an interesting academic journal article from Christopher Michaelsen, entitled ‘Balancing civil liberties against national security? A critique of counterterrorism rhetoric’. In his introduction—and I am selectively quoting, and I encourage members to get access to this 2006 article—he says:

On one side, the claim is made by those defending incursive counter-measures that liberal democracy itself is targeted as the enemy.

He goes on to say:

The unprecedented threat to ‘our way of life,’ therefore, warrants restrictions of civil liberties and human rights. It is imperative to make sure that the very mechanisms protecting the individual from excessive state power do not hamper the government’s ability to respond effectively to the threat. Civil liberties and human rights, so the argument runs, are political conveniences for enjoyment in times of peace.

Just to clarify the context of that, that is him expressing the view of advocates for more oppressive measures. He goes on to say:

They should not, however, constitute restraining yardsticks for government in times of emergency and national danger.

So, that is one side of the ledger. In relation to the other side of the ledger in the debate, he says:

On the other side, commentators maintain that it is particularly in times of crisis that the liberal democratic state must adhere strictly to its defining principles. Rights would lose all effect if they were easily revocable in situations of crisis. Besides, to believe that depriving citizens of their individual rights and freedoms was necessary to maintain security is to put oneself on the same moral plane as the terrorists, for whom the end justifies the means. Indeed, sacrificing fundamental liberal values such as the respect for the rule of law, civil liberties and human rights would amount to losing the ‘war on terrorism without firing a single shot’.

These are matters which I ask members to reflect upon when considering the debate on these provisions in the committee stage. To sum up, the Liberal Party is supportive of the bill passing the second reading and looks forward to the committee stage. It is minded to support those matters that have been agreed at COAG. It has difficulties with some amendments which the government has brought to the chamber of its own initiative.

Debate adjourned on motion of Hon. T.T. Ngo.

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