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15 Oct 2015

Statutes Amendment (Terrorism) Bill

Adjourned debate on second reading.

(Continued from 23 September 2015.)

The Hon. A.L. McLACHLAN ( 15:59 ): I rise to speak to this bill and set out the Liberal Party position in relation to the same. It is appropriate today to be doing a second reading in relation to this bill, as our federal counterparts are meeting in Canberra, led by the Prime Minister, the Hon. Malcolm Turnbull, to discuss matters relating to counterterrorism and the fight against extremism.

This bill seeks to amend the Terrorism (Police Powers) Act 2005 and the Terrorism (Preventative Detention) Act 2005. Both acts were part of a package in 2005 in response to the terrorist attacks on 11 September 2001 and were also subsequent to an agreement by all Australian jurisdictions to adopt a national approach to legislation that would assist in responding to terrorist acts.

Back in 2005, the commonwealth assumed primary responsibility for dealing with terrorism. Nevertheless, it was necessary for the states and territories to have complementary legislation. The reason for this is that there may well have been a case that the initial reaction to an imminent terrorist incident or a completed terrorist act would lie with the state authorities and that extraordinary and special state police powers would have been needed in such an eventuality. We have been fortunate in South Australia that we have not needed to use the provisions under both the acts that I have referred to. Both acts contain particular safeguards as they provided the executive with considerable powers in the event of an act of terrorism.

The bill amends the Terrorism (Police Powers) Act by extending the sunset clause for a further 10 years. Can I advise the chamber that the Liberal Party will be supporting this section of the bill, but we will also be introducing amendments at the committee stage seeking a review mechanism in the ninth year of the second 10-year term, as we believe that it should be reviewed in the event that the powers under this bill are exercised. The Liberal Party has formed its view because the risk of a terrorist incident has not declined since the enactment of the original act and it can be argued that the risk to our citizens has increased.

As I said, back in 2005, the Liberal Party formed the view on the provisions of the 2005 act that terrorism represented a very real danger in this country and to the citizens of this state and that it was appropriate that we clothe our police with the necessary powers. At the time, the South Australian Police did not have the power to stop and search, detain persons or cordon off areas, and so it was considered appropriate to provide for these powers, but only in the event of special authorisation or a special area declaration which could be made by the police commissioner but subsequently reviewed by a judge of the Supreme or District Court.

The circumstances in which the special powers can be exercised are very limited. The Liberal Party was persuaded to support the government in enacting these provisions because they contained particular safeguards. As I have mentioned, one was particular judicial oversight. The other limitations in the powers were in relation to the duration of which they could be exercised, but one of the important ones was the recording and reporting regime, and also the sunset clause. This is why the original act provided that the provisions of the act be reviewed on the second and fifth anniversaries.

Because the sections of the act have not been exercised, there has been obviously a nominal review, and this occasion before the chamber can be seen as an ineffective review. At the time, the Liberal Party did not believe that the original provisions were either excessive or unwarranted, so the Liberal Party has not changed its view. Because the powers have not been exercised, there is very little to debate in relation to the bills, but we do see the merit in an amendment that says that in the ninth year of the second term, as I said, there is a review in the event that the powers have been exercised and whether the powers remain as necessary.

I know that there are other views in the chamber which will be debated at the committee stage about the regularity of the reviews, and I look forward to debating those matters at the committee stage.

Other states are extending their time, because this is part of a national scheme. I do know that Queensland are taking a different view and are considering a four-year review and then they would wait a further six years for a subsequent review on the end of the further sunset provision.

The second act to be amended, the Terrorism (Preventative Detention) Act 2005, is a simple amendment which extends the sunset clause for a further 10 years. The Liberal Party has not sought to bring in an earlier review because the originating bill (or act, as it is now) has provisions for annual reviews. At this juncture of the sunset clause, the powers have not been used and, therefore, I suppose the review is nominal, because there is very little to review.

At the time when the Terrorism (Preventative Detention) Amendment Bill was debated in this chamber and then subsequently enacted, this chamber, and particularly the government of the time, placed great weight on the safeguards, which were not only a judicial review but also a sunset clause and, at the time, a reversal of the commonwealth position which became known as a shoot-to-kill power. It is encouraging that the premiers at the time placed great weight on the civil liberties of their citizens, and I encourage the government to take a similar approach in other contexts in relation to the legislation it is enacting.

Perhaps I will just finish off with a comment in relation to these bills. They provide extraordinary powers to the police, but they have countervailing review mechanisms and protections for citizens. It is interesting that the commonwealth does not perceive that it has its own power under this constitution other than to provide detention for 48 hours. We should reflect in the chamber that we obviously have greater room to move under our own constitutional arrangements.

We have perceived greater protections as citizens under the federal constitution than we do under South Australian law, because the commonwealth sought from each state the ability to detain up to 14 days when it felt restrained with only 48 hours, given the legal advice it received on the basis that, if it detained people for longer, the High Court was likely to see it as a punitive measure rather than a preventive measure.

As I said, the chamber should reflect that perhaps we may need in the future to consider the insertion of certain rights in our constitution, or maybe a bill of rights, or follow the Victorian model. I am not necessarily advocating that at the moment, but it is a reflection that constitutional protections are increasingly necessary as we balance the need to protect our citizens against terrorism versus the right of the citizen to a live an untouched life free from the heavy hand of the state. On that note, I indicate the Liberal Party’s support for the second reading of this bill.

Debate adjourned on motion of Hon. J.M. Gazzola .

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