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Senator Wright questions the implications of the Foreign Fighters Bill

Speeches in Parliament
Penny Wright 29 Oct 2014

 I would like to recap what is happening in this debate. Late last night, the government was ramming through laws that they say will make Australians safer. But we know that they involve a fundamental weakening of the rights and freedoms that make Australia one of the world's top democracies.

The government's approach to this bill has been rushed, and the bill is flawed. The Greens have said it, the country's top legal experts have been saying it and, as we saw yesterday, even the government-dominated Parliamentary Joint Committee on Human Rights has said it. Yesterday afternoon, Senator Smith, the Chair of the Parliamentary Joint Committee on Human Rights, stood in this chamber and told the Senate that parts of this bill are likely to be incompatible with human rights. That was a unified position that the committee took. I am on the committee and I know that, for the committee, that is as strong as it gets: parts of this bill are likely to be incompatible with human rights.

It is a damning review. The human rights committee has found the new declared area zones offence to be incompatible with human rights. Other parts of the bill have caused the committee to raise concerns about the right to freedom of expression, the right to freedom of movement, the right to freedom from arbitrary detention, rights to privacy and rights to a fair trial as well as a presumption of innocence. And yet this bill-if the government, aided by Labor and some of the crossbench, have their way-will pass this place in three short hours, by 12.30 pm today. In the committee stage of this debate, we can see there are still so many questions about how it will really affect people into the future and what the implications are.

Late last night, the Attorney-General was at pains to reassure us that the concerns raised about this bill by some of the country's top legal experts in the area of human rights and civil liberties-the Gilbert + Tobin Centre of Public Law, the Law Council of Australia, the Castan Centre for Human Rights Law, Human Rights Watch, Professor Ben Saul and the Human Rights Commission-should not worry us.

But in the cold hard light of day once again we have to remember and take stock of what this bill is seeking to do and, if passed, what it will do. It will change whether and where people in Australia travel; it will change the circumstances in which people can be detained and questioned by ASIO, customs and police; it will change the kind of personal information that is captured and stored at the airport and the kind of public commentary or reflection on controversial issues that is legal. As we saw with the first tranche of national security legislation, it is simply too late to ponder the consequences and, in some cases, to rue them once the legislation has been passed. I know that if this law is to be passed in haste we will regret it at leisure. Over time we will come to fully realise the freedoms we have traded away for a situation that many say will not actually make us safer.

Coming to the offence of advocating terrorism, this is a new offence where a person will be guilty of the offence if they intentionally counsel, promote, encourage or urge the doing of a terrorist act or the commission of a terrorist offence and the person is reckless as to whether another person will engage in a terrorist act or commit a terrorist offence. It is a serious offence; it carries a maximum penalty of five years in prison. The Australian Greens' first amendment, item 12 on the sheet, substitutes 'an intention'-a fault element of intention-to commit the act for 'recklessness'. The Australian Greens say that this amendment is necessary because the offence of advocating terrorism in this bill duplicates and unnecessarily expands what are already existing criminal offences that capture conduct or speech that advocates the commission of terrorist acts. For instance, there is already an offence on Australia's statute books to urge another person to engage in intergroup violence or violence against members of groups. There is already an offence to recruit others to join terrorist organisations or organisations engaging in hostile activities against foreign governments. There are already incitement offences which cover a person who urges the commission of an offence, such as a terrorist related offence. It is already an offence to be a member of, or provide support to, a terrorist organisation. This Greens' amendment seeks to tighten the scope of this new proposed offence to ensure that it will only apply to those who intend to cause another to engage in terrorist act or commit a terrorist offence. This amendment is needed because this serious criminal offence, as it is currently drafted, only requires a person to be reckless as to whether another person will engage in a terrorist act or commit a terrorist offence.

Those legal commentators, from whom we have sought advice and whose position is similar to the position that the Australian Greens, are taking in relation to this are the Gilbert+Tobin Centre of Public Law, the Law Council of Australia and Human Rights Watch. I have a question to put to the Attorney-General. It has been suggested that the new offence of advocating terrorism duplicates and unnecessarily expands existing criminal offence provisions and contains terms that are so broadly defined that they will pose problems for prosecutors as well is potentially encroaching on freedom of speech. Attorney-General, can you please explain, in clear terms, what the term 'potential' means in the context of this offence? 

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