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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-09-23 Daily Xml
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Statutes Amendment (Terrorism) Bill

Second Reading

The Hon. K.J. MAHER (Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Aboriginal Affairs and Reconciliation) (13:00): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

After the events of September 11, 2001, Parliaments across Australia enacted cooperative and largely consistent legislation dealing with the threat of terrorism. In the case of South-Australia, there were three initial Acts.

The Terrorism (Commonwealth Powers) Act 2002 is a limited textual reference of powers to enact a suite of terrorism offences to the Commonwealth. The offences were swiftly enacted and are contained in the Criminal Code Act 1995. That constitutional arrangement has never been tested.

The Terrorism (Police Powers) Act 2005 gives a range of extraordinary police powers to State police in cases of terrorism emergency (or threatened emergency). It has never been used.

The Terrorism (Preventative Detention) Act 2005 essentially mirrors in State legislation the Commonwealth Criminal Code provisions about preventative detention with several major exceptions, notably (for constitutional reasons) that the State maximum detention is 14 days while the Commonwealth maximum detention is 2 days. It was agreed at the COAG meeting on 27 September 2005 to establish a nationally consistent regime for preventative detention orders. The Act has never been used, although equivalent legislation in New South Wales and Victoria has been used.

For the sake of completeness, it should also be mentioned that there is also the Terrorism (Surface Transport Security) Act 2011.

The national effort on terrorism is co-ordinated at the top rank officer level by the Australia-New Zealand Counter Terrorism Committee (the Committee). In order to provide legal expertise there is a sub-group called the Legal Issues Working Group which is activated as required and is responsible for providing legal and legislation advice to the Committee.

Section 31 of the Terrorism (Police Powers) Act 2005 says:

‘This Act expires on the tenth anniversary of its commencement.’

That date is 8 December, 2015.

Section 52 of the Terrorism (Preventative Detention) Act 2005 says that:

a preventative detention order, or a prohibited contact order, that is in force at the end of 10 years after the day on which this Act commences ceases to be in force at that time; and that a preventative detention order, and a prohibited contact order, cannot be applied for, or made, after the end of 10 years after the day on which this Act commences.

Again, that date is 8 December, 2015.

These time limits were set in the Acts as a safeguard against the possibility of abuse of the extraordinary powers contained in them. These fears have not been realised. The powers have not been used in this State and have been used sparingly and responsibly in other States.

There is no reason why these Acts should not be extended. There is every reason why they should be. The threat of terrorism that prompted this legislation, after what is now known as the al-Qaida attacks of 9/11, was real then. The context of terrorism has evolved, but the threat remains real. The growth of terrorist groups like ISIL (also known and proscribed in Australia as Islamic State) exert a growing negative influence in Australia through their continual and aggressive promotion of violent extremism including through the use of all forms of social media. In Australia, various planned and actual acts of violence can be attributed to the influence of ISIL. These include the Man Monis siege in NSW, the stabbing of two law enforcement officers in Victoria, and the NSW police arrest of two men who it is alleged were planning to behead random members of the public and police.

In response to the increased terrorism risk in Australia the National Terrorism Public Alert Level was raised to ‘high’ in September 2014 by the Australian Government. This increase in the alert level was based on assessments of the Australian Security Intelligence Organisation (ASIO) that a terrorist attack remains likely in this country.

In September 2014, preventative detention orders were used for the first time in Australia when the New South Wales Police Force sought and obtained three interim preventative detention orders (PDOs) under the Terrorism (Police Powers) Act 2002 (NSW).

Beginning in 2010, there was a COAG review of the terrorism legislation at Commonwealth level. The most obvious consequential effect for us was what would affect the preventative detention provisions (and hence our mirror provisions) and the text referral legislation (because it might affect the text referred). In addition to this review, and running parallel to it, was the legislation review conducted by the Independent National Security Legislation Monitor (INSLM), then Bret Walker SC.

While both the COAG and the Walker reviews supported the repeal of preventative detention orders, the COAG Response to the COAG Review, developed by the Legal Issues Working Group of the Committee, did not. The final COAG response identified compelling reasons for the retention of preventative detention powers and supported the renewal of Commonwealth orders beyond the then sun-setting date of 8 December 2015. These reasons focus on the imperative of recent events dealing with the review of the events surrounding the Monis siege and the foreign fighter issues.

The Government has decided to act on the COAG response. This bill amends both section 31 of the Terrorism (Police Powers) Act 2005 and section 52 of the Terrorism (Preventative Detention) Act 2005 to move the expiry of the former and the date until which a preventative detention order or a prohibited contact order under the latter remains in force from 10 to 20 years from commencement of the legislation.

Retention of this time limit recognises a continued recognition of the extraordinary powers contained in these Acts.

The continuation of these bills that provide preventative powers to police to address extraordinary threats of violence to the general community are essential in the current local and global environment.

I commend this bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Terrorism (Police Powers) Act 2005

3—Amendment of section 31—Expiry of Act

This clause amends section 31 to provide for expiry of the Act on the 20th anniversary of its commencement rather than the 10th anniversary.

Part 3—Amendment of Terrorism (Preventative Detention) Act 2005

4—Amendment of section 52—Sunset provision

This clause amends section 52 to prevent the continued operation of, or making of, preventative detention orders and prohibited contact orders at the end of 20 years after the commencement of the Act (rather than the current 10 years).

5—Transitional provision

This clause ensures that the amendments under this Part apply in relation to a preventative detention order or prohibited contact order whether the order was made before or after the commencement of the Part.

Debate adjourned on motion of Hon. J.M.A. Lensink.

Sitting suspended from 13:01 to 14:16.

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