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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-11-28 Daily Xml
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Statutes Amendment (Extremist Material) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 14 November 2017.)

The Hon. M.C. PARNELL (20:53): I will be brief in relation to the second reading component of this bill. The intent of the bill is certainly something the Greens support. The classic example usually presented is in relation to a person who might be in possession of bomb-making material, a precursor event, if you like, to an act of terrorism, and the question has rightly been asked whether the law is sufficient to charge that person with an offence that is, effectively, a precursor offence to an act of terrorism. Most of us get that; we understand it and we want our law enforcement authorities to be able to capture people before they commit terrorism offences rather than afterwards.

Having said that, there are some serious questions that need to be asked in relation to this bill, and I am grateful to the Law Society for writing to all members of parliament and setting out some of their concerns. There is a danger that bills like this, whilst they have every good intention and whilst they will have the general support of the parliament, may result in overreach and may result in unintended consequences.

The Law Society's submission makes the point that the criminal penalty that is being created here is in relation to being in possession of or having collected certain information, rather than whether it is the intent of the person that that material or information be used for terrorism. To use the Law Society's own words, they say that the effect of the insertion of section 83CA of the Criminal Law Consolidation Act, if enacted as drafted, would be to potentially render non-terrorist related activities terrorism and its participants terrorists.

The society suggests that if such a provision is to be included in the Criminal Law Consolidation Act, the offence should contain an element of intent or purpose; for example, a person who collects or possesses such information 'for a purpose connected with the commission of an act of terrorism'. The Law Society is taking a fairly standard and traditional approach to the criminal law, which suggests that a criminal intent is required as well as a criminal act.

In relation to the amendments to the Summary Offences Act, the Law Society raises an interesting issue about the definition of extremist material. They note that this is material that a reasonable person would understand to be directly or indirectly encouraging, glorifying, promoting or condoning terrorist acts, or seeking support for or justifying the carrying out of terrorist acts. It also extends to material that a reasonable person would suspect has been produced or distributed by a terrorist organisation.

Part of the challenge we have there is that we have a reasonable person test that is expected to modify a range of material, which most of us would find inoffensive or excusable. A few of us have been talking about this bill tonight, and I mentioned that I have quite an extensive collection of patriotic ballads from various conflicts, starting with the Irish Rebellion of 1798, right through to more recent conflicts. In fact, I told the anecdote of a certain former Labor minister—who may or may not have been called Patrick Conlon—who, in the members' refreshment room very late one night, was singing in full voice the ballad of Roddy McCorley.

Roddy McCorley was a terrorist. Roddy McCorley failed to understand that the British occupation of his country was in fact a very legitimate act that should have been supported. In fighting for the freedom of his people, he engaged in terrorist activities. For his trouble, he was hanged by the Bridge of Toome, as the ditty goes. It might sound as though I am being flippant, but my point is that I also have friends who are military enthusiasts and who have a great deal of material that they have collected.

A lot of the activity in the Boer War, in the late part of the 1890s, is generally regarded as guerrilla warfare, terrorism. The difference between a terrorist and a freedom fighter is who wins. If they won they were freedom fighters and if they lost they were terrorists, and they remained such. Some of this material would be generally out there, generally regarded as being of historical interest. Some people might even have an unhealthy interest in it. We see Neo-Nazis on the television glorifying some of the awful atrocities of the Second World War. I do not think that anyone is suggesting that whatever those people might be doing is directly involved in terrorism. It might be offensive, it might be something that is an affront to right-thinking people, but is it a terrorist-related activity?

The Law Society does question whether the scope of the bill is correctly pitched. Similarly, they raise questions about the exemption, if you like, or the defence, and that is the defence of legitimate public purpose. The bill does not specify how that exemption might apply. The Law Society, for example, says:

…the Bill does not specify…where religious texts stand. A number of international crimes classified as terrorism involved perpetrators invoking religious doctrines to justify their acts.

It goes on to give a couple of concrete examples:

The provision has the potential to criminalise the activities of local, non-government, diaspora, friendship, and advocacy, organisations, which are not connected with terrorism. For example, it has the potential to criminalise the activities of local organisations which support the creation of an independent state for the Kurdish people, or Palestinian people, respectively.

Whilst these concerns are important, and the Greens share them, ultimately the intent of the bill is one that we strongly support. We want to make sure that the police have the ability to ping people and to prosecute them when they have material that is clearly aimed at terrorism, whether it is bomb making or other material, but the Law Society's position is also defensible. In conclusion they say:

19. The provision does not look at the intent of the individual but rather what a 'reasonable person' would suspect and then, applies a narrow view of legitimate public purpose. There is a real danger that both offences created under this Bill will apply to people who are not about to commit an act of terrorism.

20. The Society does not support the Bill in its current form and would urge the Government and the Parliament to consider the redrafting of the Bill to address the issues raised above.

I wanted to put that briefly on the record. I know it is getting late in the piece and a large number of bills need to go through. The Greens share the concerns of the Law Society, but we will allow the bill to pass because we do not want to be seen to be nitpicking, and the overall intent of the bill is one that we support. We want our law enforcement authorities to be able to intervene early in the life cycle of radical extremists and to get people before they commit acts of terrorism.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (21:02): I thank honourable members for their contributions and their indications of support for the bill. I might just put a few matters on the record that might help the very speedy committee stage.

The opposition in the other place raised questions about the need for this legislation in South Australia when not all other jurisdictions have created comparable equivalent offences. In response to this, the Attorney-General arranged for senior officers from South Australia Police to provide a briefing to the opposition to explain their view for the need for this legislation and its objective to address conduct that has a known radicalising effect on susceptible people and, in doing so, to aim to prevent radicalisation and stop the progression to more extremism.

The Attorney-General explained during the debate on this bill in the other place that COAG is now investigating a proposal for the creation of a similar commonwealth offence in relation to the possession of extremist material, not requiring a connection between the dealing in extremist material and a terrorist act. I am informed that this was discussed by COAG after the development of this bill was already underway.

The strong preference of SAPOL and of the government was not to delay the introduction of these offences in South Australia to await the outcome of a potentially lengthy COAG process. That said, this does answer, to an extent, these questions. The recent announcement out of COAG indicated that it is very likely that there may be a similar commonwealth offence in due course. If and when that happens, the South Australian government can look at the implications of any commonwealth offence for South Australia and respond accordingly.

Another area that was raised by the opposition is the potential expansion of police powers. It is true that the bill will allow police to investigate and enforce those lower-level offences relating to conduct that is short of actual terrorism but nonetheless deemed to be unacceptable and dangerous conduct because of the radicalising effect of the extremist material. In the case of instructional material, it is high risk in terms of encouragement to commit a terrorist act. It is also possible that in investigating these lower level offences police may uncover evidence of a specific terrorist intention.

This bill does not create any new police powers. Existing police search powers will apply on reasonable suspicion of commission of the offence. The bill will enact powers for courts in proceedings for these offences to order forfeiture of extremist material and equipment used in the commission of the offence; for example, computers and the like. Equivalent powers already exist in the Summary Offences Act in relation to the indecent filming and sexting offences in part 5A of that act.

It is also proposed to introduce the same forfeiture provisions in relation to child exploitation material as part of the Statutes Amendment (Child Exploitation and Encrypted Material) Bill currently before the Legislative Council. The government considers these types of offence analogous in that respect. Reference has also been made, I think by the Hon. Andrew McLachlan, to comments made by the Law Society on the bill and in particular the notion that there should be an element of intent or purpose included in the offences, so that they do not apply to people who are not about to commit an actual act of terrorism.

The policy intent of this bill however is specifically to target conduct prior to the actual formation of an intent to commit or facilitate a terrorist act on the basis that collection or dissemination of extremist material in itself presents a risk in terms of radicalising susceptible people to the point where eventually they may form the intent to commit a terrorist act. The lower penalties attaching to the offence in the bill, as compared to the commonwealth terrorism offences, reflect the fact that these are lower level offences in this way. Again, I thank honourable members for their contribution to the second reading stage of the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. M.C. PARNELL: I have a quick question to the minister exploring an issue that I raised in my brief second reading contribution, and that is in relation to extremist material. These are the amendments to the Summary Offences Act. The test is whether a reasonable person would understand the material to be directly or indirectly encouraging, glorifying, promoting or condoning terrorist acts or seeking support for or justifying the carrying out of terrorist acts.

I can understand that if we are talking about current issues—someone who was glorifying the activities of ISIS for example or Al Qaeda, things that are fresh in our memory—you can see that that is part of a radicalisation process and you would want to try to nip that behaviour in the bud. However, I did use—not facetiously but legitimately—examples of historical people who hark back to the good old days of the IRA or activities of terrorism. Perhaps a classic example is Nelson Mandela. My recollection is that he went to gaol for blowing up electricity infrastructure. From memory, I think that was—

The Hon. D.W. Ridgway: Well, we have blokes doing it in this state—blowing up electricity infrastructure.

The Hon. M.C. PARNELL: I think that was—

Members interjecting:

The Hon. M.C. PARNELL: Anyway, focus.

Members interjecting:

The CHAIR: Order!

The Hon. M.C. PARNELL: My question is: is it the minister's understanding that these laws are targeted towards people who encourage, glorify, condone or justify terrorist activities that are in the current realm, rather than historic terrorist activities?

The Hon. K.J. MAHER: I thank the honourable member for his question and his reliving of some of the last century's great struggles. My advice is that the offences are not intended to capture material related to political dissent falling short of terrorism as it is defined. This is reflected by reliance in the drafting of the offences on the use of the term 'terrorist act' as defined in the Commonwealth Criminal Code. The definition of 'terrorist act' for the purpose of the offences expressly excludes an action or threat of action that is advocacy, protest, dissent or industrial action which is not intended to cause death or serious physical harm, nor to endanger life, nor to create a serious risk to public health or safety. That is the definition in the Commonwealth Criminal Code.

The Hon. M.C. PARNELL: I accept that and I do not need to pursue it further. I just make the point that Nelson Mandela is that classic example where he was convicted of being involved with people who were blowing stuff up. In the definition from the commonwealth law that the minister read out, whether there were people injured or killed as a result of that, I do not know; it happened a little bit before my time. I do not need to pursue it any further. The minister has put on the record that political activism is not covered. I just make the point that there can be a line and, as I almost facetiously said before, whether you are a freedom fighter and a hero depends on whether you are on the winning side of history or whether you remain a terrorist.

The Hon. A.L. McLACHLAN: I would like to thank whoever in the Attorney-General's Department wrote the minister's second reading summing-up because, obviously, after four years the Attorney-General's Department is used to all the things that I am interested in. I have them well-trained after four years in this parliament, have I not?

I would like clarity, and I suspect I know what the answer will be—it may have been addressed in the second reading summing-up but I did not quite hear it—in relation to religious texts because that is a major feature of the Law Society's letter. I would just like clarity around the concern that religious texts could come under this and I think we are looking, for the benefit of Hansard, to have that articulated.

The Hon. K.J. MAHER: I thank the honourable member for his question. He is quite right: the Attorney General's Department is well-equipped to respond to all the things the honourable member is interested in—the complete unabridged work of Keats, for example, that he is so fond of quoting. The advice that I am getting—and it seems to be the correct way to explain it—is to do it in the same manner as it was explained, in terms of the definition under the Commonwealth Criminal Code, as it relates to Mark Parnell's question, and I think the Hon. Mark Parnell's contribution probably applies to this in terms of religious material.

It is not included if it is an action or threat of action that is advocacy, protest, dissent or industrial action which is not intended to cause death or serious physical harm, nor to endanger life, nor to create a serious risk to public health and safety. I am sure that in different places around the world there will be those who would justify, as we have seen for many, many centuries, the commission of their offences and their terrorist acts based on their understanding of how they prosecute their religion. If it falls into that definition that we have adopted from the Commonwealth Criminal Code, then it forms a terrorist act as defined in this act as well.

The Hon. A.L. McLACHLAN: If I understand that correctly—because I want to specifically address this Law Society concern—my understanding of that answer, and I am not challenging it, is that a religious text, such as the Koran or a Bible, of themselves will not constitute material which this bill would be seeking to cover.

The Hon. K.J. MAHER: I do not have a very specific answer. I am not familiar with every line in the Koran or, in fact, the King James version of the Bible, or any other Bible for that matter. However, I reiterate the point that it is already a definition that is used and can be used to prosecute under the Commonwealth Criminal Code.

Clause passed.

Remaining clauses (2 to 5) and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (21:15): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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