The PRESIDENT (09:31): I remind senators that the question may be put on any proposal at the request of any senator.

The CHAIRMAN (09:32): The committee is considering Australian Greens amendment (12) on sheet 7594 moved by Senator Wright. The question is that that amendment be agreed to.

Senator WRIGHT (South Australia) (09:32): 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, the right to privacy and the right to a fair trial, as well as the right to 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 which 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 a 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.

The 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 as potentially encroaching on freedom of speech. Attorney-General, can you please explain, in clear terms, what the term 'promotes means in the context of this offence?

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (09:39): Let me respond to a few of the observations that have come from Senator Wright. First of all, Senator Wright, I wish you would not falsely claim that this legislation was rammed through the chamber last night. Each of the amendments—government, opposition, Green and Senator Leyonhjelm's—were dealt with by the chamber in an orthodox parliamentary debate, subject to no time limitation. There are time limitations in place later in the day, but last night's debate was not limited or circumscribed or foreshortened in anyway. You know that, Senator Wright, so why you would choose to say it was rammed through the chamber when in fact it proceeded in a routine, regular and orthodox parliamentary way I have no idea. Perhaps it is because you do not want to come to terms with the substance of the legislation that you make remarks like that.

Senator Wright, it is still not clear to me what your concern is. You seem to be saying in one breath that the problem with this new provision is that it duplicates existing law and therefore is unnecessary, and then in the very next breath you say it unnecessarily expands existing law and therefore takes the law beyond where it ought to be. You cannot have it both ways. You cannot say on the one hand that the provision is otiose because it merely restates what is already in the law and then in the next breath say the provision is dangerous because it takes the law too far beyond where it already is. It is not clear to me what your complaint is but, as I say, you cannot have it both ways.

The lacuna in the law that this provision seeks to fill is where the advocacy of terrorism is not caught by the existing law relating to the incitement of violence. That is the answer to your question. That is not merely my opinion; it is also the unanimous opinion of the Parliamentary Joint Committee on Intelligence and Security, which in its review of this bill observed—I am quoting from its report:

… the current incitement offence is not appropriate to capture the range of activity being encountered and investigated …

Senator Wright, I think you are a lawyer, are you not?

Senator Wright: I think you know I am, yes.

Senator BRANDIS: I thought you were. So you would be aware that the existing criminal law of incitement to violence requires a very direct correlation between the words that constitute the incitement and the violent act. But when we are dealing with the advocacy of terrorism—terrorism, as you know, is a defined term in the act—the immediacy of that correlation which the existing criminal offence requires is not always there. It is not necessarily there. This legislation seeks to address that area where the existing offence of incitement of violence is not available to prosecutors. It does that by saying:

(1) A person commits an offence if:

(a) the person advocates:

   (i) the doing of a terrorist act; or

   (ii) the commission of a terrorism offence … and

(b) the person engages in that conduct reckless as to whether another person will:

   (i) engage in a terrorist act; or

   (ii) commit a terrorism offence …

A terrorism offence is one of the existing terrorism offences set in part 5.3 of the Criminal Code. 'Advocates' is a defined term. 'Advocates' is not a term of art. It is not a term with a particular technical legal meaning, so it is defined by subclause 2 of the proposed section in these terms:

… a person advocates the doing of a terrorist act or the commission of a terrorism offence if the person counsels, promotes, encourages or urges the doing of a terrorist act or the commission of a terrorism offence.

What those words, those synonyms, seek to capture is the essence of advocacy, the essence of advocacy being an attempt by language or other verbal forms to persuade someone to do something. The relevant event being caught here is 'the doing of a terrorist act or the commission of a terrorism offence'. Now, Senator Wright, if you and your colleagues from the Greens party want to go out into the public space of Australia and say it should not be against the law to advocate the doing of a terrorist act or the commission of a terrorist offence, you go right ahead, Senator Wright. But the government believe, the opposition believe as well and most of the crossbench senators to whom I have spoken also believe that it should not be lawful in this country to advocate the doing of a terrorist act or the commission of a terrorist offence.

Lastly, Senator Wright, let me address what you said about freedom of speech. The Australian Greens having led the campaign against freedom of speech in the early part of this year, it seems to me, Senator Wright, that it is beyond bizarre that you would now be posing as a champion of freedom of speech. But, that being said, there is all the difference in the world between advocating the doing of a terrorist act or the commission of a terrorism offence, and expressing an opinion, bearing in mind that terrorism is defined in terms of violence or causing fear, on the one hand, and expressing a point of view, on the other hand. There is not a word in this bill—not a word—that impinges upon or restricts freedom of opinion. If a person wants to express radical views, if they want to promote or proselytise a radical view of the world or a non-mainstream view of the world, they are perfectly free to do so.

What they are not free to do and what they should not be free to do is to advocate the commission of a terrorist act or the commission of a terrorism offence, because that goes beyond merely the expression of an opinion. What that involves is encouraging or promoting or urging other people—almost always vulnerable people, I might say, who are susceptible to the injunctions of these predators—to do harm or violence to innocent people and, indeed, in many cases, to themselves. If, Senator Wright, that is okay with you, then that is a matter between you and your conscience. But I think most of the Australian people would agree with the government that it ought not to be lawful in this country to do so.

Senator WRIGHT (South Australia) (09:47): Attorney-General, I will pick up on a couple of things you said. First of all, I think you are a lawyer; is that right? Is my memory serving me correctly that you are a lawyer too?

Senator Ian Macdonald interjecting—

Senator WRIGHT: I did not start this, Senator Macdonald—so, a bit of respect, Senator Brandis. I do not think you would want to mislead either this chamber or the public who might be listening to this debate. First of all, let me make it really clear: at no time has this amendment sought to remove that provision. We are working with the bill that the government has drafted, but we are reflecting genuine and widespread concerns about the broad and risky potential of this offence to have unintended consequences for freedom of expression in Australia.

At no point did I say in my comments earlier that we should remove the term 'advocates'. I specifically referred to the word 'promotes' and I asked you a specific question about how that would be defined—and I allow you as a lawyer to tell us what would in fact amount to 'promoting' under this bill so that people who are listening have some idea of the type of behaviour or speech they may not be able to be involved with if the bill is passed.

I will say a couple of other things. One of them is that you quibbled with me about using the words 'ramming through' about these laws. Certainly, last night there was debate about various amendments that were being put up by the Australian Greens, by Senator Leyonhjelm and by the government. But the sad reality is that the time allowed for this debate has been truncated; there is a guillotine hanging over us—at 12.30. So, much as I would have liked to ask further questions about the amendments that were being moved last night, I had to be very careful, knowing that I had other, substantive matters to deal with today. That has been hanging over my head and, no doubt, over the heads of other people who might want to engage in the debate today. So that is why the Australian Greens say that there was no justifiable reason to have an arbitrary guillotine that allowed less than eight hours of debate in the Senate.

I will go to the question that I put to you, and I do not think I received an answer, because you went off to suggest that the Australian Greens somehow do not care about the safety of Australians and that we perhaps are not concerned about people who might be in the community advocating some form of violence against others in the form of terrorism. So I will come back to my question: can you please as a lawyer explain in clear terms what the term 'promotes' means in the context of this offence, given that 'promotes' is one of the words used to define the term 'advocating' or 'advocacy'.

Senator IAN MACDONALD (Queensland) (09:50): Before the minister answers that, I have a similar question about definitions, and perhaps he could address both at the same time. I am wondering if the minister could indicate what the term 'reckless' means in the passage that he read out here.

Before I elaborate on that, could I say I am flabbergasted that Senator Wright should be complaining about guillotining bills and restricting debate when I sat through six years of dysfunctional government supported by Senator Wright and her party, when no fewer than 150 bills were guillotined, some of them very important bills, with not one word of debate, Senator Wright. Where was your holier-than-thou opposition at that time? You were part of it. You and your party were part of that disgraceful episode in Australian politics where important legislation was indeed rammed through with not one word of debate. For you to get up and say that two days of debate is restriction really shows the hypocrisy of the Greens political party.

I support the general thrust of the government's legislation. I just want to indicate to the minister that, whilst some people say this does perhaps have restrictions on things that we might have been able to do in the past, I am one of those—and I think I speak for the majority of Australians here—who are prepared to forgo just a little bit of the freedoms that I would otherwise have had if it means that I and my family and the people that I know, love and respect are a little safer in their daily events and lives.

This is a situation which the government and the majority of Australians have not created, but it is a real situation. We are, I guess, lucky—and perhaps you make your own luck here. We are well prepared and we have in place a number of agencies and facilities that allow us to stop these terrorist acts before they happen. But I think that, when I and all Australians—indeed, all citizens of the world—see again just what happened in Canada last week, we cannot help but think that could happen here.

I have to say that for years I have left my front door of my office in Parliament House open, because I always want my office to look like it is welcoming. If people want to pop in and see me, they do it. I have to say that in the last few weeks I have started to shut the door in case someone comes through.

Senator Leyonhjelm: Mr Chairman, on a point of order: Senator Macdonald is continuing the second reading debate. The issue before the chair currently is the amendment moved by the Greens. We are operating under a guillotine—a time limit—and I think it would be appropriate if we return to the matter at hand.

Senator IAN MACDONALD: Mr Chairman, on the point of order: if Senator Leyonhjelm is that concerned, perhaps he should have taken the same point of order on Senator Wright when she was giving what was clearly a second reading debate speech.

The CHAIRMAN: Senator Leyonhjelm, I understand the point you are making, but it is not a point of order that I can rule on. I think the debate is still within the realms of the question before the Chair.

Senator IAN MACDONALD: I will be brief. I am conscious of the need to deal with a lot of amendments from all sides and I do want the minister to explain to me how the term 'reckless' is defined and how it operates in this context. Senator Leyonhjelm is quite right: I did not take part in the second reading debate because I did not want to take 20 minutes as most contributing speakers did, therefore restricting others from the debate. I think it is appropriate in dealing with Senator Wright's amendment to indicate my view generally on her amendment, on the amendments being proposed by the government and, indeed, the whole bill, which I hope will be passed as amended. I repeat that most Australians are prepared to forgo some of the rights we have had throughout our existence if it means that people who might otherwise be harmed or killed are protected in this country.

Over the years I have had bits to do with ASIO, the Crimes Commission and the Australian Federal Police through the different committees I have been involved in. They do a magnificent job but they always abide by the rules—the rules that are passed by parliament. The people whom they are competing against—the organised crime, the terrorist cells, those who would harm Australians—never follow one rule. They do not worry about human rights or getting warrants or unlawful killings—all that just happens as a matter of course. We have to give our agencies the maximum powers that a democracy can possibly give them to enable them to fight—not for anything they might get out of it—to protect me, my family and all other Australians. I think it is essential that, within the constrained limits that the Attorney-General has spoken about and that do understand the way Australian democracy and freedoms work, we do have to give them maximum amount of powers. If that means giving up a little of what we always thought we had in the way of freedoms, then most Australians—I think I can speak for them—are prepared to forgo them in return for keeping themselves, their families and their loved ones safe.

Minister, in answering Senator Wright's question, I wonder if you could address the issue of how 'reckless' is interpreted.

The CHAIRMAN: Thank you, Senator Macdonald. Senator Brandis? Senator Collins.

Senator JACINTA COLLINS (Victoria) (09:57): I thought it might be useful for the opposition to deal with our position before we go into what might be a more lengthy question-and-answer discussion. Senator Wright, we have reached the provisions in the bill that deal with the very important issue of advocating terrorism. During my second reading contribution and others from the Labor Party—we did have a rather limited second reading debate—I did not cover the full detail of Labor's concerns about this area to assist the committee stage consideration or, indeed, the amendments that we will be moving. I will do that when we come to our amendments, but in relation to this particular amendment (12) I should indicate, as I think Senator Brandis has already noted in his comments, that Labor supports a new offence for counselling or urging the commission of a terrorist act. We believe that it is right that this captures those whose reckless conduct leads to someone committing a terrorist act. This Green amendment would mean this offence goes no further than existing incitement crimes which would apply already where someone urges or counsels a terrorist act intending that act to be committed. Senator Wright, that is our specific concern in relation to your amendment (12).

On some broader issues, I understand that, like Senator Macdonald, Senator Dastyari did not have an opportunity to contribute to the second reading debate but also wants to highlight to the government some of the important issues around concerns in the community about how we need to get advocating terrorism right in this bill. I hope there will be some small scope in this committee consideration for Senator Dastyari to cover a few points for the opposition as well, appreciating the limited time that we have available.

Senator LEYONHJELM (New South Wales) (10:00): I do not want to unduly delay consideration of this amendment, but I do want to place on the record that I will support Greens amendment (12) moved by Senator Wright. I will also support Greens amendment (13). I will support the Labor amendments along the same lines. The intention of each of those is to limit the scope of the bill in relation to advocating terrorism, with various attempts to bring it closer to the definition of 'incitement', which I think is the appropriate approach. The Attorney-General says that 'incitement' is not appropriate. I am not a lawyer, just to make things clear, but I do think that something close to 'incitement' is the appropriate definition for this. I do not intend to speak on these amendments again, but I will be supporting each of these amendments—those of Labor and the Greens—to bring the definition of 'advocating terrorism' to something that I think we can live with.

I have to say that if it comes down to it I am probably an advocate of terrorism in terms of overthrowing the regime in North Korea and perhaps in Zimbabwe as well. We really are talking about specific circumstances in relation to this bill, yet the bill is not specific to those circumstances.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (10:01): Let me deal with the questions that have been put to me by Senator Macdonald and Senator Wright. Senator Macdonald, you ask for a definition of 'recklessness'. I know, Senator Macdonald, that you are a lawyer and, from my recollection—because we have known each other for a very long time—a much respected lawyer in North Queensland before you turned your career to public service. So, Senator Macdonald, as you would be aware, recklessness is a term with a technical legal meaning as well as a common-speech meaning. The concept of recklessness involves doing something heedless as to the consequences of one's conduct. So it is something more serious than negligence but something less serious than intention, because it does not involve the element of volition but it does involve the element of doing something heedless of the consequences for others of your conduct.

It is given a reasonably architectural definition in division 5 of the Commonwealth Criminal Code, which I might read, just to give you a complete answer. Section 5.4 of the Commonwealth Criminal Code defines recklessness in these terms:

   (1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

   (2) A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

   (3) The question whether taking a risk is unjustifiable is one of fact.

Senator Macdonald, what we are dealing with here is recklessness in relation to the commission of a terrorist offence or performing a terrorist act. The way in which the provisions of section 5.4 of the Criminal Code would be attracted, particularly subsection (2), recklessness as to a result, could be seen in a case like this.

Let it be said that somebody advocates the doing of a terrorist act. If, in their advocacy, they were aware that there was a substantial risk that that would occur—that is, the terrorist act they advocate—and, having regard to the circumstances known to them, it was unjustifiable to take that risk—that being a question of fact to be determined objectively by a jury—that is where the recklessness element would be satisfied, and that is what it means. So, to put flesh on the theoretical bones here, we have all seen instances—whether directly or on social media—of hate preachers advocating, and saying, particularly to young people, 'Go out and commit a terrorist act.' Now that is not the offence of incitement to violence, as I tried to explain to Senator Wright, because there is not the immediacy of the connection between the words and the act. But I think, Senator Macdonald, an experienced lawyer like yourself would well understand that that is a circumstance of recklessness. If you are a person who advocates to impressionable, radicalised youth, that they should go out and commit a terrorist act—a terrorist act being defined elsewhere, of course, as an act of violence for a religious, political or ideological cause—then it may very well be that a jury would conclude: 'You were reckless as to the consequences. You were more than negligent; you were reckless—because in those circumstances, there was a very substantial risk that the audience whom you were addressing would go and do the very thing that you were advocating.' I hope that satisfies your inquiry, Senator Macdonald.

Senator Wright asks what is the definition of promotion. Senator Wright, with respect, you asked the wrong question, because what is being prohibited here is 'advocacy', and 'promotes' is one of the four verbs that are used to define advocacy. So it is the 'advocacy' of a terrorist act or the commission of a terrorist offence, that attracts the operation of the new offence provision. To deal with your question directly, a court would read or interpret that word in the context of the words that appear around it, applying ordinary canons of statutory interpretation. So the word 'promotes' would take its meaning from the words around it in the statute: 'counsels, encourages or urges'. None of which, I see, you seek to omit. You are probably aware, Senator Wright, that there are certain areas of the law where the word 'promotes' does have a more technical meaning—for example, in the promotion of companies. But that is an entirely different area of law. So the word 'promotes' can have a technical legal meaning but in this case it does not; it has its ordinary, common-speech meaning, derived from the words that appear adjacent to it in the statute, and that much is made clear by paragraph 700 of the replacement explanatory memorandum. Let me read it to you, since you are not evidently familiar with it—

Senator Wright: No; I am familiar with it.

Senator BRANDIS: Well, then why did you ask the question, Senator Wright, if you are familiar with it?

Senator Wright: I can explain that.

Senator BRANDIS: However, let me read it to you:

The terms ‘promotes’ and ‘encourages’ are not defined. The ordinary meaning of each of the relevant expressions varies, but it is important that they be interpreted broadly to ensure a person who advocates terrorism does not escape punishment by relying on a narrow construction of the terms or one of the terms. However, some examples of the ordinary meaning of each of the expressions follow: to ‘counsel’ the doing of an act (when used as a verb) is to urge the doing or adoption of the action or to recommend doing the action; to ‘encourage’ means to inspire or stimulate by assistance of approval; to ‘promote’ means to advance, further or launch; and ‘urge’ covers pressing by persuasion or recommendation, insisting on, pushing along and exerting a driving or impelling force.

That is the way in which these expressions are treated in the replacement explanatory memorandum. But, as the explanatory memorandum also says—and as I said—the expressions will have their ordinary language meaning. Therefore, Senator Wright, you do not have to be a lawyer to know what these words mean. They have the same meaning in this section as they have in common speech. The courts and juries, I believe, given the guidance that this provision gives them, can be relied upon to decide whether or not conduct amounts to encouraging, urging, counselling or promoting.

Lastly, Senator Wright, because you did make some rather extravagant claims, I emphasise a point that is too often lost in this debate. We are criminalising conduct. You could not work out before whether this was unnecessary because it was already covered by the law or it was extravagant because it was not already covered by the law. But I think you settled on saying it goes too far because it is not already covered by the law. Whenever the parliament declares something to be unlawful and, indeed, a crime which is not currently a crime, it should do so after careful deliberation, which is why we are having this debate and why the Parliamentary Joint Committee on Intelligence and Security looked at this so exhaustively. But we should always remember that the ordinary principles of criminal law are not suspended. That means that the burden of proof lies on the prosecution to prove every element of the offence, including the recklessness element.

But, secondly, the criminal standard of proof also applies. Let's never forget that. In all of these debates we have about the language of particular statutes and safeguards, the greatest safeguard of all is a principle of English criminal law going back centuries—namely, that the standard of proof for a crime for every element of an offence is beyond reasonable doubt. That is the greatest safeguard of the law. It has been part of our law, as inheritors of the English legal system, for centuries. Every element of this offence, like any other criminal offence, needs to be proved beyond reasonable doubt.

Senator DASTYARI (New South Wales) (10:12): I think it is important that I begin by saying that, much like Senator Leyonhjelm, I am not a lawyer. Only in the rarefied air of the Australian Senate, Senator Leyonhjelm, do we have to apologise for not being lawyers! But I assure you that, while in this place we apologise for not being lawyers, once we leave the Senate chamber it is they who have to apologise for being lawyers!

I have a few questions for Senator Brandis, but I wanted to touch on something that Senator Macdonald said that I think was unintentionally clumsily phrased. Senator Macdonald made the point that he is prepared to give up some of his freedom for security and safety. That is the kind of language and debate that we have heard a lot in recent times when we talk about these things. While I see the point that Senator Macdonald is making, I always get concerned when people use that kind of language because I hold—and I know others in this chamber do as well; maybe almost everyone in this place does—a slightly more sophisticated view, which is that our safety stems from our freedom, not the other way around. I do not like the characterisation that we sometimes make in this place or in simplistic media commentary that there has to be some kind of trade-off between being free and being safe and that there is somehow an equilibrium. While I understand in a practical sense that they sometimes can come into conflict with each other, I think we have to be more sophisticated and more intelligent in how we approach these debates and start talking about how we can have an environment in which we are safe and secure that makes us more free, not less free. That is the challenge that we have in this place.

I also want to note that I have a lot of sympathy for where Senator Wright is going with her amendments. I am going to explain a bit about why I slightly disagree with her. The point that is being made here—that is, making sure the bar is high—is the right one. I did not have a chance to speak in the second reading debate and I do want to speak specifically to the amendments, but in doing so I will ask for a tiny bit of indulgence from the Senate to talk around the issues that relate to the amendment as well as the wording of the amendments. Senator Brandis, I think it is really important as we go forward and look at the amendments in this debate that we acknowledge the real obligation here is not just what we do as law-makers to set the regulations but how we engage with the communities themselves—the Muslim communities in particular, which are obviously more directly impacted by some of the debates that are happening—and how we create an environment of engagement with them. I want to note and put on the record the incredible work of adult of Muslim leaders around Australia, in particular, as I come from Sydney, people like Samier Dandan from the Lebanese Muslim Association, people like Dr Jamal Rifi, people like Maha Abda from the Muslim Women's Association and Muslim community leaders who have actually stepped up and said, 'This isn't part of our community. There is no place for this in our society. We do not support this.' When we have these debates we have a real responsibility to acknowledge and respect the fact that those Muslim community leaders at the coalface who are confronting these issues on a regular and daily basis deserve our encouragement and our acknowledgement of the work they do.

We talk about who the victims are of those who are out there inciting or encouraging or promoting—whatever language you want to use—terrorism. I do not want to forget the fact that the victims of this are not just those people in Syria, Jordan, Iraq and the Middle East region where foreign fighters go to fight. They are the victims, of course, but in a lot of cases you have impressionable young people at a very delicate age who are, let us face it—I would like to use the word that Senator Leyonhjelm used on the outside of parliament, but I do not believe that the word beginning with the letter 'd' and ending in the word 'head' is parliamentary, so I will not use it. We forget that they also can be victims of this. The community becomes a victim. Their families also become victims. In a lot of cases they are impressionable youth, a lot of whom come from south-west Sydney, and—I want to be honest here—a lot of their life experiences up to a certain point were not all that different from some of my life experiences. That makes me wonder about and question what influences they have had and what community influence has at times led those impressionable youths to make those kinds of decisions.

Those in the Senate chamber know me well. I was four when I came to Australia. I came from that part of the world. I was born in a small fishing village in northern Iran. I look at the incredible opportunity and experience that this country has given me and, when I see a 17-year-old youth on the front page of The Daily Telegraph out there making ridiculous statements halfway across the world, I question what led to that happening. Why I support a lot of this is that part of what these laws are doing is acknowledging that the people who also have a responsibility are the people who incite, who encourage, who promote and who push impressionable youth to make foolish and ridiculous decisions. I would say to Senator Brandis that where this legislation is going on that front is a good step and that the implicit acknowledgements we can make are that there are many victims of terrorism, that there are many victims of this kind of behaviour and that the community itself and the families of these people also become victims. The responsibility should and needs also to lie with them. Do not get me wrong: if people travel halfway around the world to participate in horrible, brutal acts they deserve to be punished and as they commit crimes they deserve to have the full force of the law thrown at them. But the people who are inciting them, the people who are pushing them, the people who are promoting them, the people who are using their positions of power over impressionable youth to make them make these foolish and improper decisions also deserve to have punishment. The wording of the amendment concerns me, Senator Wright. I understand the intention of what you are trying to achieve. I have a very strong view that these impressionable youths can also at times be victims, based on the information that they are being provided.

On the idea about how much time there is for the debate, I think Senator Wright makes a fair point about the guillotine and deliberations. I am not an expert in Senate procedure; I do not pretend to be. I do not know what is an appropriate amount of time.

Senator Jacinta Collins: You're not even a lawyer!

Senator DASTYARI: I'm not even a lawyer; that's right. I think what has been a good part of this process—I have spoken to other senators as they were going through the parliamentary committee process and the recommendations were being developed—has been the ability to have had some of this debate out there.

Senator Wright interjecting—

Senator DASTYARI: What is important is that there be more of this kind of debate. I will take the interjection from Senator Wright, who made the point that my party was part of those deliberations and through the committee process her party was excluded. If that is the case, that does not allow for good legislation. The opportunity to have those kinds of debates in the committee environment as a rule leads to better legislation and better amendments. I acknowledge that Senator Brandis has really gone out of his way to make sure that, from the perspective of the Labor Party, we were fully engaged in this debate. I think that adds to it.

I also acknowledge the real work that a lot of not just the Muslim community leaders that I mentioned earlier but the parliamentarians who have been engaging with the Muslim community. I was at Lakemba mosque on Saturday morning with Scott Morrison. That is not something that most people can say they have done. It was good to see the Minister for Immigration and Border Protection go there. I acknowledge that Senator Fierravanti-Wells in particular has spent a lot of time engaging with the emerging communities of Sydney and the Sydney Muslim communities. We have to be careful in the language we use in this chamber and about the message we send. I am not going to get into a debate now about things like the debate we had on the burqa and whatnot, but we have to be very careful that we are not sending the wrong signal to the sections of the community that are doing their best to try to engage, who want to be part of this process. We have to empower them, speak highly of them and bring them in as part of the process. I know the law enforcement agencies have really gone out of their way—they deserve our congratulations—to try to engage with the community. If the real issue here is a group of impressionable, young, mostly, men—I think almost all are men—from a Middle Eastern background, some of whom were born here, many of whom came here while they were quite young, as I did, then the best people to counter the narrative that they are getting, of hate and of the incitement of violence, are those within their own community. It is about empowering those kinds of voices.

Senator Brandis, turning more specifically to the question, I hope this question is not too far from the amendment so that it is one you can answer. I would not mind if you are able to touch on, while we talk about the specifics and the wording of this amendment, what the government is doing not just in the letter of the law but to try and make sure that we are engaging with Muslim community leaders and empowering them. When we talk about the issue of those who incite and those who encourage reckless behaviour we must talk not just about punishing those who have committed the crime but encouraging those who on the opposite end are trying to send the right kind of message to the community.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (10:24): The very message we are trying to send to the community is a message to discourage its members, particularly its young members, from engaging in this kind of conduct. In a sense, Senator Dastyari, once a person has been radicalised and once a person has travelled to Syria or northern Iraq to fight with ISIL—as, sadly, we have seen some young Australian men doing in media reports in recent days—in most cases, frankly, they are lost. They are lost. One aspect of social conduct that is very troubling is how swiftly apparently ordinary, everyday Australian youths can be radicalised. There have been many instances of individuals being radicalised in a very short span of time that we know about. That, Senator Dastyari, by the way is why we need to have this advocacy of terrorism offence. I do not seem to be able to get through to some members of the Senate, but I am sure you understand, Senator Dastyari, that, when you create a climate in which the advocacy of terrorism is acceptable, then you constrain your capacity to prevent those who by advocating terrorism encourage young men—sometimes unsure of their identity, sometimes unsure about the path or the course of their life, sometimes unsure about their belief system and where they fit into family or social structures—to embrace this radical solution.

So, Senator Dastyari, preventing young people becoming radicalised by measures, such as the measure we are now debating, is absolutely critical. The measures for the advocacy of terrorism are not directed, at least primarily, at the vulnerable young men who are the targets; they are directed to the evil old men who are the proselytisers, the predators and the advocates who seek to ensnare young men in this false, perverted and distorted version of the Islamic faith.

Another important element, Senator, is our engagement with Islamic communities. I am glad you were at Lakemba the other day with my friend Scott Morrison. He, Senator Fierravanti-Wells, I and many other members of the government in our own electorates and our communities have spent a lot of time—as I am sure opposition members of parliament like you have done as well—reaching out to these communities. I spoke in the debate last night about the many meetings I have had with leaders of the Islamic community to engage them as our partners in this task. They are some of the most enthusiastic supporters of this legislation—they are because they know it is designed to address a problem that arises, in particular, in their communities. It is intensely, deeply threatening to those communities and threatening to the vulnerable young people in their communities. We will continue to engage. When the Prime Minister and I announced a suite of measures on 5 August, one of the most important of those measures was a very substantial sum of money to invest in our Countering Violent Extremism programs, which are being delivered through the Australian Federal Police, through state police agencies and other government agencies.

There are other things that civil society does and can do. Only recently, on the day before the AFL Grand Final, I went to Melbourne to present the Bachar Houli Cup, which is a wonderful initiative promoted by the AFL in Melbourne. It recruits young Muslim men who want careers as AFL football players into a scholarship and mentoring program inspired by Australia's first great AFL player who professes the Islamic faith, Bachar Houli—it was my great privilege to meet him that morning—and engage them through sport. I can say, as a former sports minister, that engagement of young people through sport is one of the best possible ways of avoiding alienation and promoting a sense of belonging and inclusion. In a broad sense that is what the Prime Minister means whenever he uses the term 'Team Australia'—that we are all part of the team. In a narrow sense, that is what the AFL is doing, by saying to these young men who are participants in the Bachar Houli program, 'You are part of our particular team'—which is but an element of the great variety of the many community groups to which people feel a sense of belonging and which, in aggregate, amounts to 'Team Australia'.

Senator, the observations you have made are very wise, if I may say so. I know you have been very constructive in your own communities and networks, and have been a very constructive force in promoting this agenda of inclusion in trying to prevent young men feeling so alienated that they become radicalised and prey to the false doctrines of those who would seek to recruit them for evil purposes, to do violence to themselves and to others. The legislative element of this is only one element of a whole-of-government approach, and I appreciate the Labor Party supporting and seeing the wisdom of having this element securely in place.

Senator WRIGHT (South Australia) (10:31): I have a couple of very brief comments to make in response to the answers that the Attorney-General gave to my question about the meaning of 'promotes' earlier.

I would also like to seek the guidance of the chair. Last night, when I began to address this amendment (12) on sheet 7594, I indicated that I would like to move this amendment separately to amendment (13), although they are amendments that relate to the same offence of advocating terrorism. In the interests of time, I am wondering if it would be possible to deal with these two amendments together.

The TEMPORARY CHAIRMAN ( Senator Bernardi ): Senator Wright, that is entirely appropriate, if you would like to. Is leave granted for Senator Wright to move amendment (13)?

Senator Jacinta Collins: I would like to speak on the leave question.

The TEMPORARY CHAIRMAN: It is not a question; Senator Wright is seeking leave. Leave is either granted or it is not.

Senator Jacinta Collins: Leave is granted, but I want to address amendment (13), which I have not yet addressed.

Leave granted.

Senator WRIGHT (South Australia) (09:): I move Australian Greens amendment (13) on sheet 7594:

(13) Schedule 1, item 61, page 64 (line 1), omit "promotes,".

The TEMPORARY CHAIRMAN: We are now considering amendments (12) and (13) on sheet 7594 standing in the name of the Australian Greens.

Senator WRIGHT: I would like to do that; indeed, we have been discussing the second amendment inadvertently anyway, which is removing the word 'promotes' from the definition of advocating terrorism. We have been having a relevant discussion about that particular amendment.

If I could come back to the question that I posed to the Attorney-General, which was asking for what the meaning of the word 'promotes' is. The Attorney-General suggested that it takes its ordinary meaning. In that case, I guess any of us in the chamber would probably be equipped to try to define what 'promotes' means.

The Attorney-General tried to reassure me about the concerns that I was expressing, but that have also have been expressed by many legal commentators, about the broadness of the word 'promotes' and the uncertainty that that would create, in terms of understanding whether particular behaviour would be defined to be promoting terrorism. The Attorney-General was wanting to reassure us that if it went to a court case and a prosecution, then the burden of proof is 'beyond reasonable doubt'. However, one of the concerns raised is that, when we are dealing with laws that do not define particular behaviours with certainty and clarity, there is a chilling effect on those people who do not want to end up in a court where the prosecution has to be put to the standard of proof of beyond reasonable doubt. The risk is that people will pull right back from what would, potentially, be considered to be legitimate activity—because they are justifiably fearful about the consequences.

The Attorney-General also sought to reassure us that the government's view on what 'promotes might mean is set out in the explanatory memorandum. But—as Senator Leyonhjelm has pointed out several times in this debate already—courts, in interpreting legislation, will only have recourse to the explanatory memorandum if they feel it necessary to do so. In fact, it is quite rare. They would generally prefer to look at the wording of the offence itself in the legislation. That is why it is also desirable to have clarity and certainty about what words and terms mean.

An example that has been raised by legal commentators to illustrate the risks associated with having terms like 'promotes'—where it is not really clear how far they extend—is that of a person who 'likes' a Facebook comment which contains a favourable reference to terrorist activity. Would that fall within the definition of 'promoting or advocating terrorism to others'? What about someone who is wearing a T-shirt with an ISIL symbol on it? Although that is not a T-shirt that would be in my wardrobe, and I would not be encouraging my kids to wear it—it would be abhorrent to me—that would be, arguably, a legitimate form of political expression in Australia. I think most of us would be reluctant to prevent it—someone indicating an allegiance to something that we do not necessarily agree with. But there are serious issues here about freedom of expression and how far that freedom of expression may be affected by this legislation. So in absolute good faith, that is the reason that, if we cannot get clarity about the word 'promotes', the Greens will be seeking to have the word 'promotes' removed from the definition of 'advocating terrorism'. That is all I intend to say in this debate. I seek leave to move these amendments together.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (10:36): Chairman, could I respond to that, before Senator Collins makes her contribution?

The TEMPORARY CHAIRMAN: Yes.

Senator BRANDIS: Senator Wright, I have told you and I have pointed out to you the relevant paragraph of the explanatory memorandum. The word 'promotes' has its common-speech meaning, so please do not say to the chamber that I cannot tell you what it means, when I have just told you what it means and I have just directed you to a longish discussion about the meaning in the explanatory memorandum. Frankly, Senator Wright, because it has its common-speech meaning you need look no further than the Oxford English Dictionary or the Macquarie Dictionary to satisfy yourself what the word means if you do not already know.

There is no useful purpose to be served by imagining hypothetical instances of what may or may not be caught by a statutory definition expressed in common English, because that is what courts do. We have a separation of powers in this country. It is not for the parliament to define, by legislation or by regulation, every single imaginable instance. That would be bad legislative practice. It is not for the parliament to set out in an act of parliament whether, for example, a T-shirt or a particular form of words is caught by a general statutory prohibition. That is what courts do. They apply the generic language of statutes to the facts of particular cases.

I think we can rely upon and trust the judges and juries to apply this clear statutory language to particular instances. The debate is not served by imagining instances which could conceivably come before the courts and ask, 'What does the statute have to say about that?' That is not our job. It is not my job as the Attorney-General and the person moving this bill; it is not your job or our jobs as senators deliberating upon this bill; it is the job of the courts to apply the law.

Senator Wright, I do not think I need go beyond that. I have already made the point. I do not want to be tedious and repeat myself, but it does not seem to be getting through to you that this is not about freedom of expression. This is about the advocacy of terrorism. The advocacy of terrorism is not the expression of an opinion; it is the injunction to an act of violence. If you cannot see the distinction, Senator Wright, I suspect most senators can.

Senator JACINTA COLLINS (Victoria) (10:39): As I indicated before, I am happy for the Greens to move amendments (12) and (13) together. However, my earlier comments were quite discrete with respect to amendment (12). Whilst I indicated that we were now dealing with the 'advocating terrorism' element of the bills and that we had circulated amendments to deal with that issue, I would like to deal with Labor's position in more detail at that stage.

I should now, for the benefit of the Senate, indicate that Labor has circulated revised and further amendments because, through further consideration and discussions, we have determined to take a different approach to dealing with this issue. I will come to the detail of those when I receive advice as to where in the running sheet we should address those amendments.

With respect to Greens amendment (13), which was similar to our previous approach, in the amendments that we first provided, I should indicate that on the basis of Labor's new approach addressing this issue we would be opposing amendment (13) with respect to removing the word 'promote'.

I appreciate the Greens' concern here. Indeed, up until recently we had sought to address the issue in a similar way. On the basis of further advice—senators will see our changed position in amendments on sheet 7605—we believe that this approach ensures that our concerns that the breadth of these provisions not touch behaviour which would not be reasonably regarded as advocating terrorism are dealt with in this new fashion.

The TEMPORARY CHAIRMAN ( Senator Bernardi ): The committee is considering the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 and amendments (12) and (13) on sheet 7594 standing in the name of the Australian Greens and moved by Senator Wright. The question is that the amendments be agreed to.

Question negatived.

The TEMPORARY CHAIRMAN: We will now move to opposition amendments. Is it appropriate, Senator Collins, for us to deal with opposition amendment (1) on sheet 7601 (revised) and opposition amendment (1) on sheet 7605 concurrently, now?

Senator JACINTA COLLINS (Victoria) (10:43): At this stage I hope to proceed simply with amendment (1) on sheet 7605. I move the amendment:

(1) Schedule 1, page 64 (after line 14), after item 61, insert:

61A After subsection 80.3(1)

Insert:

(1A) Without limiting subsection (1), section 80.2C does not apply to a person who engages in good faith in public discussion of any genuine academic, artistic, scientific, political or religious matter.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A). See subsection 13.3(3).

61B Subsection 80.3(2)

After "subsection (1)", insert "or (1A)".

As I mentioned before, these deal with our further considered approach in relation to managing our concerns about advocating terrorism. As we have indicated, we are concerned about the breadth of the new 'advocating terrorism' offence. In our consultation with the Australian community—and especially with representatives of the Muslim community, that I think Senator Dastyari has covered today—we have heard concerns that this new offence might capture quite legitimate speech on controversial political matters or that it might capture legitimate religious discussion, debate or preaching.

Labor agrees with the need for an offence addressing conduct which might cause others to engage in terrorism. We know that there is a line to be carefully drawn. We would never want to criminalise legitimate religious conduct or to cause the Muslim community to fear that honest religious activity would be criminalised. That would be completely contrary to our purpose.

Labor's amendment would expand the existing good faith defence in section 80.3 of the Criminal Code as it applies to the new advocacy of terrorism offence to make it clear that those who engage in good faith in public discussion of any genuine academic, artistic, scientific, political or religious matter will be protected from liability. We think this strikes the right balance. We support the new offence, but we want to make sure that it does not capture innocent conduct. We think that this amendment will make sure that this new offence does not go too far.

I am in the hands of the Senate as to whether, given that these amendments have been recently circulated, we might want to defer consideration to a later stage in the committee stage of debate to allow some consideration of the detail of these. Maybe I will add some humour to the debate at this stage. I also am not a lawyer. It might entertain senators to understand that Senator Brandis, many years ago, had assumed I was a lawyer, to which I laughed and indicated that it might have been my major in logic!

Senator Brandis interjecting—

Senator JACINTA COLLINS: This was many years ago, Senator Brandis, I think in the context of the 'children overboard' investigation. That said, I obviously have been dealing with making laws for many years. I appreciate that some time to consider the new approach that Labor has taken on this issue might be important to other senators, so I am in their hands as to whether they might seek to defer dealing with these amendments until later in the debate, if some further consideration is warranted.

Senator WRIGHT (South Australia) (10:46): I am in a position to indicate to the opposition that the Greens would be happy to deal with this now and that we would be supporting the amendment.

Senator LEYONHJELM (New South Wales) (10:46): I also wish to advise that I will support this amendment. It is very well drafted, very well thought through and I think it would be difficult for the government to oppose it. Bear in mind that we have had the word 'bipartisan' used a great deal in the debate about this bill and also the national security bill that we considered last month. I just make the comment that I think bipartisanship works both ways.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (10:47): The government opposes the Labor Party's amendment. This is, as Senator Collins has said candidly, the second position the Labor Party has taken on this issue. There has been some reconsideration evidently within the Labor Party's inner circles. I welcome the fact that the initial amendment has been withdrawn, but nevertheless the government cannot support this amendment. We do not support the amendment for a very simple reason, Senator Collins: it is entirely unnecessary because what the amendment does is provide—we are talking about 7605 at the moment?

The TEMPORARY CHAIRMAN ( Senator Bernardi ): No, Senator Brandis. We are dealing with 7601.

Senator BRANDIS: I am sorry.

Honourable senators interjecting—

The TEMPORARY CHAIRMAN: No, I beg your pardon, senators. We are dealing with 7601.

Senator BRANDIS: That is not what Senator Collins was talking about. She was talking about 7605.

Senator Jacinta Collins: Amendment (1) on 7605.

Senator BRANDIS: Senator Collins and I understand each other. We are dealing with a proposed amendment to subsection 80.3(1) of the Commonwealth Criminal Code, by which the opposition would include a provision specifying that section 80.2C—that is, the advocacy of terrorism offence—does not apply to a person who engaged in good faith in public discussion of any genuine academic, artistic, scientific, political or religious matter. The government opposes this amendment for a couple of reasons. On a narrow reading it is unnecessary because what section 80.2C would do is make it an offence to advocate terrorism—to advocate the commission of a terrorist offence or to engage in a terrorist act. It is inconceivable that a person could, if they are advocating the commission of a terrorist offence or engagement in a terrorist act, be merely acting bona fides in a public discussion of political or religious matters.

The amendment that Senator Collins has moved, for reasons I explained to Senator Wright earlier in the morning, is quite unnecessary. There is nothing in the proposed advocacy of terrorism offence which would capture the expression of political or religious opinions, unless they were to trespass beyond being merely the expression of opinions and become the advocacy of violence. That is what this captures. The distinction between the expression of opinions and the advocacy of violence is a very clear distinction. So the Labor Party amendment, on a strict view, is unnecessary.

It is also invidious for another reason. You will recall that I said to Senator Wright before that we should always conduct these debates about the introduction of new criminal offences mindful of the fact that the onus of proof lies on the prosecution to prove beyond reasonable doubt before a jury that every element of the offence has been committed, and the jury must also consider any defences that might be raised. The very vagueness of the terms 'academic', 'political' or 'religious' matters as such could very well cause confusion in the minds of jurors. I would not expect that the typical juror would be a scholar of the Koran. Let us say that, in relation to a particular prosecution in which terrorism was advocated, it was said by an expert witness, 'This is really consistent with a particular passage of an Islamic holy book.' There are a variety of claims made about every religious faith. There are a variety of contestable claims made about what constitutes the doctrine of every religious faith. I have said from start to finish in this debate that Islam is a religion of peace and that those who preach the doctrines of ISIL and Jabhat al-Nusra and the other radical deviants from that religion do not represent the views of that religious faith. But let us say that in a prosecution a particular scholar with a particular point of view were to contend to the contrary. Does that mean that a jury could not be satisfied beyond reasonable doubt that there should be a prosecution even though what was involved constituted the advocacy of terrorism? So I think, from a technical point of view, this amendment is unnecessary, but from a practical point of view, from the point of view of giving effect to the amendment in the real-world circumstances of a criminal prosecution, it may very well defeat the effect of section 80.2, and that is why the government oppose it and we call on the crossbenchers other than the Greens—who, of course, would support this—to oppose it as well.

The TEMPORARY CHAIRMAN (10:53): For the purpose of the committee, I called upon 7601 when I called Senator Collins, but we will deal with 7605. Senator Collins, I would now invite you to move that amendment formally.

Senator JACINTA COLLINS (Victoria) (10:53): Thank you, Chair. I am happy to move as you suggested, but I understood that, when encouraged to deal with 7601 and 7605, I said I sought to just proceed with 7605.

The TEMPORARY CHAIRMAN (10:54): That is fine.

Senator JACINTA COLLINS (Victoria) (10:54): I have moved it, but I am happy to do so again if it clears that up. As I think I said previously, I was prepared to defer consideration of this, but the senators in the chamber have indicated their positions. The government has too. I am quite disappointed that, given the consultation and effort that has been put into settling this matter, the government has indicated that it will oppose these amendments. Although senators on the crossbench may not have been party to those discussions, into which some considerable effort has been put overnight, to try to reach an acceptable understanding, I would encourage them to understand that these amendments represent a move from Labor's first approach to address this very important issue, as was highlighted by Senator Dastyari. The Australian community's concern is that we get this balance and this provision right, since it is important to our multiculturalism, to our nation and to protecting Australians, whatever their race or creed. I encourage senators on the crossbench, even reflecting on the reservations that Senator Brandis may have made, to err on the side of caution and to support these amendments on that basis.

The TEMPORARY CHAIRMAN (10:55): I invite you to move the amendments, Senator Collins.

Senator JACINTA COLLINS (Victoria) (10:55): I thought I had moved them twice now.

The TEMPORARY CHAIRMAN (10:55): No. The first time, Senator Collins, you put it to the Senate about deferring the amendment and you never actually moved it, that I recall.

Senator JACINTA COLLINS (Victoria) (10:55): I do so move.

The CHAIRMAN: The question is that opposition amendment (1) on sheet 7605 be agreed to.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:04): by leave—I move government amendments (17), (18) and (21) together:

(17) Schedule 1, page 64 (after line 16), after item 62, insert:

62A Subsection 100.1(1) of the Criminal Code

   Insert:

   engage in a hostile activity has the meaning given by subsection 117.1(1).

(18) Schedule 1, item 71, page 66 (lines 24 and 25), omit "(within the meaning of subsection 117.1(1))".

(21) Schedule 1, item 73, page 67 (lines 11 and 12), omit "(within the meaning of subsection 117.1(1))".

These amendments are technical amendments. Amendment (17) inserts a definition for the term 'engage in a hostile activity' into section 100.1 for the purposes of part 5.3 of the Criminal Code. Amendment (21) is a consequential amendment to amendment (17). The effect of the amendments would be to provide that for the purposes of part 5.3 of the Criminal Code 'engage in a hostile activity' has the same meaning as it has where it is defined in the new section 117.1(1) of the Criminal Code. The amendments amend the need to cross-reference that subsection each time the expression is used.

Question agreed to.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:05): by leave—I move government amendments (19), (20) and (22) to (24) together:

(19) Schedule 1, item 71, page 66 (line 26), omit "or a foreign country".

(20) Schedule 1, item 71, page 66 (after line 29), at the end of paragraph 104.2(2)(b), add:

      ; or (iv) been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914).

(22) Schedule 1, item 73, page 67 (lines 13 and 14), omit "or a foreign country".

(23) Schedule 1, item 73, page 67 (line 17), omit "and", substitute "or".

(24) Schedule 1, item 73, page 67 (after line 17), after subparagraph 104.4(1)(c)(iv), insert:

      (v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); and

These amendments implement recommendation 9 of the Parliamentary Joint Committee on Intelligence and Security by separating the grounds for requesting, making, confirming and varying a control order on the basis of a conviction for a terrorism related offence in Australia, on one hand, and a foreign offence. These amendments also limit the ground in relation to foreign convictions to circumstances where the conduct that resulted in the conviction would be a terrorism offence if it occurred in Australia. The practical effect of the amendments is to require a correlation between a foreign conviction and conduct that would be considered a terrorism offence in Australia. As such, these amendment seek to provide confidence that the control order regime will apply only in relation to the recognised Australian standards of criminal law.

Question agreed to.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:07): I move government amendment (25):

(25) Schedule 1, page 69 (after line 20), after item 81, insert:

81A Subsection 104.23(1) of the Criminal Code

   Repeal the subsection, substitute:

(1) The Commissioner of the Australian Federal Police may cause an application to be made to an issuing court to vary, under section 104.24, a confirmed control order, by adding one or more obligations, prohibitions or restrictions mentioned in subsection 104.5(3) to the order, if the Commissioner:

   (a) suspects on reasonable grounds that the varied order in the terms to be sought would substantially assist in preventing a terrorist act; or

   (b) suspects on reasonable grounds that the person has:

      (i) provided training to, received training from or participated in training with a listed terrorist organisation; or

      (ii) engaged in a hostile activity in a foreign country; or

      (iii) been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or

      (iv) been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914).

This amendment further implements recommendation 9 of the Parliamentary Joint Committee on Intelligence and Security by separating the grounds for requesting a variation of a control order on the basis of a conviction for a terrorism-related offence in Australia on the one hand and a foreign offence. It is, in a sense, an analogue of the previous amendments.

Question agreed to.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:07): by leave—I move government amendments (28), (29) and (30) together:

(28) Schedule 1, item 94, page 72 (lines 10 and 11), omit the item, substitute:

94 Paragraph 105.8(6)(a) of the Criminal Code

   Repeal the paragraph, substitute:

   (a) any of the following:

      (i) the true name of the person in relation to whom the order is made;

      (ii) if, after reasonable inquiries have been made, the person's true name is not known but an alias is known for the person—the alias of the person in relation to whom the order is made;

      (iii) if, after reasonable inquiries have been made, the person's true name is not known and no alias is known for the person—a description sufficient to identify the person in relation to whom the order is made; and

(29) Schedule 1, page 72 (after line 20), after item 95, insert:

95A Subsection 105.8(8) of the Criminal Code

   After "must", insert ", as soon as reasonably practicable after the order is made".

(30) Schedule 1, item 96, page 72 (lines 21 and 22), omit the item, substitute:

96 Paragraph 105.12(6)(a) of the Criminal Code

   Repeal the paragraph, substitute:

   (a) any of the following:

      (i) the true name of the person in relation to whom the order is made;

      (ii) if, after reasonable inquiries have been made, the person's true name is not known but an alias is known for the person—the alias of the person in relation to whom the order is made;

      (iii) if, after reasonable inquiries have been made, the person's true name is not known and no alias is known for the person—a description sufficient to identify the person in relation to whom the order is made; and

96A Subsection 105.12(8) of the Criminal Code

   After "must", insert ", as soon as reasonably practicable after the order is made".

These amendments implement recommendation 11 of the Parliamentary Joint Committee on Intelligence and Security by providing that an initial preventative detention order can only be made in relation to an alias or by using a description of the person where the person's true name is not known and the description is sufficient to identify the person. The effect of the amendment is to ensure that a preventative detention order can only be made using an alias or description of a person where the issuing authority is confident that the alias or description satisfactorily identifies the person.

Question agreed to.

Debate interrupted.

Senator POLLEY (Tasmania) (11:08): by leave—I present a further report from the Scrutiny of Bills Committee on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 and move that the report be printed.

Ordered that the report be printed.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:09): I move government amendment (33):

(33) Schedule 1, item 109, page 76 (after line 17), after subsection 106.5(4), insert:

   (4A) Section 104.23, as amended by Schedule 1 to the Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014, applies to variations of control orders, where the relevant interim control order is requested after that commencement.

This is an application provision. It provides that the amendments to section 104.23 of the Criminal Code, which authorise the Australian Federal Police commissioner to seek a variation of a control order on any of the grounds for requesting a control order, include the new foreign-fighting and terrorism conviction grounds. The effect of the application provision is to ensure that the ability to vary a control order applies only to a control order requested after the bill comes into operation.

Question agreed to.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:10): by leave—I move government amendments (34) to (39) together:

(34) Schedule 1, item 110, page 77 (line 23) to page 78 (line 14), omit the definition of engage in a hostile activity in subsection 117.1(1), substitute:

   engage in a hostile activity: a person engages in a hostile activity in a foreign country if the person engages in conduct in that country with the intention of achieving one or more of the following objectives (whether or not such an objective is achieved):

   (a) the overthrow by force or violence of the government of that or any other foreign country (or of a part of that or any other foreign country);

   (b) the engagement, by that or any other person, in action that:

      (i) falls within subsection 100.1(2) but does not fall within subsection 100.1(3); and

      (ii) if engaged in in Australia, would constitute a serious offence;

(c) intimidating the public or a section of the public of that or any other foreign country;

   (d) causing the death of, or bodily injury to, a person who is the head of state of that or any other foreign country, or holds, or performs any of the duties of, a public office of that or any other foreign country (or of a part of that or any other foreign country);

(e) unlawfully destroying or damaging any real or personal property belonging to the government of that or any other foreign country (or of a part of that or any other foreign country).

(35) Schedule 1, item 110, page 78 (lines 15 and 16), omit the definition of engagein subverting society in subsection 117.1(1).

(36) Schedule 1, item 110, page 78 (after line 31), after the definition of recruit in subsection 117.1(1), insert:

   serious offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for 2 years or more.

(37) Schedule 1, item 110, page 79 (lines 8 and 9), omit paragraph 117.1(2)(b), substitute:

   (b) the engagement, in Australia or a foreign country allied or associated with Australia, in action that falls within subsection 100.1(2) but does not fall within subsection 100.1(3); or

(38) Schedule 1, item 110, page 79 (line 12), after "relations", insert "(within the meaning of section 10 of the National Security Information (Criminal and Civil Proceedings) Act 2004)".

(39) Schedule 1, item 110, page 79 (line 13) to page 80 (line 7), omit subsections 117.1(3) and (4).

Amendments (34) to (39) implement recommendations 15 and 16 of the Parliamentary Joint Committee on Intelligence and Security by replacing the phrase 'engages in subverting society,' which is one of the elements of the definition of 'engage in hostile activity,' with a cross-reference to the conduct contained in the definition of 'terrorist act' in section 100.1 of the Criminal Code. These amendments also constrain that element to conduct that would be a serious offence—one that carries at least two years imprisonment if undertaken within Australia. The two-year threshold is consistent with the definition of 'serious offence' in section 3C of the Crimes Act.

Question agreed to.

Senator WRIGHT (South Australia) (11:11): I just want to seek the guidance of the chair. The Australian Greens also have amendments in this particular area. We have a series of amendments, but the first amendment that we would be moving would be to oppose the section of the act which creates the declared areas zone. I ask leave of the committee to that extent, to move the Australian Greens amendment first so that we can be clear on whether or not the committee is willing to support that amendment. It would just make sense logically to deal with that first and then move to the opposition's amendments.

The CHAIRMAN: I think that does make sense, but I have been following the order on the running sheet. I will just get some guidance from Senator Collins on whether she objects to that and also from the minister. There does not seem to be any objection. Senator Wright, if you could now move amendment (16).

Senator WRIGHT (South Australia) (11:12): I would like to speak that briefly, but I do appreciate indulgence of the committee on this. Thank you.

Senator BRANDIS: Senator Wright, could I ask some clarification, please? I think your amendments (16) and (17) are related, and I think amendments (18) and (19) might be as well. Are you just moving (16)? Or should we deal with all of your amendments on declared areas at the same time?

Senator WRIGHT: I am really at the indulgence of the committee. I am not wishing to gazump the debate, so I would be interested to know if Senator Collins would be prepared to agree to that. I would be happy to do that because it might be more efficient. Otherwise, we will just move the aspects of our amendments which would seek to knock out the no-go zones.

The CHAIRMAN: If I could just intervene. Amendments (16) and (17) have to be put separately, anyway. I am happy if the debate goes across the three of them, if it is the will of the committee at the time. Maybe if you just move (16) and, if people want to talk to the three amendments, that will be fine.

Senator WRIGHT (South Australia) (11:14): I move Australian Greens number (16) on sheet 7954:

(16) Schedule 1, item 110, page 82 (line 1) to page 85 (line 10), sections 119.2 and 119.3 to be opposed.

On moving item (16), being Australian Greens amendment to remove the declared areas offence in the bill, the bill seeks to create a new offence of entering or remaining in a declared area, which would be punishable by 10 years imprisonment, so it is a significant offence. Under the provision, if it were to be passed, areas in a foreign country can be declared by the Minister for Foreign Affairs, by way of legislative instrument, if he or she is satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country. Declarations can last for a maximum of three years.

There is a narrow legitimate purpose defence available for those charged with the substantive offence. The Australian Greens amendment (16) would remove the proposed no-go-zone offence from the bill because it is considered that this offence will unnecessarily and disproportionately restrict freedom of movement in Australia. Certainly views have been expressed and the Greens are of the view that this is potentially an extremely counterproductive outcome. It risks entrenching feelings of isolation and alienation in the very communities in Australia that we rely upon to assist in this fight against terrorism and in order to build social cohesion and inclusion in the Australian community because this offence, if it stays, will criminalise what is perfectly legitimate travel. It will make it punishable by 10 years imprisonment for a person to travel to a declared area and because there is no fault element required, it has the practical—if not the technical—effect of reversing the onus of proof. It would require anyone who is charged with the offence after having travelled to a declared area to bring their own evidence to demonstrate that their travel was not only to fall within a narrow list of legitimate purposes but also that that travel was solely for that reason. For instance, an elderly couple who are travelling to a declared area to visit a dying friend or a young person who is travelling to a declared area to study, or a business person who remained in an area, after it had become a declared area, to conclude a business deal, there is no need to establish any criminal intent. Those people would be subject to potential prosecution upon returning to Australia. Even where there is a legitimate purpose provided for in the offence such as a journalist, they remain liable to be charged with the offence, brought before a criminal court and required to bring evidence to prove that journalism was the sole reason for their travel to escape conviction.

The legal experts we have been paying attention to have stated that this is yet one more example of a completely unnecessary new offence. The expert advice in this area which we would be referring to is advice from the Law Council of Australia, the Gilbert and Tobin Centre for Public Law, the Australian Human Rights Commission, Professor Ben Saul, Human Rights Watch and the Human Rights Law Centre. The Parliamentary Joint Committee for Human Rights has also expressed concerns about the potential incompatibility of this provision with human rights in Australia.

Australia's criminal laws, which we asked the chamber to consider, already cover well and truly circumstances where a person leaves Australia in order to participate in hostile or terrorist activities overseas, as well as circumstances where a person encourages or urges another person to engage in such activities or a person who financially or otherwise supports terrorist or criminal organisations. That is the reason that the Australian Greens are moving to have this offence removed from the bill. I have some questions to which I really would appreciate the Attorney-General's response. The first I will put to the Attorney-General in relation to the offence as it stands in the bill at this stage is why the government has chosen to frame this offence in such a way that departs so significantly from the type of established criminal law and rule of law principles that the Attorney has a tradition of vigorously defending.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:19): Thank you for the compliment, Senator Wright, but I do not for a moment share your view that this is a departure from traditional rule of law principles. This is a new offence which is being created. I will wait until you have asked whatever questions you want to ask me before speaking at length about the desirability of the provision, but this is no departure from established rule of law principles merely to create a new criminal offence, a very narrow one, subject to the ordinary defences which are provided for in the generic provisions of the Commonwealth Criminal Code, transparent on the face of the statute with no reverse of the onus of proof, no reduction in the standard of proof and beyond the generic defences a series of specific defences which in the government's view deal with legitimate reasons for travel to declared areas. There is nothing unusual about this. How you think merely because it is a newly expressed offence that that is a departure from the rule of law escapes me.

Senator WRIGHT (South Australia) (11:20): I am happy to elaborate on why the Australian Greens and certainly other legal commentators are of the view that it is a significant departure from established principles and that is the offence has been drafted in such a way as to have the same effect, without being semantic, as a reversal of the onus of proof because, while the prosecution has to prove that a person was in the declared area, that is all they have to prove initially and the defendant is then guilty of the offence unless the defendant brings evidence to demonstrate that the travel was solely for one of the listed legitimate purposes—if you want to respond to that first, Attorney-General.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:21): I am happy to, Senator Wright. This is a red –herring argument which has been raised many times. There is no reversal of the onus of proof here at all. The way the criminal law works is that an offence—let us assume we are talking about statutory offences—is defined and the prosecution bears the onus of proving every element of that offence beyond reasonable doubt. Then defences are provided for. If an accused person seeks to rely upon a defence then they have to bring forward evidence to discharge what, as you would know as a lawyer, Senator Wright, is known as 'the evidential onus', to show that there is sufficient material upon which that defence may be invoked. That is not a reversal of the onus of proof. It is merely to say that, if a criminal defendant seeks to rely upon a defence, he or she has to bring sufficient facts before the court to demonstrate the availability of that defence. That has never been regarded as a reversal of the onus of proof.

Senator JACINTA COLLINS (Victoria) (11:22): Given the way the committee is moving, I think it might be opportune for Labor to indicate its position in relation to the declared areas matter, rather than waiting until I formally move my amendments, in response to these amendments moved by Senator Wright, because we have now moved through the first of Labor's main concerns, which were those in relation to the issues that we dealt with around advocating terrorism. The second main area where we had concerns arising out of the intelligence committee's consideration was this declared area provision. The third major area in which we had concerns was that around the provisions with respect to welfare measures. I should indicate that we appreciate the government's cooperation in relation to those third measures, and we will come to those subsequently if we have time in the debate, but if we do not have sufficient time I want to indicate that we have appreciated the government's cooperation in accepting our concerns there. We would, however, like them to consider what we are now addressing in our amendments regarding declared areas. I will come to those in a moment.

As to these Greens amendments which would remove the entirety of the declared areas offence, we believe that the approach that we have circulated in revised schedule 7601 renders it a workable and useful tool for our agencies. So we obviously accept, with the intelligence committee's advice, that such a tool is warranted. Our concern about protecting the rights of the accused is what we will be dealing with in our amendment.

As we know, the bill creates a new offence in relation to people who travel to areas declared by the foreign minister. A number of members of the intelligence committee were unsatisfied with the prescription and limited range of excuses available to persons accused of travelling to or remaining in such a declared area. These committee members argued that a general exclusion should be available to those with a wholly legitimate purpose for being in a declared area. Specifically, the intelligence committee stated, at 2.387 of their report:

Committee members had different views about whether the declared area offence as currently drafted would be an effective and workable provision. Some members of the Committee questioned whether the legitimate concerns presented in evidence had been adequately addressed, particularly in relation to the evidential burden and the limited range of legitimate purposes for travel to declared areas. The Committee notes that the proposed INSLM—

the proposed security monitor—

and Parliamentary Joint Committee on Intelligence and Security reviews leading into the sunset provision will enable this to be more fully explored.

At 2.388, the committee reflected that:

Some members of the Committee believed that, given the seriousness of offences arising under this section that it is appropriate for there to be a 'wholly legitimate purposes' general provision in the legislation.

So, in accordance with these comments of the intelligence committee, Labor will be moving amendments to provide a general defence of wholly legitimate purposes for those accused of travelling to or remaining in a declared area. We do not believe that it is possible for the parliament to anticipate in advance every possible legitimate reason for a person to travel to a declared area.

Our amendment to this provision will recognise the critical role that the third arm of government, our judiciary and the criminal justice system, plays in our democracy. We think that it is entirely appropriate for the courts to determine whether a person travelling to a declared area has done so for a solely legitimate purpose. Labor believes that it is entirely appropriate and just for a judge or a jury to decide whether a person has travelled to a declared area for a sole and legitimate purpose, assuming that the police and the DPP have decided to charge that person with that offence. To expect that the parliament can, here and now, anticipate all legitimate reasons for a person to be in a declared area is a serious mistake that could potentially create a very unjust law. Our amendment, creating a general defence for a sole legitimate reason for travelling to a declared area, does not fix all of the problems with this offence, but it at least provides a more just and appropriate defence to those who may be charged, and our amendment recognises the critical role that the judiciary and our courts have in administering our criminal laws rather than trying to circumvent that role, as the government's more prescriptive approach clearly seeks to do.

Senator WRIGHT (South Australia) (11:28): I did not want to necessarily jump in ahead of the Attorney-General, if he wanted to respond, but I had some further questions for the Attorney-General, to make sense of how this would actually work in practice. As to being accused of using hypothetical examples: I think it is actually very much the role of this chamber to be saying: 'This is the law you want us to pass. How will it actually work on the ground? How will it be interpreted? What are the likely consequences, and the effects on people's lives?'

Attorney-General, you were saying that this is not a departure from traditional legal principles of criminal law. You have not acknowledged that what it does effectively do is to criminalise something that is without any intention on the part of a person. It criminalises something that would have been perfectly legitimate before the offence became law. But I am interested specifically to ask why the offence departs so significantly from the Attorney-General's Department's own guide to drafting Commonwealth offences which provides, for example, that:

The requirement for proof of fault is one of the most fundamental protections in criminal law. This reflects the premise that it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk (ie recklessness).

In this case, I am genuinely trying to understand what the fault is if you are going to criminalise what is perfectly legitimate travel. Is that the fault? Is the fault being in the declared area and staying there, or going into a declared area when in fact no malice or wrong intentions are necessary to create the offence? It is just a matter of having to prove when you come back that you had what the government considers to be a legitimate purpose. And we will go into the inadequacies in what legitimate purposes are in a minute.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:30): That is a very good question, if I may say so, and I am happy to be able to provide you with the answer. The provision does not depart from the Attorney-General's Department's recommended guidelines. It does make clear the fault elements. There are two aspects to it. The fault element in relation to travel to or remaining in a declared area is intention, so that the prosecution must prove beyond reasonable doubt that the person intended to travel to or intended to remain in the particular locality.

The fault element in relation to the person's knowledge of whether or not the locality was a declared area is recklessness. Earlier on in the debate I read to Senator Macdonald the Criminal Code's definition of 'recklessness' for the purposes of the generic fault provisions of that statute, and you were in the chamber when I did that, so I will not waste time reading them to you again. So, that is the answer to your question. A fault element in relation to travel or remaining there is intention. The fault element in relation to awareness of whether or not that particular locality is declared is recklessness.

While I am on my feet, Senator, I might point out, particularly since you have frequently invoked the Australian Human Rights Commission in support of your position, that the Australian Human Rights Commission, in its commentary on this provision, some of which I acknowledge is critical, actually acknowledged that there was no reversal of the onus of proof. The Human Rights Commission acknowledged that the position is exactly as I have explained to you: that a person seeking to invoke one of the defences has an evidential onus to bring forward the facts before the court so that the court can be possessed of the facts constituting the defence. But in relation to all of the elements that constitute the offence, there is no reversal of the onus or proof.

Senator WRIGHT (South Australia) (11:33): I did actually say, and I made it quite clear, that it is an effective reversal of the onus of proof, not a technical one. When we consider the fault element you are relying on, the fault is travel or remaining in the geographical area. That is the fault at the heart of this offence. I would say that that is actually a serious departure from established criminal law principles, in that traditionally crimes have been actions or behaviour that have an element that is inherently negative, malicious or harmful to other people. It is actually quite unprecedented through the enactment of a provision, through the writing of a new offence, to criminalise something that on its own is perfectly legitimate. Indeed, freedom of movement is an important human right. To talk about the fault element of the travelling or remaining in an area as being within the scope of ordinary criminal law is nonsensical. There is no inherent harm or wrongful behaviour in people exercising their right to travel. There has not been previously, and the Australian Greens and many others are very concerned at the precedent this is setting.

What I am interested in following up is what will happen to a person who is already in an area when it is declared. How will they find out that they are committing a criminal offence by remaining in that area, if they are not aware that it has been declared, and are at risk of criminal punishment upon their return to Australia.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:35): I am afraid that the law of evidence is by its nature a very technical area. So, Senator Wright, with respect it gets you nowhere to say, 'Well, Senator Brandis, you might be technically right about the law of evidence, but effectively this is a reversal of the onus of proof.' This is a technical area, and when you say 'Well, although you are technically right, effectively it is different,' you are coming very close to a Dennis Denuto like observation about it being 'the vibe'. The fact is that the law of evidence—and the principles by which courts determine where the onus of proof lies, and the distinction between the persuasive onus and the evidential onus—is a very technical area. Let us not try to mask our refusal to accept the technicality of the area by reverting to non-technical language.

Senator Wright, contrary to what you say—that this is unprecedented or unknown to the law—it is very common for our law to say that it is prohibited to go to a particular area. Let me give you a few examples. It is against the law of Australia to go to certain areas in South Australia that are used for the purposes of the Australian Defence Force. Indeed—although I am thinking of that particular example inspired by the presence behind me of the distinguished Senator Fawcett—in general it is against the law for a person to go to a military base or to attend upon a military base, without authority to do so. It is against the law, in many instances, for a person to go into Indigenous territories without appropriate permissions. It is, I think you will find, Senator Wright, against the law for people to go to certain areas of the Australian Antarctic Territories without permission. The idea that it is unknown to the law that there should be a prohibition on a person visiting a particular place is, with respect, quite erroneous. It is a perfectly commonplace form of prohibition and a prohibition of that kind has been extended in this particular case to areas declared by the Minister for Foreign Affairs as satisfying the statutory tests as being no-go zones for Australian travellers. This is essentially because those areas are areas where Australians have no place being, because they are areas under the control of terrorist armies. In a practical sense, that is the way this legislation is going to operate. There are exceptions and defences, as you have acknowledged, but I challenge utterly the suggestion that it is unusual for the law to prohibit a person visiting certain specified localities. That is just not right at all.

Senator WRIGHT (South Australia) (11:39): Attorney-General, I think you might have forgotten the question that I asked at the end of that, which was: what will happen to a person when they are already in an area when it is declared and how will they find out that they are at risk of criminal punishment upon return to Australia?

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:39): If a person is in an area when it is declared, they commit the offence by intentionally remaining there and they commit the offence if the recklessness element of having reckless disregard as to whether or not the area is a declared area is made out by the prosecution beyond reasonable doubt. The Department of Foreign Affairs and Trade will, in the event that an area were to be declared, take extensive steps to publicise that matter, including on the web and through social media.

Senator WRIGHT (South Australia) (11:39): How will a person demonstrate that his or her travel is solely for a listed legitimate purpose? And how will the prosecution rebut such a defence if it is raised? This requirement of 'solely' has been causing a great deal of concern among legal commentators.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:40): It would not be causing a great deal of concern among legal commentators who are familiar with testing 'sole purpose'. It might cause vexation to Professor Ben Saul—Professor Saul is an international lawyer—but it would not be causing a lot of concern to practitioners and legal commentators who understand that, in many areas of the law, courts are every day seized of determining the question of purpose in determining the question of state of mind. That includes determining whether or not a person's purposes in engaging in a particular act are a sole purpose or one of a variety of purposes. This is not hard, Senator.

Let me give you an example in a practical sense of why it is necessary to have a sole purpose test if one is to invoke one of the variety of exemptions. One of the exemptions in proposed section 119.23(g) is making a bona fide visit to a family member. I imagine, Senator Wright, that you think that it should be all right for a person who makes a bona fide visit to a family member not to be caught by this prohibition. But let us say that a person would have travelled to a declared area and, in the course of making a bona fide visit to a family member, were also to facilitate the travel to, let us say, a township in northern Iraq under the control of ISIL, were also to facilitate the travel of foreign fighters to that township or were also to provide financial or other material sustenance to ISIL. Then, unless we have a sole purpose test, the ordinary law would be that as long as it was a substantial purpose, then the defence would be available. So if the person in the hypothetical case I have given were to say: 'It may well be that I travelled to this particular township in order to assist ISIL but, as it happens, my brother lives in this township and I actually did visit him and my desire to visit my brother was a bona fide desire to make a family visit.' We cannot have what I think we both acknowledge to be a legitimate exemption used as a mask or a pretext or a ruse to conceal purposes which, I am sure you would agree with me, ought not to be legitimate. But unless we have a sole purpose test, that could happen.

Senator WRIGHT (South Australia) (11:43): I suppose a different example that has been brought to my attention would be for us to perhaps imagine an elderly couple, who have been living in Australia for a long time, who return to see family, perhaps for the last time before they die. While they are there making a bona fide visit to a family member, because they are returning to an area where they have perhaps grown up, they are invited to go to a wedding of people who are not family members but who are in another town and they travel there for that. Again, I do not want to be accused of raising hypothetical examples, because these are the very live examples and fears that people have who need to take account of this legislation. My concern is that, even if in the end you say that a court will interpret this, a court will give people the benefit of the doubt and so on, the real concern here is that this restriction will have a chilling effect. Those people will not even potentially take the risk of going or will not take up an opportunity like that, of attending a wedding of a friend in a different village, which would seem to be perfectly legitimate, perfectly harmless, perfectly reasonable and perfectly understandable

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:44): The courts are very practised, as I said a moment ago, in determining state of mind, and part of that forensic process is to determine whether a purpose is a sole purpose or one of a multiplicity of purposes.

In the example you have given, it would seem to me that, if there were a trivial, incidental event that was not the sole purpose of the travel but was engaged in while the person was travelling to a declared area for the sole purpose of, in the example you have just instanced, making a bone fide family visit, that would not defeat their reliance on the defence. We can quibble at the margins. You know the old legal maxim 'de minimis non curat lex'? Trivial, incidental examples would not defeat the operation of this principle, but the principle is important: a person must be travelling solely for that legitimate purpose. Now, if while they are there they do something entirely incidental that is not the sole purpose or even a purpose of their travel, I would not think that that would defeat them.

Senator WRIGHT (South Australia) (11:46): I will come back to an operational question now, about the way the offence would operate in practice. How would areas be declared in such a way as to be responsive to the fluidity of war and conflict? For example, would a new declaration be made each time a new Syrian city or region is embroiled in conflict, or is it envisaged that a blanket declaration would be issued?

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (11:46): That would be a judgement for the Department of Foreign Affairs and Trade to make. Obviously, because we are talking about geography here, areas will be defined by descriptions of a location. In my view, the description of the location should be as specific as possible to give people as much guidance as possible. I take your point about the mobility of modern warfare. There is, of course, a lot of immobility in warfare as well, as we have seen in more recent wars, but, in a highly mobile environment where, for example, the front changes often, obviously that will require a judgement to be made on a case-by-case basis as to whether or not a particular locality should be added to the list.

I think we are a little bit jumping at shadows, Senator Wright. I said at the initial press conference with the Prime Minister on 5 August that I expected a provision like this would be used very sparingly. I remain of that view. It is, as you rightly say, an unusual provision. A decision, not by me but by the foreign affairs minister, to make such a declaration would be made on the best advice of the Department of Foreign Affairs and Trade and perhaps, I dare say, the Department of Defence and the description of the area would be a geographical description.

The CHAIRMAN: Senator Wright, before I give you the call, it was with the indulgence of the chamber that we moved away from the running order and I wonder if you might give an indication of what time you think we will bring this question to a close.

Senator WRIGHT (South Australia) (11:48): Thank you, Mr Chairman. That is a fair question and I was about to indicate that. I thought I would speak briefly to the consequential amendments so that I will not need to speak about those again, and then I will ask that this amendment, regarding the removal of the offence, be put to the chamber for decision. Then I imagine that Senator Collins will move her further amendment.

The CHAIRMAN: Yes, I then want to go back to that amendment.

Senator WRIGHT: Given that we have now, in a sense, moved in the debate to the other aspects of the amendments that the Greens will be moving, I will not need to speak to those later. I totally understand your concerns about the time. I will speak briefly about those amendments and then I will have nothing more to say on this.

I indicate that the consequential amendments that the Greens will be moving, if the first Greens' amendment is not successful, will add an element of intent to the offence—that is item 1 on sheet 7598—and to expand the definition or broaden the range of legitimate behaviour defences for this offence by expanding the range of legitimate purposes, to allow for the making of a bona fide visit to a friend or personal or business associate, to provide legal advice, or to perform a bona fide business, teaching or research obligation such as archaeology or some kind of research at an educational or teaching institution.

Finally, the Greens' amendment to deal with legitimate purposes in the way a court may interpret those is to create a provision whereby the court would ultimately have discretion—any other purpose that the court determines is legitimate in all the circumstances—which would, in the Greens' view, appropriately give the decision making about what is a serious criminal offence to the judiciary.

Certainly, the Attorney-General has reassured us that this provision would not be used very often, he envisages, and that we really need to trust that this is a sensible provision that will not be misused. Unfortunately, what we know is that, once there is a provision on the books—once legislation is there—governments come and go, attorneys-general and ministers for foreign affairs come and go, and the provision is there, able to be relied upon. Some kind of suggestion that we should just be reassured that it will not be abused is not actually satisfactory for many people because, if it is there, it can be used. That is why, ultimately, the Greens' third amendment suggests that we should allow the judiciary to be able to respond to circumstances which may not be envisaged in the other legitimate purposes that have been set out.

The CHAIRMAN: The question is that sections 119.2 and 119.3 in item 110 of schedule 1 stand as printed.

The CHAIRMAN (11:59): Senator Wright, given that Greens amendment (17) was contingent on the successful passage of that amendment in reverse, for you, can you indicate that you do not intend to move that amendment?

Senator WRIGHT (South Australia) (11:59): Yes; if that is contingent, certainly.

Senator WONG (South Australia—Leader of the Opposition in the Senate) (11:59): I and on behalf of Senator Collins move opposition amendment (1) on sheet 7601 revised:

(1) Schedule 1, item 110, page 82 (line 18) to page 83 (line 8), omit subsection 119.2(3), substitute:

Exception—entering or remaining for a legitimate purpose

I want to make some brief comments, not only on that amendment but also because I was away yesterday, on the broader issue of the bill.

As a general proposition, the Labor Party has taken a strongly principled and responsible approach to national security legislation. We on this side of the chamber do understand it is a fundamental responsibility of government to keep citizens safe. That is why we support appropriate resources and powers being given to our national security agencies to keep Australians safe from threats at home and abroad. At the same time, Labor recognises that such powers must be accompanied by the appropriate safeguards, by oversight of the security agencies. This is to ensure that the rights and liberties of citizens are not infringed.

Senator Collins has said our bipartisan assistance to the government on matters of national security is never a blank cheque. That is why the opposition sought significant changes to this bill. Labor worked tenaciously, as Senator Collins has outlined, to improve this bill. We sought to ensure that it assists our agencies in addressing risks posed by foreign fighters and we have insisted on necessary safeguards for fundamental democratic freedoms.

The government's original bill went to the Parliamentary Joint Committee on Intelligence and Security, where members and senators from the Labor Party, and our parliamentary colleagues, closely scrutinised the bill and tested the case for each new measure.

I would make this point that the experience of Labor senators and members who were involved in the scrutiny of this bill is considerable. Three of the four members of Labor's federal parliamentary leadership team—Ms Plibersek, Senator Conroy and I—are members of this committee. We are joined by Mr Anthony Byrne who has served on this committee and its predecessor for the majority of the last decade, including three years as chair. The committee membership also includes Senator John Faulkner—and anyone who heard Senator Faulkner's contribution to the second reading debate on this bill yesterday would be left in no doubt about the experience, knowledge and insights he brings to this area. I do take this opportunity to particularly commend Senator Faulkner for his work not only on this inquiry and in the debate on this bill but also on his recent paper, 'Surveillance, intelligence and accountability'.

As a number of contributors to the debate have identified, the report of the inquiry of the PJCIS into this bill made 36 substantive recommendations. Those have resulted in substantial amendments being proposed by the government to this bill. I want to emphasise the impact of the committee's report and the resulting amendments that have been proposed as compared with the original bill. I would also like to point out that when the Attorney-General released his original response to the recommendations of the committee, stating that all of the recommendations had been accepted, closer examination found this was not the case, in some measures. For example, the committee explicitly recommend it in recommendation 14 that its functions be extended to encompass the counter-terrorism activities of the AFP. The government response, while saying the recommendation was accepted, did not rule this out. I am pleased that through the work particularly of the shadow Attorney-General, Mr Mark Dreyfus QC, amendments have now been made to give effect of this recommendation in full.

One of the areas that was the subject of concern in many submissions to the committee's inquiry and consumed a considerable amount of time in the public hearings was the proposed sunset clauses. The original bill proposed to extend the operation of the control-order regime for a further 10 years, to December 2025, preventative-detention-order regime for a further 10 years to the same month, December 2025, and to stop search-and-seizure powers relating to terrorism offences the same period. The questioning-and-detention-warranting regime under the ASIO Act was proposed to be extended for a further 10 years, to 22 July 2026.

Labor believed these provisions were unacceptable and made that clear. We are pleased that the committee agreed and unanimously recommended that all of these clauses proposed for sunset will do so—that is, will sunset during the life of the next parliament. That is a much more limited period prior to the sunset provisions coming into effect. We are also pleased that the government and the Attorney-General in particular has agreed in substance to this recommendation, with amendments proposing set dates for the sunset to take place. Further, all sunset clauses are accompanied by mandated review by the Parliamentary Joint Committee on Intelligence and Security and the Independent National Security Legislation Monitor.

We are pleased that we were able to put forward, successfully, that these sunset provisions are accompanied by mandatory reviews ahead of their expiry. As was noted in a number of submissions to the committee and in evidence, the whole purpose of sunsetting provisions is undermined if appropriate reviews are not conducted. In relation to the Independent National Security Legislation Monitor I note that earlier this year the government claimed this oversight position just added red tape and sought to repeal the legislation establishing the position. I welcome the government's change of heart and I would ask—if it has not already been indicated—if the Attorney-General has an indication as to the time frame for the filling of that position, which has been vacant since April.

Labor has also improved human-rights protections in the bill's provision in relation to the use of overseas evidence in terrorism prosecution in Australian courts. We sought amendments to clarify that torture can never be accepted under our law and are pleased that the joint committee recommendations dealt with this and other matters in relation to foreign evidence.

I now wish to turn to the defences in relation to the 'declared areas offence', which is the subject of the amendment that I have now moved on behalf the opposition. Labor recognises the policy reason behind the declared areas offence. However, we believe we need to ensure that Australians are not being prosecuted for these offences when they are in declared areas for an entirely legitimate purpose. What is intended by this offence is to capture nefarious purposes, which have been the subject of discussion not only in this chamber but also in the context of the committee inquiry.

You cannot identify in legislation every possible legitimate or non-nefarious reason that a person might have for travelling to a particular place in the world. Accordingly, it is our view that this legislation needs to include a general defence or exception for cases where a person enters or remains in a declared area for a legitimate purpose.

The parliamentary joint committee noted:

… the Committee accepts that there are likely to be some legitimate reasons for travel to an area that are not covered in the proposed grounds of defence listed in subclause 119.2(3) of the Bill. It may be inconsistent, for example, for persons to be allowed to travel to a declared area for a social visit to a family member, while prohibiting travel to a declared area to visit a close friend who is dying. The Committee supports the inclusion in the Bill of a provision to allow additional legitimate purposes to be prescribed by regulation if needed. The Committee encourages the Attorney-General’s Department to review the evidence provided by participants to this inquiry to identify legitimate purposes that could be added to the regulations in this manner, without reducing the deterrent effect of the offence.

Further, the committee stated in its report:

Committee members had different views about whether the declared area offence as currently drafted would be an effective and workable provision. Some members of the Committee questioned whether the legitimate concerns presented in evidence had been adequately addressed, particularly in relation to the evidential burden and the limited range—

the very limited range—

of legitimate purposes for travel to declared areas.

The committee went on to state:

Some members of the Committee believed that, given the seriousness of offences arising under this section that it is appropriate for there to be a ‘wholly legitimate purposes’ general provision in the legislation.

This is the subject of the amendment I have now moved on behalf of the opposition. I believe—Labor believes—that courts should have the discretion to determine the appropriateness of a person's defence that they were in a declared area for a wholly legitimate purpose. That is not a special job we are asking the courts to do. Judges and courts are appropriately placed to hear evidence and make decisions—and make such decisions responsibly. It is not a sensible way to proceed to have parliament seek to set out the factual circumstance of every defence to this offence. It is entirely consistent with a responsible approach to this offence—and a responsible approach to legislating—to enable the courts to have the discretion to consider factual circumstances which this parliament may not be able to contemplate.

So Labor has sought to remedy the short-comings of the defences listed by proposing amendments to widen the scope. In this amendment I wish to highlight the inclusion of some examples in our amendment, which include the provision of humanitarian aid—

Senator Brandis: It's already in the bill.

Senator WONG: The Attorney-General correctly indicates that that is in the original legislation. Other examples include working in a professional capacity as a journalist, performing an official duty of the United Nations or an agency of the United Nations, or making a bona fide visit to a family member.

This goes to a broader question—I appreciate that the Attorney-General's advice is different—which is about the roles of the legislature and the courts. Are we seriously saying that we do not trust the courts to assess the particular factual circumstance that is presented to it, and make an appropriate judgement as to whether those facts ground a legitimate basis for the defence that parliament has prescribed? I think we should give the courts that opportunity. I commend the amendment to the chamber.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (12:11): Let me make a couple of preliminary observations and then deal with the Labor Party amendment. It is not correct to say that the government's acceptance of all 37 recommendations from the Parliamentary Joint Committee on Intelligence and Security was misleading. We accepted all 37 recommendations.

In relation to some of the recommendations, there was a variety of ways in which they could be given effect to, because only in a minority of cases—I think it was in some dozen cases—did the PJCIS recommend legislative amendment. Most of the changes that were recommended were administrative changes in the way in which, for example, the PJCIS works and interacts with the government.

The example that Senator Wong gave, of the recommendation that the counter-terrorism function of the Australian Federal Police should be transferred from the legislative oversight of the Joint Parliamentary Law Enforcement Committee to the Joint Parliamentary Intelligence and Security Committee, was accepted by the government. The manner in which that was given effect to depended upon soliciting the views of the Parliamentary Joint Committee on Law Enforcement, which is what I did. I spoke to the chairman of that committee, Mr Bert van Manen MP, to solicit his views about the transfer of that important responsibility from his committee to another committee. Mr van Manen was good enough to say to me that he, on behalf of the committee, was content for that to happen.

Senator Wong has come into the chamber—evidently not fully briefed on this issue; there were a number of errors in her contribution—and has claimed that somehow the government was being misleading in claiming that it had accepted a recommendation without having done so, merely because I paid the committee from whose jurisdiction a particular function was to be transferred the courtesy of inquiring of their views before giving effect to that recommendation. That is a little mendacious, I must say.

This has not been a particularly partisan debate, and it disappointed me to hear Senator Wong constantly say that the Labor Party has done this or that. The fact is that the improvements to this legislation, which the government has accepted wholly, came from a committee of the parliament, the Parliamentary Joint Committee on Intelligence and Security—on which I had the honour to serve for some years when in opposition—which always acts in a collaborative and bipartisan way. I think that if the Australian public could see its deliberations it would be proud of the way that committee acts. It is unlike the way in which virtually every other committee of this parliament acts.

The recommendations were the product of the joint effort, the joint careful thought, of Labor Party and Liberal Party and National Party members of that committee, working collaboratively as parliamentarians, working in a bipartisan fashion as patriots. It was not the work of one side of politics; it was the work of all sides of politics. So let me correct the regrettably partisan tone that Senator Wong just injected into the debate.

Dealing with the Labor Party's amendment that is before the chair, the government opposes the amendment. Let me explain why. I might point out that this is the second iteration of this amendment that we have seen today, but, nevertheless, ultimately the Labor Party, through its own internal councils and processes, has arrived at a final position after quite a lot of uncertainty during the course of the debate. The government opposes the Labor amendment for several reasons. Let me put them in the context of the purpose of this provision. The purpose of this provision, quite candidly and openly and unashamedly, is to say that there are some areas of the world—under the control of terrorist armies which are at war against their own populations, as they are in northern Iraq, which are engaged in genocide and religious persecution and subversion of legitimate governments—to which Australians should not travel. The government makes absolutely no apology for saying that there ought to be a law enabling in certain circumstances the Australian government, through the Minister for Foreign Affairs and on the advice of her department, to say that, because of the particular circumstances of a particular locality or region of the world, this is a place to which Australians should not be permitted to go, just as there are many other places to which Australians are not permitted to go by existing laws. I gave some examples to Senator Wright before. Nevertheless, the government accepts that there may be special circumstances which necessitate travel to such an area.

In the bill we set out seven particular cases where, if a person can lead evidence before a court to show that they were there solely for that purpose, then that constitutes a defence to the charge of being in a declared area. Let me take the one that I was discussing with Senator Wright before—making a bone fide visit to a family member. That, I suspect, is the exemption which would be most often availed of. We accept that if, for example, a relative of an Australian happens to live in an area somewhere in Syria or northern Iraq which may have become a centre of terrorist operations, but, nevertheless, let us say that the person had a sick relative for whom they felt a need to travel to care for, to visit that area should not be caught within this offence. There are other examples given as well.

The Labor Party seems to accept the spirit of this provision, but it wants to change the way in which it works by replacing seven specific grounds, which constitute defences to the offence of visiting a declared area, with a generic discretion which the courts would exercise, saying, 'If you travel for a reasonable purpose, then that is a defence.' There are three reasons in particular as to why that is a very bad idea. The first reason is that it is appalling statutory drafting. We are dealing here with a crime, and in particular, for the purposes of this discussion, with the defences available to a person who is charged with a crime. Senator Wright raised the issue of the importance of the rule of law before. It is, as Senator Wright well knows, one of the fundamental tenets of the rule of law that, if a person is to be exposed to a criminal liability, then the nature and extent of that criminal liability should be known as certainly as can be known and expressed as certainly as it can be expressed in the statute. To say that a person is guilty of a crime and then draft a defence that gives no guidance whatsoever as to whether or not that defence will be available to the person is a fundamental violation of that principle of the rule of law—that the grounds of criminal liability have to be expressed with as much specificity as possible. How could anyone know whether or not they are going to be in breach of the criminal law merely because there is a generic defence that says, 'If a court decides you had reasonable grounds to be there', and gives no guidance whatever as to what the reasonable grounds might be? That is all they have to go by. So, applying your own principle, Senator Wright, to which I subscribe of course, this is a very, very, very bad piece of legislative drafting and it is a shocking example, in particular in a criminal statute, of creating a liability of uncertain dimension.

The second reason the government opposes this amendment is that it actually removes the sole purpose test. Senator Collins, in her contribution before, perhaps was unaware of this, because Senator Collins did say that it was important that a person should have the defence if it could be demonstrated that they travelled to a declared area solely for one of the legitimate purposes, though she said it would need to be solely for the generic purpose, not for one of the specified purposes. Nevertheless, she did say in her contribution that the sole purpose test should apply. But, if you look at the Labor Party's amendment, the sole purpose test is gone. If the sole purpose test is gone, then the ordinary provisions of the Criminal Code apply and, as long as the purpose is one of a multiplicity of purposes, that is enough. So to give the example I gave a little earlier: if a person were to visit a declared area and one of their purposes was to make a bona fide family visit and another one of their purposes was to engage in the facilitation of terrorism, then they would be able to avail themselves of that defence. This does not work unless the sole purpose test remains and the Labor Party's amendment would remove the sole purpose test.

Lastly, the other thing that the Labor Party's amendment would remove is paragraph (h) of proposed subsection (3), which gives the minister the power to proscribe by regulation another purpose. So there is flexibility in this statute through a regulation-making power conferred on the minister to specify other purposes. So let us say, for example, that it became apparent that, in listing seven specified purposes, the government had got it wrong, that it had overlooked something that ought to be a legitimate purpose. That could be corrected by a legislative instrument under the regulation-making power in subparagraph (3)(h), but the Labor Party amendment would remove that as well.

So the Labor Party amendment fails the test of specificity—it is vague when it should be precise; it fails the test of purpose, because it abandons the sole purpose test, which is central to the capacity of this provision to operate; and it abandons the regulation-making power, so it fails the test of flexibility as well. For all of those reasons, the government opposes the Labor Party's amendment, and it looks to the good sense of the crossbenchers, excepting the Greens, of course, to do so as well.

Lastly, let me say this: this was not one of the recommendations of the Joint Parliamentary Committee on Intelligence and Security. The Joint Parliamentary Committee on Intelligence and Security supported the provision that the government seeks to enact. That was the bipartisan view of Senator Wong and Senator Faulkner and Senator Conroy and Ms Tanya Plibersek and Mr Anthony Byrne from the Labor Party. They actually endorsed the government's position. This is one respect in which the Labor Party, having changed its position here, now seeks to walk away from the bipartisan report of the Joint Parliamentary Committee on Intelligence and Security. If this provision were to be passed for the various reasons I have expressed, it would defeat the entire purpose of an important reform to the criminal law, which the PJCIS has unanimously, in a bipartisan report, endorsed.

Senator DAY (South Australia) (12:26): I have wrestled with this bill, and the discomfort I have felt has been exacerbated by the haste with which this debate has been forced to a conclusion. I have followed and appreciated the contributions of all, particularly my colleague Senator Leyonhjelm, who spoke eloquently in a 'shining' contribution to the debate yesterday. I appreciate the briefings from government and meetings with the Attorney-General on this bill, and I have put to him some of the arguments I am putting forward now—and they are serious.

I recall an old Peanuts cartoon, where Charlie Brown shoots an arrow into a fence and then proceeds to paint circles around the arrow to show that he had hit the target. I am concerned that the target of this legislation is already known in the form of those people under surveillance who may have come back from the ISIS conflict already. That target may well be justified but I am very concerned about laws drafted to target specific individuals. I am also concerned that censoring and incarcerating people who are preaching hatred may not suppress but, in fact, fan the fire of fanaticism. Putting radical preachers, activists and would-be terrorists in prison gives them a captive audience, so to speak. Radical preaching that promotes bombings and beheadings and other gross acts of violence against innocent Australian citizens—men, women, children, the elderly—is utterly abhorrent and contrary to not only Australian values but Australian citizenship and eligibility for residency.

I trust that my colleagues in this place will be as watchful and vigilant in these matters as those law enforcement officials who protect us to ensure recently enacted powers and the powers proposed in this bill are not exceeded. Having stated those reservations and given strong cautions to those who might use these laws in ham-fisted or wrongful ways, I say that Family First will be supporting this bill.

Senator WRIGHT (South Australia) (12:28): In the two minutes remaining for debate on this bill, I want to say that this is exactly why—I welcome Senator Day's contribution; he has not spoken before in the committee stage—it is a farce to have an agreement to push this significant counterterrorism law through this parliament by 12.30. There are still important, significant, unexplained and unexplored provisions like stopping welfare, suspension of travel documents, and cancellation and suspension of visas that have not even been touched on in the debate in this chamber today.

I do not think anyone can suggest that there has been any filibustering going on with this. Legitimate concerns and queries have been raised. Not many members of the Senate even had an opportunity to engage in the debate on this. Legitimate questions have been put. Often clear answers have not been given, and those answers have had to be explored. And here we are with the gagging of the debate, and the amendments from various parties and the opposition and the government will be put through as a job lot without any ability to talk to them, to explain them, to understand them. And this is going to be the national security law that Australia will be saddled with after this finishes.

The CHAIRMAN: Order! The time allocated for consideration of this bill has expired. The question is that opposition amendment (1) on sheet 7601 revised be agreed to.

The CHAIRMAN (12:37): Senators, I now intend to deal with the rest of the outstanding amendments in this way: I will first deal with government amendments and then I will deal with Greens amendments. The government amendments will be put in two questions, as one question is opposing a schedule. And then we will deal with all of the amendments. The first question to deal with the remaining government amendments is: that part 2 of schedule 2 stand as printed.

Question negatived.

The CHAIRMAN: The question now is that the remaining government amendments on sheet ZA358 be agreed to.

Question agreed to.

The CHAIRMAN: That concludes the outstanding government amendments. We will now move to Australian Greens amendments. They will also be put in two questions. The first question is that item 133 of schedule 1 and schedule 2, 5 and 6 stand as printed.

Question agreed to.

The CHAIRMAN: The question to deal with the remainder of the Greens amendments is that amendments numbers (1) to (3) and (20) to (24) on sheet 7594, and amendments (1) to (3) on sheet 7598, and amendments (1) to (8) on sheet 7599 be agreed to.

The CHAIRMAN ( 12:44):That question has dealt with all outstanding amendments. The question now is that the bill, as amended, be agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.

Senator BRANDIS (Queensland—Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (15:40): I present the explanatory memoranda related to the bills and move:

That these bills be now read a second time.

I indicate that I have today referred the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 17 November 2014. I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speeches read as follows—

COUNTER TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2014

The Bill contains a package of amendments to the Intelligence Services Act 2001 (IS Act) and the Criminal Code 1995 (Code).

The amendments address three key areas:

facilitating the Australian Secret Intelligence Service (ASIS) supporting and cooperating with the Australian Defence Force (ADF) on military operations;

enhancing the arrangements for the provision of emergency Ministerial authorisations to IS Act agencies to undertake activities in the performance of their statutory functions; and

enhancing the control order regime to allow the Australian Federal Police (AFP) to seek control orders in relation to a broader range of individuals of security concern and to streamline the application process.

The Bill will also implement a final recommendation of the Parliamentary Joint Committee on Intelligence and Security in relation to the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

These proposed amendments are being brought forward in a separate Bill to the two major tranches of national security legislation the Government has introduced in the Spring sittings – the National Security Legislation Amendment Bill (No 1) (which passed the Parliament on 1 October and received the Royal Assent on 2 October); and the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill (introduced on 24 September and is presently before the Parliament).

The measures in the Bill have been included as a result of instances of operational need identified by relevant agencies subsequent to the introduction of the previous two tranches of legislation. In the case of the proposed IS Act amendments, the need for amendment is urgent, as a result of recent developments in the security environment, primarily due to the Government's decision to authorise the ADF to undertake operations against the Islamic State (IS) terrorist organisation in Iraq.

The Government has brought forward these measures in a separate Bill, to ensure that the Parliamentary Joint Committee on Intelligence and Security (PJCIS) has an opportunity to conduct a review of them, and report to the Parliament on its findings.

I have today referred the Bill to the PJCIS for inquiry and report by 17 November, so that its analysis can inform the Parliamentary debate of the Bill in the final fortnight of the Spring sittings.

Intelligence Services Act amendments

There is an urgent need to make amendments to the ISA to ensure that intelligence agencies can undertake relevant activities in support of the ADF's operations in Iraq against the Islamic State (IS) terrorist organisation.

These activities are anticipated to include the collection of intelligence in relation to Australian persons who are known or suspected participants in the hostilities, and particularly those who are known or suspected of fighting with or alongside the IS terrorist organisation. Such intelligence is likely to prove instrumental to these operations, including in protecting ADF personnel, members of other defence forces, and civilians from death or serious harm as a result of terrorist or other hostile acts committed in the course of the conflict.

The proposed amendments are directed to two key areas.

ASIS activities in support of, and in cooperation with, the ADF

First, the primary purpose of the amendments is to better facilitate ASIS providing timely assistance to the ADF in support of military operations, and its cooperation with the ADF on intelligence matters. The proposed amendments make explicit that such support and cooperation is a function of ASIS, consistent with explicit functions to this effect conferred upon the other two ISA agencies, the Australian Signals Directorate (ASD) and the Australian Geospatial-Intelligence Organisation (AGO).

These measures also make a small number of amendments to facilitate the timely performance by ASIS of this function. These concern the provision of Ministerial authorisation by the Minister responsible for ASIS in relation to a class of Australian persons, and enabling the Attorney-General as the Minister responsible for ASIO to provide agreement to an authorisation in respect of individuals falling within a specified class of Australian persons. All of the existing safeguards in the ISA will apply to the performance of the new function. These include the statutory thresholds for the granting of authorisations, Ministerial reporting requirements, and the independent oversight of the Inspector-General of Intelligence and Security (IGIS).

Emergency Ministerial authorisations

Secondly, the proposed amendments also remedy practical limitations identified in the arrangements for emergency ministerial authorisations which apply to ASIS, ASD and AGO.

The amendments make provision for the contingency that the relevant Ministers may be temporarily uncontactable when there is an urgent, previously unforeseen need to collect vital intelligence. Presently, there is no legal basis on which agencies can undertake activities in these circumstances, meaning that critical intelligence collection opportunities may be missed. The amendments will address this, by enabling an agency head to grant a limited emergency authorisation, subject to rigorous and extensive safeguards and oversight mechanisms.

These authorisations are strictly limited to 48 hours maximum and cannot be renewed. Additional issuing criteria apply to authorisations by agency heads, including express consideration of whether the relevant Minister would have been likely to grant the authorisation, on the basis of the existing statutory criteria. Further, to ensure it is only available in an extreme emergency, the agency head must also be satisfied that, if the activity was not authorised, security would be seriously prejudiced or there would be a serious risk to a person's safety. The Minister must be notified as soon as practicable within 48 hours, and is under a positive obligation to make a decision about whether it should continue within the 48 hour maximum, or be cancelled or replaced with a Ministerial authorisation. The IGIS must also be notified as soon as practicable within three days.

The amendments also provide for contingency arrangements in the event that the Attorney-General is not readily available or contactable to provide his or her agreement to the making of an emergency Ministerial authorisation, where such agreement is required because the authorisation concerns the undertaking of activities in relation to an Australian person who is, or who is likely to be, engaged in activities that are, or are likely to be, a threat to security.

The amendments address an unintended limitation in the ability of Ministers to issue emergency authorisations. Presently, no provision is made for Ministers to issue these authorisations orally, with a written record to be made of that decision. This is incompatible with the circumstances of urgency in which emergency authorisations are designed to operate, and with the longstanding approach to other forms of emergency authorisation – including search warrants, telecommunications interception warrants, surveillance devices warrants and, more recently, the authorisation by the Attorney-General of special intelligence operations by the Australian Security Intelligence Organisation. The proposed amendments bring the emergency Ministerial authorisation process in the ISA into line with this approach.

Criminal Code amendments

The amendments to the Criminal Code will further strengthen the control order regime and enhance the capacity of law enforcement agencies to protect the public from terrorist acts. The amendments will allow the AFP to request, and an issuing court to make, a control order in relation to those who "enable" and those who "recruit". Although such individuals may not directly participate in terrorist acts, their conduct in supporting and facilitating terrorism through the provision of funds and equipment, or by recruiting vulnerable young people to champion their cause – and even to die for it – is instrumental to carrying out terrorist conduct. The expansion of the control order regime to cover such individuals will help disrupt terrorism at an earlier stage, keeping Australia and Australians safe and secure.

The amendments to the control order regime will also streamline the application process by reducing the volume of material that must be provided to the Attorney General when seeking consent to request an interim control order, and extend the time for obtaining the Attorney General's consent when making an urgent request to an issuing court without first obtaining the Attorney General's consent.

Finally, the implementation of the Parliamentary Joint Committee on Intelligence and Security's recommendation will require the Attorney General to advise the Committee before amending a regulation that lists a terrorist organisation by adding an alias or removing a former name and to allow the Committee to review any proposed change during the disallowable period.

Concluding remarks

The measures in the Bill will ensure that our intelligence and law enforcement agencies have the necessary capability to operate effectively in the contemporary security environment. They will be of particular utility in circumstances of urgency presented by the activities of Australians who participate in foreign conflicts, including fighting with, or otherwise supporting the violent activities of, terrorist organisations.

CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2014

Introduction

The Civil Law and Justice Legislation Amendment Bill 2014 is an omnibus bill which will amend sections of the Bankruptcy Act 1966, the Copyright Act 1968, the Court Security Act 2013, the Evidence Act 1995, the Family Law Act 1975, the International Arbitration Act 1974, andthe Protection of Movable Cultural Heritage Act 1986. The bill will make minor and technical amendments to provide more clarity to the legislation, correct legislative oversights and amend obsolete provisions. The combined effect of these amendments will improve the efficiency and operation of the justice system administered by the Attorney-General's portfolio.

Body

The government is determined to reduce regulation and make Commonwealth laws clear and accessible. Some of the provisions in this bill go directly towards implementing the government's deregulation agenda. For example, the amendments to the Copyright Act will reduce the impact of the legal deposit scheme on publishers. At present, publishers of certain literary, dramatic, musical or artistic works must deliver copies of their works in print format. The amendments will provide for publishers to submit their works electronically, which will reduce the time and cost burden on the industry.

The government aims to make all Commonwealth legislation coherent, readable and accessible to the widest possible audience. To this end, the Court Security Act will be amended to clarify the process by which court security orders can be varied and revoked. Minimising confusion creates a fairer and more accessible justice system. The Court Security Act amendments will also address court management issues by extending the authority to hold and dispose of unclaimed dangerous items.

Amendments to the Evidence Act will increase consistency with the Uniform Evidence Bill for greater cross-jurisdictional compliance.

The bill will also amend the International Arbitration Act to clarify its application, providing certainty for private parties who entered into arbitration agreements before the International Arbitration Act was last amended in 2010.

Minor, technical amendments contained in the bill will improve the operation of the Family Law Act by correcting errors and ensuring the use of consistent language. The bill will also amend the Family Law Act to explicitly permit the provision of certain information relating to family law proceedings to child welfare authorities. This amendment will ensure that child welfare authorities have access to any relevant material to enable them to better protect children.

The amendments to the Bankruptcy Act will ensure that assistance received under the National Disability Insurance Scheme is not distributed to a bankrupt's creditors. The amendments also modernise the drafting of offences under the Act and ensure that they have kept up with modern technology. Additionally the amendments will enhance the Australian Financial Security Authority's capacity to act as a special trustee for other government agencies. In its special trustee role the Australian Financial Security Authority seizes and sells property pursuant to a Court order in relation to a debt owed to the Commonwealth or a Commonwealth agency.

The bill will add currency and ease of application to the legal system as it stands today. Significantly, the bill will facilitate the removal of obsolete and redundant clauses. For example, the bill will amend the Family Law Act to remove obsolete requirements for annual publication of certain information, as well as to repeal an obsolete definition. And the bill will amend the Evidence Act to remove obsolete provisions and references to the operation of the Evidence Act in relation to the Australian Capital Territory.

The bill reflects the government's commitment to better equip Australia to meet the needs of industry and consumers in the digital age. For example, the amendments to the Copyright Act will allow the National Library of Australia to collect not only our print history but also our digital history.

Conclusion

In conclusion, the intention of this bill is to make minor and technical amendments to a number of Acts in order to increase access to justice for all Australians by removing ambiguity in legislation and streamlining legal processes. The bill will increase the currency, clarity and consistency of legislation administered by the Attorney-General's portfolio. Significantly, the amendments contained within the bill will improve the justice system by making it easier for individuals to understand and comply with the law.

Debate adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day .