2nd Reading Speech

22 November 2017

The Hon. ADAM SEARLE ( 16:35 ): I lead for the Opposition in debate on the Terrorism (High Risk Offenders) Bill 2017. The Opposition does not oppose the bill. Our view of the bill is contrary to the Government’s rhetoric. The Attorney General has admitted to other audiences outside of the Parliament that most terrorist offenders will already be subject to the currently existing post-sentence detention and supervision scheme. To put it simply, the current scheme applies to high-risk violent offenders. Given that by definition terrorists use or threaten violence, it is obvious why they would be covered by the current regime. To most people it is hard to pursue an argument that terrorist offenders are not associated with violence. We concede that there are gaps in the present structure but they are not as wide or important as government rhetoric would suggest.

It is perhaps for that reason that when the Government was talking up the legislation the Commissioner for Corrective Services, Peter Severin, could not identify anyone to whom it might apply. Bearing in mind it can apply only to people imprisoned previously, if there were any, one would expect the Commissioner for Corrective Services would know. Interestingly, security authorities would probably prefer to rely on the existing regime, which has a maximum detention and supervision period of five years, rather than the present bill in which the maximum period is three years.

The primary object of the bill is to provide the Supreme Court with the power to order the detention or supervision of certain offenders after they have served their sentence of imprisonment, provided the court is satisfied the offender poses an unacceptable risk of committing serious terrorism offences if not detained or supervised. This is presented as an extension of the already existing scheme that was introduced by the previous Labor Government for high-risk sex offenders, and extended in 2013 by the current government to high-risk violent offenders in legislation which the Labor Opposition did not oppose. I note that further amendments were made recently following a statutory review of the legislation.

The bill is modelled upon the Crimes (High Risk Offenders) Act which is the legislation governing the current regime. Many of the provisions of this bill are identical to that Act. One option might have been to amend that Act rather than establish a completely new piece of legislation. Perhaps it is cynical of me to note that it is probably a bigger media story if the Government can say it is introducing a whole new piece of legislation to deal with this issue rather than amending and building on a previously developed foundation. Part 2 of the bill deals with the extended supervision orders, and part 3 with continuing detention orders.

Applications are made to the Supreme Court. The test for the court is that it is to be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if the order sought is not made. There are provisions for interim supervision orders and interim detention orders. There are also provisions for emergency detention orders. As with the Crimes (High Risk Offenders) Act, there are provisions that proceedings are in accordance with the law relating to civil proceedings and provisions concerning victims and victim impact statements, appeals to the Court of Appeal and a prohibition on costs orders against offenders.

Likewise, conditions are set out that can be part of an extended supervision order [ESO], provisions for information to be sought by the Attorney General, and warnings to be given to the offender about the Act.

The most complex components of the bill are contained in part 1, division 1.3, entitled “Key Concepts”. This is a series of definitional provisions setting out who is caught by the regime of the Act. An eligible offender is someone aged 18 years or older who is serving or being supervised or detained after serving imprisonment for a New South Wales indictable offence. This means the bill does not apply in respect of Commonwealth laws. This also, self-evidently, excludes juveniles. The court can make orders against eligible offenders who are convicted New South Wales terrorist offenders, or a convicted New South Wales underlying terrorism offender, or a convicted New South Wales terrorism activity offender. The first of these broadly relates to people imprisoned under section 310J of the Crimes Act, being a member of a terrorist organisation. There are not many people in that category. An email dated 21 November that was sent to the Parliamentary Research Service from the NSW Bureau of Crime Statistics and Research [BOCSAR] states:

According to the latest publically available NSW Criminal Courts data from BOCSAR ending June 2017, there have been no finalised charges under section 310J of the NSW Crimes Act 1900 since the section’s commencement.

A convicted New South Wales underlying terrorism offender is someone serving a sentence or being supervised or detained for a New South Wales indictable offence which is serious and which occurred in a terrorism context. Proposed section 9 (2) provides a definition of “serious”, and proposed section 9 (3) deals with the terrorism context. A convicted New South Wales terrorism activity offender is someone serving imprisonment or being supervised or detained for an indictable offence and the offender has been subject to a control order, has been a member of a terrorist organisation, has made statements or engaged in conduct advocating support for engaging in any terrorist act, or is associated or otherwise affiliated with other persons or with organisations advocating support for engaging in any terrorist acts.

Proposed section 11 provides a list of indicia to assist a court in determining whether someone is a convicted New South Wales underlying terrorism offender. Some provisions in this bill are different from the Crimes (High Risk Offenders) legislation. Proposed section 52 provides that a court may allow a prescribed terrorism intelligence authority to make submissions to the court if the court thinks it would assist its determination. Proposed section 60 deals with the use of offenders’ information involving terrorism intelligence. An application can be made that particular information be dealt with as terrorism intelligence. The court must take steps to maintain the confidentiality of such information, including receiving and hearing argument about it in private. The court must allow a form of access to the intelligence information. The most restrictive provision is clause 60 (4) (e), which allows the party’s legal representative to view but not have a copy of the intelligence, but denies the party any form of access to that intelligence. The court has given explicit power to make orders to prohibit or restrict access to, or the disclosure or publication of, terrorism intelligence.

One interesting variance between this bill and the existing continuing detention order [CDO] and ESO regime relates to the maximum length of detention and supervision orders. Proposed section 26 (6) provides a maximum period for an ESO of three years. Proposed section 40 (1) provides the maximum term for a CDO of three years. That is in clear contrast to the current regime. Section 10 of the Crimes (High Risk Offenders) Act provides a maximum period for an ESO of five years. Section 18 of that Act provides a maximum period for CDOs also of five years. The current regime has a maximum term of five years. This bill has maximum terms of only three years. That strikes the Opposition as a curious anomaly given the Government’s rhetoric associated with the legislation. Of course, the Government has marketed it as a tough new anti-terrorism law. I can see that because one can make an application to extend existing orders the same result can be achieved under this bill. However, it seems odd and makes the Government’s supporting rhetoric sound a little hypocritical or perhaps a little overblown, which is not entirely unknown in the world of political discourse.

I ask the Government—perhaps rhetorically—to explain this discrepancy between five years in the existing legislation and three years in this bill. What are the different considerations that lead this bill to have lesser maximum penalties? I will be interested to know. What makes this issue even more significant is the element involved of misleading the people of this State. The Government not only said it was introducing new, tough anti‑terror laws but it was more specific. In the midst of the media announcement, according to James Robertson of the Sydney Morning Herald, on 4 October the Premier said explicitly that the maximum period of supervision and detention would be five years. Perhaps she had not read the legislation. That is entirely wrong; the bill states three years. The Premier is not entirely across her brief and does not know one of the primary aspects of the legislation she is talking up. In the Opposition’s view, what is worse is that her Government has sought to mislead the people of this State about what it intended to legislate. The incompetence is bad; misleading the community is worse.

While I am talking about the way the Government has presented this issue to the public, I note the seriousness it has invested in the topic. A post-sentence preventative detention scheme was first raised at the Council of Australian Governments [COAG] two years ago, which was clear in the communiqué from 11 December 2015. It was raised again at COAG on 1 April 2016. If this issue is as urgent as the Government claims, it is astonishing that it has taken two years to develop, unless almost everyone liable to be subject to the bill is already covered under the existing schemes. Some might think that is just as well because under the existing scheme they would be caught by the five-year maximum rather than the three-year maximum proposed in this bill. That is not to say there are no people who, theoretically, are not caught under the current regime and would be caught under this bill. I note that the statutory review of the Crimes (High Risk Offenders) Act states at page 64 that certain New South Wales offenders would come within the existing High Risk Offenders Scheme, and there was a Commonwealth scheme that covers Commonwealth offences under December 2016 legislation. The report goes on to say:

However there may be high risk offenders with a high risk of committing a future serious terrorist offence who would not come within either scheme. These offenders would not meet the Commonwealth threshold of having committed a Commonwealth terrorist index offence. For example, if an offender is found guilty of the NSW offence of supply of a firearm which is used to kill a person as part of a terrorist act, this offender would not come within the NSW scheme and would only come within the proposed Commonwealth scheme if there were also relevant Commonwealth terrorism offences for which the offender was imprisoned.

The other scenario of someone currently not caught presented by the report is someone imprisoned for a non‑terrorism, non-violent offence—for example, fraud—who is radicalised in prison. Currently, there must be a link between the offender’s previous offence and future offences. That report is now quite dated. If the Government thought this was an urgent issue, why is it being dealt with on the second last day of the sitting year? I again ask the Parliamentary Secretary to give the House an insight into the Government’s timing.

Schedule 2 to the bill deals with changes to other legislation. Schedule 2.14 amends the Privacy and Personal Information Protection Act effectively to provide exemption for the Australian Security Intelligence Organisation [ASIO] and public sector agencies dealing with ASIO from various provisions of the Privacy and Personal Information Protection Act. Recommendation 12 of the joint Commonwealth and New South Wales review arising from the Martin Place siege deals with that, as does recommendation 42 of the Coroner’s inquest into the deaths arising from the Lindt cafe siege. I note the Coroner’s recommendation refers to the Health Records and Information Privacy Act, which interestingly is not caught within this amendment. I again ask the Parliamentary Secretary to explain why that is the case. I also note the entirely unrelated amendments dealing with the Local Court’s capacity to deal with longer-term inmates possessing prison contraband. As I indicated, the Opposition does not oppose the bill.