Dr WOODRUFF (Franklin – Leader of the Greens) – Honourable Speaker, this bill seeks to amend the Police Powers (Public Safety) Act 2005 and the Terrorism (Preventative Detention) Act 2005 to extend the powers brought in by those acts for an additional 10 years, and I will say at the outset that the Greens will be supporting this legislation and we have an amendment that I will get to and discuss shortly.
It is always important to consider the context in which certain legislation was introduced. Minister, you noted the powers were instituted across Australia following the intergovernmental agreement on counter-terrorism laws in 2004 that arose from the 11 September 2001 attacks on the World Trade Center and the Pentagon in the United States, as well as the 2002 Bali bombings. Those events are writ large in global consciousness. Since that time, terrorism has continued to be a prevalent threat across the globe. We don’t take it lightly that ASIO has upgraded Australia’s national terrorism threat level to ‘probable’, meaning there is a 50 per cent chance of an onshore attack or attack-planning in the next 12 months.
It’s the responsibility of governments to act and sometimes to take extraordinary actions to keep citizens safe. We recognise that. We respect that. People want to feel safe in the community when they are going about their everyday life, when they’re going into public places, when they’re taking part in events, when they’re going on public transport, where they’re standing peacefully protesting. All these situations require people to justifiably be able to feel safe. However, the United Nations Assembly did note that it is essential to remember that, ‘Effective counterterrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing.’ That is obviously the balance we’re trying to strike here.
The Police Powers (Public Safety) Act 2005 gives authority to the police to, amongst other things, require that a person disclose their identity and arrest them without a warrant if they fail to comply; enter and search vehicles and premises without a warrant; seize and detain things without a warrant; to stop and search people without a warrant; and to conduct body cavity searches and strip searches without a warrant. Most people would agree they are very broad powers.
The Terrorism (Preventative Detection) Act 2005 allows the state to, in essence, deprive a person of their liberty for a crime that has not yet been committed. These are actions that in ordinary circumstances are fiercely opposed by our rights-based system of law and have long been fiercely opposed. In extreme circumstances, we as a people may agree to derogate our rights in order to ensure the safety of the community, but those extreme circumstances cannot and should not go on forever, and they should not go on forever without forensic examination of whether they need to be changed.
Both acts contain sunset clauses that provide for the expiry of the legislation at a particular point in time. This bill would amend the sunset clauses to extend the operation of these powers by a further 10 years until 2035. The Greens consider that to be a considerable extension of time, given the extraordinary nature of the principal acts. Minister, as you noted in your speech, sunset clauses are designed to ensure there is proper scrutiny by parliament if acts are to be remade. In their submission on this bill, the Commission for Children and Young People noted that, unlike other jurisdictions, Tasmania has not completed a formal review of the principal act since they came into effect 20 years ago, unlike all other jurisdictions in Australia.
I understand that it’s the government’s intention to review both the acts in the next year, perhaps with the support of the Tasmanian Law Reform Institute. The Greens think that is proper and in line with the intention of the original acts and also the broader international approach to terrorism laws in general.
I want to quote a finding from the International Commission of Jurists Report of the Eminent Jurists Panel on Terrorism, Counter Terrorism and Human Rights. They observed a concerning drift of the extraordinary powers contained in terrorism legislation into the normal legislative framework. They said:
Much of the evidence suggested that these temporary and emergency responses tended to seep into other areas of law and negatively influence the institutional culture of the police, the legal system and the judiciary.
It’s critically important that parliament, the government, and the Tasmanian Law Reform Institute are able to properly scrutinise both of these acts before they’re extended for a long period of time. It seems to us that a shorter extension period is appropriate to allow a proper review of both acts and their legislative frameworks.
In this bill we will be moving amendments to reduce the length of extension from 10 years to three years. I want to explain why. The Greens believe that three years will provide sufficient time to undertake a thorough review of the legislation and a buffer in case there are any delays, particularly to ensure the involvement of the Tasmanian Law Reform Institute (TLRI). Some people would say three years is a long time to do this work. However, that seems reasonable given the role of the TLRI, not that I’m making any statement about the efficiency of their work, not at all.
As noted by the minister, other jurisdictions in Australia have continued the operation of these acts for a variety of time periods. Queensland expires in 2040, Victoria in 2031, the Australian Capital Territory in 2027, the Commonwealth, New South Wales and Northern Territory in 2026 and South Australia and Western Australia at the end of this year. Three years is a timeframe that’s consistent with other jurisdictions, as well as consistent with recommendations on similar provisions from the Federal Parliamentary Joint Committee on Intelligence and Securities review of police powers in relation to terrorism, which the minister mentioned himself in his contribution.
It’s also consistent with the view of the Law Council of Australia, who have said in relation to similar federal legislations –
The extraordinary nature of the relevant powers in departing from the usual warrant-based authorisation requirements means that their continued necessity must be reviewed regularly. The Law Council notes that a three-year period of effect is preferable to any longer period of operation.
Extending these acts to 2028 will ensure that Tasmania is broadly consistent with other states and territories and ensure that the police have necessary powers in the short term, while providing the time for a proper and thorough legislative review, which may recommend extending that sunset clause further, or indeed doing away with sunset clauses altogether and making these provisions permanent.
On balance, that is probably unlikely, but the point is we don’t know what a review will recommend until it’s undertaken. We don’t consider it’s appropriate to continue these extraordinary powers for another 10 years unchallenged.
The final point I want to make continues with some of the comments that the honourable Ella Haddad made. It’s something that was raised by Equality Tasmania in their submission to the draft bill and brings me to my earlier point about understanding the context in which legislation is introduced. We’re in a markedly different environment now with regard to terrorism than we were following the September 11 attacks.
The scale and nature of threats have changed, as has ASIOs categorisation of who or what is considered a threat – very different. We can’t ignore the escalation of far-right extremisms that’s accelerated in recent years, particularly since the election of Donald Trump and the COVID-19 pandemic.
In every annual terrorism threat assessment since 2019, the Director General of ASIO, Mike Burgess, has observed an increase in the terror threat from far-right extremists. Young people, including in Australia, are being radicalised online by the far right and they’re being aided and funded by famous figures such as Elon Musk, Alex Jones, Tommy Robertson and Jack Posobiec.
I note that to demonstrate just how significantly our understanding of terrorism has changed since this legislation was first introduced – a completely different and new category of people. Of course, we can’t have this debate without acknowledging that right-wing governments globally – but especially and infamously in the United States – are also using terrorism legislation to declare predominantly left-wing antifascist organisations as domestic terrorists. ASIO has noted that left-wing extremism is not prominent in Australia.
As Equality Tasmania has noted, in some countries, including Russia, LGBTI organisations have been designated as extremist or terrorist organisations, simply because of the advocacy for LGBTIQA+ equality and inclusion. Equality Tasmania goes on to say:
Stereotypes, misinformation and misperceptions about LGBTIQA+ people, extremism and terrorism create the real possibility of LGBTIQA+ people, especially transgender people, being targeted under anti-terrorism laws. This could take the form of harassment by particular law enforcement officers or persecution by a future government.
I’m not suggesting that this government or the department would use the extension of these acts to target LGBTIQA+ Tasmanians, but it’s important to consider how these laws could be used in the worst-case scenario. I note and endorse the concern that Ms Haddad raised about people who are peaceful activists protesting about the Australian government’s lack of action for Palestinian people, wanting to make statements about the complicity of all Australians in the genocide that’s occurring, being swept up as being anti-Semitic when really they’re just speaking about the reality of the circumstances that are happening.
That is a thread of conversation in Australia, as well as in countries overseas. We need to take that seriously. We need to make sure that people who are making genuine, peaceful statements are expressing the reality of what’s happening, an uncomfortable reality for some, but a necessary conversation to have as part of a community of people upholding our rights to protest, to speak and to be able to hold peaceful public meetings. They’re really important values to hold on to and now is the time to support them more than ever.
These are worst-case scenarios, but given the trends that we’re seeing internationally, I believe the comments I’m making reflect the concerns of the community to strike a balance. We want to keep Tasmanians safe and the amendment we’re looking at would do that. It would not remove any laws, it would bring forward the process of review and put a very clear timeline on when it would need to be done by, with the possibility of having that sunset clause extended if necessary, if for some reason things weren’t conducted in that time. I think it’s very unlikely that a review couldn’t be undertaken within three years, but there’s always the possibility of coming back if that hadn’t happened, not that I’m encouraging that.
There is no change to the situation in terms of keeping Tasmanians safe, but neither is there a laxity about focusing on reviewing these very substantial powers that are available to the police and other authorities. Ten years is a long time for the community to have a fear held over their heads that powers could be misused and we want to make sure that they are reviewed and where necessary strengthened and focused, where they need to be focused to keep people safe.
