National call for proper debate on 'foreign fighters' bill

There is growing alarm that the Australian Government is intent on rushing through Parliament very significant new counter-terrorism legislation - The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014- without allowing the community or the Parliament adequate time to understand or debate this legislation.

This is a reckless approach to legislating in any context- but particularly so when the proposed laws will have very significant implications for Australian's rights and liberties.  Today, 43 civil liberties, human rights, ethnic, academic and other civil society groups and significant academics and lawyers have published a joint statement calling on the Government to slow down:  

'Given the extraordinary nature of this Bill, the undersigned call on the Australian Parliament to not pass the Bill without a more comprehensive public consultation on the necessity of the laws and their compliance with domestic and international human rights obligations.'

NSWCCL, along with Liberty Victoria, Queensland CCL, South Australia CCL and the Australian Council for Civil Liberties, signed this public statement. Two week ago we desperately scrambled to put together a submission on this bill in the ridiculously short time of the 8 days allowed by the Government. This is the largest of the counter-terrorism bills. It amends 20 existing statutes, the explanatory memo runs to 227 pages and the actual bill alone constitutes 158 pages of amendments. 

Plainly, the Government was not intent on a serious or genuine consultation process for this review. There is no urgency in relation to the vast majority of proposed laws in this bill. It is a manifest lack of respect for civil society organisations and their legitimate and important voice in the democratic process of lawmaking- and for the role of Parliament as there is no chance that members will have the opportunity to gain an informed understanding of this large bill and its complex and multitudinous provisions. 

The councils for civil liberties are deeply concerned about many aspects of the 'Foreign Fighters' Bill. 

Extension of sunset clauses until 2025

The Bill proposes to extend existing sunset clauses for contentious counter-terrorism laws for a further 10 years. These sunset clauses, relating to control orders, preventative detention orders (PDOs), and ASIO’s questioning and detention powers, were incorporated into relevant legislation because it was accepted that these powers were extraordinary and should be temporary. 

The CCLs strongly oppose the inclusion of the provision for the rollover of the current sunset clauses for a further decade in this Bill.  Some of these laws should not have been enacted even as temporary measures.  The need to continue with any of them beyond their scheduled sunset date must be carefully and independently assessed.

A decision to roll-over these sunset clauses, especially for such a lengthy period, should only be made after careful evaluation of their necessity, proportionality and broad impact on democratic values and civil liberties and rights.  

As the joint statement notes: 'These regimes risk encroaching on rights to freedom from arbitrary detention, free speech, movement and association, without specifically addressing the threat posed by foreign fighters. In any event, none of these regimes is due to expire until the end of 2015.'

Foreign incursions and recruitment 

The proposed new criminal offences in relation to foreign incursions and recruitment have disturbing aspects which we oppose. 

The stated purpose is to enable the investigation, arrest, prosecution and punishment of people supporting foreign conflicts and, as a secondary purpose, to limit the opportunities for, and means of, travel for foreign fighting and support for foreign fighters. There are reasonable purposes.  The problems relate to the expansive reach and the inappropriate penalties:some offences are so loosely worded that they may capture either innocent activity or activity that falls far short of the commission of serious crime; ministerial discretion in some matters is cast far too widely and the penalties imposed in relation to most of the crimes are seriously disproportionate. 

In particular the broad definition of 'engages in a hostile activity' and  the inclusion of 'subverting society' in that definition creates significant problems in that the effect is to catch a wide array of activities by Australian citizens and residents in justified or unexceptional circumstances. The Bill creates a large number of foreign incursion offences. They are all too often defined so widely that they may embrace and penalize severely activity that in normal circumstances would be considered as no more than preparatory to the commission of a minor criminal offence. And the penalties that apply to them are draconian. 

The CCLs oppose this section of the Bill and argue that the existing provisions in the Crimes (Foreign Incursions) Act 1979 already cover the issue and provide more proportionate penalties.  

Advocacy Offence 

In the view of the CCls the proposed law to criminalize incitement or a generalized expression of support for, or ‘promoting and encouraging’ terrorism is an unacceptable restriction on free speech.  For speech to be criminalized in this context, there needs to be an intention to encourage violence and a specific connection between the conduct of the speaker and the actual use of force or violence or the commission of an act of terrorism. The proposed laws go far beyond this. 

The CCLs oppose the inclusion of the 'advocating terrorism' offence in the Bill. 

Declared No-Go Zones 

The Bill provides that it is an offence for a person to enter or remain in an area in a foreign country that has been 'declared' by the Foreign Affairs Minister. The Minister has to be satisfied that a listed terrorist organisation is active in that area. The penalty is 10 years imprisonment. There is a narrow list of reasons for going to the area which will except one  from this offence: professional journalism, humanitarian activity and family related activity. These need to be established as the sole purpose for travelling to the area. 

In our view, the starting presumption in a liberal democracy should be that its residents are free to travel wherever they please. If there is a need to limit freedom of travel in the context of terrorism, any limitation should require a connection to terrorist activity. Criminalizing travel per se is an extraordinary departure from Australia’s liberal democratic values. 

Furthermore, contrary to the Government's assertions, the Bill effectively reverse the onus of proof and threaten the right to a fair trial and the presumption of innocence.

For these reasons the CCls recommend the deletion of this proposed offence from the Bill.

The CCLs also have grave concerns about other aspects of this Bill including: delayed notification warrants for access to premises including those of innocent third parties; unwarranted doubling of the length of suspension of travel documents; extraordinary power for a customs officer  to detain a person indefinitely and incommunicado for first 4 hours if , in his opinion the person 'Is or is likely to be involved in an activity that is a threat to national security or the security of a foreign country' and the proposed deprivation of welfare payments on the basis of ministerial decision.

For more detail see the CCLs submission to the PJCIS. 

A veritable avalanche of counter-terrorism laws 

We have seen progressive, incremental encroachments on democratic values, liberties and rights since our very first ‘tranche’ of counter-terrorism laws in 2003.  At the end of October, the Australian Parliament passed the National Security Legislation Amendment Bill (No 1) 2014 which included some particularly disturbing proposals which are now law and which will inevitably seriously erode important rights and liberties in Australia. These include: creating a Special Intelligence Operations (SIO) regime which provides ASIO officers immunity from civil and criminal prosecution for unlawful acts; a new offence punishable by 5 years imprisonment for any person disclosing any information about a SIO and extraordinarily wide ASIO access to (undefined) networks of computers of both suspects and non-suspects on the basis of a single warrant.

Collectively these provisions will have a profound chilling effect on journalism and a free media, on legitimate  whistle-blowers and, ultimately on free discourse.

The Parliamentary Joint Committee on Intelligence and Security (PJCIS)  is due to report on its hasty inquiry into the 'Foreign Fighters' Bill on Friday 17th October. We hope,but are not optimistic, that the PJCIS will have responded positively to the widespread concerns about the lack of time for proper consideration of the Bill and the many deep concerns about its overreach and implications. Otherwise, we can expect to see the Government pushing the Bill through Parliament in the next week or two. In that unhappy context we can only rely on the Opposition being willing to take a more independent and critical stance than it has flagged to date.  

Looking beyond this latest bill, we expect to see the Government's plans for the highly contentious data retention provisions in the near future. 

It has been a veritable avalanche of counter-terrorism laws. And this in the context of Australia already having the most extensive regime of counter-terrorism legislation among western democracies - and being the only one without any bill or charter of rights  as protection against overreach. 


Joint Statement on Foreign Fighters Bill 

Joint CCLs submission on Foreign Fighters Bill