BAIL AMENDMENT (PERSONS LINKED TO TERRORISM) BILL 2018

Second Reading

Resumed from 13 March.

HON MICHAEL MISCHIN (North Metropolitan — Deputy Leader of the Opposition) [2.48 pm]: I rise to complete my remarks regarding this bill. As I indicated on the last occasion, the opposition supports this bill, although it has some questions regarding it.

HON ALISON XAMON (North Metropolitan) [3.12 pm]: I rise on behalf of the Greens as the lead speaker to make several comments on the Bail Amendment (Persons Linked to Terrorism) Bill 2018. As has been indicated, I have proposed a number of amendments, which are sitting on the supplementary notice paper. This bill, of course, will apply to both adults and children. It makes three changes to our bail laws. Notwithstanding the title of the bill, the first change is a broad application. It applies to all accused who have been granted bail on any offence, regardless of whether it is related to terrorism. Section 54 of the Bail Act 1982 sets out the circumstances under which the prosecutor or the police can bring a person back to court and apply for their bail to be varied or revoked. At the moment, those circumstances are: a breach or likely breach of bail or home detention conditions; loss of surety; the security has become insufficient; or the accused was granted bail for appeal purposes but has subsequently discontinued or failed to diligently prosecute the appeal. The bill will now make an addition to this list to include if new facts have been discovered or new circumstances have arisen, or circumstances have changed since bail was granted. In theory, that includes new information or a change relating to terrorism, but in practice almost always will not.

The second change applies to any bail proceedings in which “terrorist intelligence information”, as defined, is given. The judicial officer must take all reasonable steps to maintain the confidentiality of that information, including taking secret evidence, prohibiting publication or reference to the information and ordering that certain documents be provided in a redacted form. In addition, no record of a bail decision and reasons for it can include terrorist intelligence information, as defined. If the judicial officer considers that the information is not terrorist intelligence information as defined, they must allow the prosecutor to withdraw information and, if it is withdrawn, prohibit publication or reference to it. However, the judicial officer may still disclose terrorist intelligence information or the withdrawn information to the Attorney General, a court, or a person who has been authorised by the prosecutor.

The third change that this bill contemplates relates to bail for a “person linked to terrorism”, as defined. That applies whatever the charge. Bail in these cases can be exercised only by a court that has been constituted by a judicial officer other than a justice of the peace. In this instance, the court must refuse bail unless there are exceptional reasons that the accused should not be kept in custody. Bail can be properly granted having regard to the usual relevant provisions of the act. This includes overcoming any other presumption against bail that may apply under those provisions, such as if the accused is charged with a serious offence committed while on bail or early release for another serious offence, is charged with murder, or is charged with contravening a supervision order under the Dangerous Sexual Offenders Act. In deciding whether there are exceptional reasons, the court must consider: the nature and seriousness of the offence or the offences; any other pending charges; the probable method of dealing with the accused in the event of a conviction; the accused’s conduct, whether the charge is related to terrorism or not, since being charged or convicted of a terrorism offence or subjected to a control order; and whether bail should be refused and instead a hospital order made under the Criminal Law (Mentally Impaired Accused) Act. Again, I call for that act to be amended as soon as possible, please. The court also needs to potentially consider section 6(d) of the Young Offenders Act if the accused is a child, which is the objective of enhancing and reinforcing the roles of responsible adults, families and communities in making sure that we minimise the incidences of juvenile crime and ensuring we maintain our focus towards punishing, managing and rehabilitating young offenders. The safety of the community is the overriding objective. There is also a bit of a catch-all provision in which the court can take into account any other matters as appropriate.

As I have already said, this bill applies equally to adults and children. The case law relating to the commonwealth equivalent suggests that youth on its own does not amount to an exceptional reason that the accused should not be kept in custody. It is a relevant factor but it is not sufficient on its own. The same goes for matters that are relevant to the child’s youth, for example whether that child has been a victim of grooming by adults or been an alleged perpetrator. To date, most children have not succeeded in rebutting the presumption. Since 2004, of the eight children who have been prosecuted or who are currently being prosecuted under the commonwealth act, seven applied for bail—all in NSW—and all were refused bail at first instance by the NSW Children’s Court. Two of them were subsequently granted bail by the NSW Supreme Court. The source of that information is page 14 of a June 2018 joint submission to the Independent National Security Legislation Monitor for its “Review of the prosecution and sentencing of children for Commonwealth terrorist offences” by the Department of Home Affairs, the commonwealth Attorney-General’s Department, the Australian Federal Police and the Australian Security Intelligence Organisation. Submissions made to that review by the Bar Association of Queensland, NSW Legal Aid, the Law Council of Australia—whose constituent bodies include the Law Society of Western Australia and the Western Australian Bar Association—the Australian Human Rights Commission, and Victoria’s Commissioner for Children and Young People called for section 15AA to be amended so it would not apply to children.

Under this bill, if bail is refused, it need not be reconsidered on subsequent court dates unless the accused satisfies the court that either new facts have been discovered, new circumstances have arisen, or circumstances have changed, or the accused failed to adequately present their case for bail. If bail is granted, at subsequent appearances, a court can order it to continue. I ask the minister to confirm my understanding that in practice if bail is granted, it will continue unless the prosecution applies for it to be reconsidered, in which case the defence will again have to establish that exceptional reasons apply to rebut the presumption. The court must record its bail decision and reasons, but, as noted, it must not include any terrorist intelligence information in the record.

If the charge, or the conviction in the case of a bail pending sentence, is of a terrorism offence—that is, a terrorism offence as defined in section 3(1) of the commonwealth Crimes Act 1914—then section 15AA of that act applies. I have already mentioned section 15AA in the context of the legislation’s likely effect on children accused of terrorism offences. Section 15AA says that bail must not be granted unless exceptional circumstances exist. Unlike this bill, section 15AA does not set out the factors the court must consider in deciding whether exceptional circumstances exist for the purposes of that act. I ask the minister to confirm my understanding of the way the commonwealth act and this legislation are to be read together. If section 15AA of the commonwealth act applies, bail will be determined under that act, with exceptional circumstances meaning and being assessed in accordance with that act; that is, the court will not have to consider the specific factors listed in this bill at proposed clause 3E of schedule 1, part C. If section 15AA of the commonwealth act does not apply, bail will be determined as this bill sets out, with exceptional reasons meaning and being assessed in accordance with this bill; that is, the court will have to consider the specific factors listed in this bill at proposed clause 3E of schedule 1, part C.

In the bill’s current form, the presumption against bail applies not only to people committing or trying to commit terrorist offences; it is broader than that. Regarding the offences to which the bill applies, it imposes a presumption against bail for a certain category of accused for all offences when proceedings commenced with the accused’s arrest rather than a summons. This will include offences that have nothing to do with terrorism, and that, even if proved, would not result in a sentence so long as the accused would be remanded in custody without bail pending trial. Australian Bureau of Statistics figures show that Australia-wide in the September 2018 quarter, 14 053 or 33 per cent of prisoners were unsentenced. The Department of Justice’s 2017 annual report does not show how many unsentenced adult prisoners there are, but it does show that almost half of the young people in detention are unsentenced. A 2018 article in the Criminal Law Journal titled “Bail, Risk and Law Reform: A Review of Bail Legislation across Australia” refers to Victorian research from 2010, indicating that 40 per cent of remandees in that state were either acquitted or received a sentence less than or equal to the prison time they served on remand, while New South Wales research from 2012 puts the figure in that state at 55 per cent.

Regarding the accused to whom the bill applies, the legislation will impose a presumption against bail for people who in the past have had links to terrorism, regardless of how long ago and how they have behaved since. Under the legislation, if a person is convicted of a terrorism offence, for the rest of their life, if they are arrested for any offence ever again—no matter what that is—the presumption against bail will also apply. Under the legislation, the presumption will also apply to a person who has been under a confirmed control order at any time within the last 10 years. I note that the bill has a mechanism to overcome this presumption, but the accused will face difficulty in overcoming it, because exceptional means exactly that, it is a very high bar. Would these factors under proposed clause 3E of schedule 1, part C be regarded by the court as extraordinary or would they be regarded as merely ordinary and therefore insufficient to overcome the presumption? When the charge is not related to terrorism, even if the accused is convicted of the charge, the maximum penalty would be less than the time they would have spent in custody without bail pending trial, and the person had not been associated with terrorism since the conviction or control order that triggered the presumption.

This raises concerns. Bail hearings happen very early in the proceedings, and this, of course, is exactly as it should be, because, without bail, a person is deprived of their liberty on a charge of an offence that they may not have committed. But it means that the accused has very little time to get a lawyer. Overcoming that presumption will be even more difficult for an accused who has not been able to access a lawyer. Even if the accused does manage to get a lawyer, there is little time in which they can fully instruct that lawyer, especially if they are in a custodial facility. On top of this, the accused, and their lawyer if they have one, will be denied access to any evidence that is classed as terrorist intelligence information. Secret evidence clearly will hinder their presentation of a case against the presumption applying. The bill says that the decision made at the initial bail hearing will not be recognised, except in limited circumstances, although one of those circumstances is that the accused failed to adequately present their case for bail. If the cause of that failure to present that initial case for bail was because secret evidence was not made available and was effectively unknown to the defence, this cannot be remedied by reconsidering bail because there is no mechanism whereby the defence can access that evidence, effectively, unless the prosecution agrees to it.

We are trying to achieve a difficult balance with this legislation. The Greens are concerned about whether we have the balance right in having a presumption against bail also apply to non-terrorism charges against people who are not alleged to be currently involved in terrorism and who might subsequently be acquitted of the current charge. That is not about keeping our community safe from terrorism. I am concerned that it could be never-ending retribution for conduct that may have taken place decades ago, when someone was a minor and perhaps had been heavily groomed by the adults around them.

I am concerned that the bill potentially could be counterproductive if it ends up undoing any rehabilitation that an accused person may have achieved. The accused’s subsequent conduct is one of the factors that will be taken into account by the court, but, again, the presumption is rebutted only by exceptional reasons, and that is a really high bar. At what point is rehabilitation sufficiently exceptional to overturn that presumption against bail? If the presumption is not successfully overturned, what rehabilitation gains will be lost by remanding to custody a person who has not even been charged with a terrorism-related offence? The bill will be counterproductive if it dissuades a potential informer from speaking out. I am concerned that a consequence may be that it is perceived as getting the balance wrong—that it is unjust—and that would be a bad outcome for the community. The Greens strongly prefer that the courts decide whether to refuse or grant bail based on all the circumstances made available, unfettered by the proposed presumption—retaining judicial discretion. Courts are in a position now to consider all the circumstances on a case-by-case basis—the sorts of circumstances that, quite frankly, we in this place as legislators cannot consider. We cannot predict every circumstance that will potentially arise in the future. I accept that courts are not infallible—we know this—but nobody is, and I still maintain that the courts are more equipped than we are to deliver justice on an individual basis.

In relation to the protection of terrorist intelligence information, once again the Greens are concerned that we may not have the balance right. I fully acknowledge that we are trying to achieve a very difficult balance between two competing needs. On the one hand there is the need to protect national security and our citizens, and on the other hand there is the need for the accused to still have a fair hearing. The accused needs to know the evidence against him or her and should have an opportunity to challenge or at least to contextualise it. The preferable balance is to use protections for national security that have the least adverse outcome for the defendant. The bill ties the court’s hands by mandating maximum restrictions in all cases involving terrorist intelligence information. We are talking about secret evidence that no-one but the court and the prosecutor are privy to, unless the prosecutor consents. I think this is extreme. It enables the evidence to come before the court, which otherwise might not happen, but secret evidence is the most adverse outcome possible for the accused, who is denied a fair bail hearing on top of the presumption against bail. Our justice system relies on an adversarial mechanism to get to the truth, but this mechanism cannot work if there is secret evidence that the defendant does not know about and therefore cannot challenge or provide context to. It is not clear from the bill whether the defendant is even to be informed of the fact that secret evidence is being given against them. Secret evidence will not be a problem for just the defendant. If the evidence is unreliable and too much weight is given to it, it will be a problem for the administration of justice generally. I am concerned that that means that it may bring the administration of justice into disrepute.

I now refer to the 2004 Australian Law Reform Commission’s ninety-eighth report, called “Keeping Secrets: The Protection of Classified and Security Sensitive Information”. It is noted at paragraph 10.4 of that report —

Apart from its inherent unfairness to a party, the use of secret evidence presents dangers for the administration of justice insofar as it may encourage less rigorous investigations and prosecutions, and may encourage an environment where corrupt or improper practices can flourish and escape detection.

That same report goes on to give an example of one case in which the source of secret evidence against a party was their ex-spouse, who had made numerous false accusations in the course of a custody battle over their child. Rumour and innuendo, and double and triple hearsay collected by investigators can run the risk of being given too much weight when it comes to secret evidence if there is no process to challenge or contextualise it. The report considered the matter carefully and stated in recommendation 11–40 —

An accused person and his or her legal representatives should have access to all evidence tendered against him or her.

After being weighed up, it was found that we need to do the opposite of what this legislation proposes. The ALRC gave its reasons at paragraph 11.203 when it stated —

As a matter of principle, the leading of secret evidence against an accused, for the purpose of protecting classified or security sensitive information in a criminal prosecution, should not be allowed. To sanction such a process would be in breach of the protections provided for in Article 14 of the International Covenant on Civil and Political Rights for an accused to be tried in his or her presence and to have the opportunity to examine, or have examined any adverse witnesses. Where such evidence is central to the indictment, to sanction such a process would breach basic principles of a fair trial, and could constitute an abuse of process.

... the ALRC remains of the view that secret evidence should never be lead against an accused person in criminal proceedings. No submission or consultation has caused the ALRC to alter its views.

If members do not accept this argument and see the need for exceptions, I point out that the bill does not even give the court discretion to consider any alternatives that may be more proportionate. For example, one alternative is the defendant’s lawyer, or alternatively special counsel who may have been appointed to represent the defendant’s interests, being privy to that evidence, subject to the lawyer being either security cleared or giving a confidentiality undertaking to the court. That would be one mechanism to try to achieve more of a balance. That does not deliver a fair hearing, as we understand it, because the defendant is still not fully aware of the content of the evidence against him or her, but it would at least be more fair than what the bill in front of us proposes. The bill does not provide for that to happen without the prosecutor’s consent. I am talking about the consent of the opposing party to the case. The court is deprived of discretion to decide the most appropriate measures to take.

An important point is that the ALRC report also considered whether secret evidence is in fact unconstitutional. Under the separation of powers that divides Australian governance into legislative, executive and judicial branches, judicial power is vested in courts. Laws that require, and also perhaps laws that even permit, a process that is inconsistent with the judicial process are not constitutional. Paragraph 11.202 of the report states, in part —

As discussed in Chapter 10, apart from general principles of fairness, any legislation that would require a court to hear classified and security sensitive evidence in the absence of an accused would probably infringe Chapter III of the Australian Constitution. Even legislation which permits a court to do so runs a risk of offending Chapter III as it would be authorising a process not in accordance with judicial process.

The question I have is whether the secret evidence protections in this bill actually cross that line. I understand that legal advice from the Solicitor-General to the Attorney General—which of course I have not had the opportunity to see—has said no, but I am not quite as certain as that. If this bill were passed, perhaps we might be put in a situation in which that will be tested and I suppose we will find out whether indeed it is unconstitutional.

Another reason that the bill’s secret evidence provisions get the balance wrong, in my opinion—I ask the minister to confirm this—is that although these mandatory secret evidence provisions will apply to bail applications for charges that are completely unrelated to terrorism, during trial on an actual terrorism charge the court does have discretion to consider more proportionate measures to balance the accused’s right to a fair trial with national security protected. I am also concerned that the bill does not contain any provision about oversight to the extent to which proposed section 66C will be used. Proposed section 66C(3) permits the court to disclose the information to the Attorney General but does not compel it. Oversight of such an extreme provision—it is extreme—should be mandatory. We need to have oversight so that we can ensure that the administration of justice is not brought into disrepute. If the bill is passed, it is vital that the Attorney General knows how often, and under what circumstances, secret evidence is being used in our criminal courts. Therefore, I have placed on the supplementary notice paper a proposed amendment that would facilitate that information being provided to the Attorney General. Parliament needs to be able to receive at least some annual statistical information about that issue. Information about the use of surveillance devices and assumed identities is already tabled in this place. That information does not give us a great amount of detail, and therefore the oversight is quite minimal, but it gives this Parliament an indication about how these laws are being used.

I also believe that a review clause is appropriate to monitor the impact of this bill. Therefore, I have put on the supplementary notice paper a proposed amendment for a review clause. I have been led to believe behind the Chair that the government is contemplating its own review clause. That amendment has not yet been presented, but if that is a better review clause than the one I have proposed, I will be prepared to withdraw my amendment for contemplation. The amendments I propose are minimal, but they are important amendments to try to mitigate some of my most serious concerns about how this bill might work in practice.

Terrorism is a very real issue. We have reflected in this place today on the terrible terrorist act that occurred to our close neighbour, New Zealand, a few days ago. We are talking about 50 people who have not yet even been buried, so this is very raw for us. It does not matter where a terrorism threat comes from. We as a community are very much alive to the risk of terrorism. That is why we contemplate what would otherwise be very extreme measures to provide our police agencies with exceptional power to respond to that risk. The challenge we face is trying to strike a balance. Sometimes the law gets it wrong. If people are denied the opportunity to have their day in court in a fair way, justice will not be served.

I now want to make some comments about how children and young people may be impacted by this bill. As I have said, this bill applies equally to adults and children. I am not so naive as to believe that children can never pose a risk, and we have certainly seen that occur in Australia, so I understand that. However, we need to understand that children may be exceptionally vulnerable to grooming by extremists. Children may also grow up and become acutely aware that they have been manipulated. A child may have been associated with terrorist activity and 20 years later has managed to get their life back on track. However, they may find themselves accused—not even found guilty—of a crime, perhaps even a relatively minor crime from which they are subsequently exonerated, and be denied bail, regardless of their personal situation and whether they have dependants et cetera. That is a genuine concern. This bill will effectively throw out the provisions that would normally apply under the Young Offenders Act, which recognises that children need to be treated differently under the law and be given the fullest opportunity to be rehabilitated and live meaningful lives. I have serious misgivings about how this bill will play out in practice, and I am not sure that it has got the balance right. Therefore, I have placed on the supplementary notice paper some proposed amendments to deal with that issue, and I will discuss those in more detail when we go into committee.

With those comments, and in the hope that I will get a response from the minister about the questions I asked in the course of the second reading debate, I will leave it at that.

[Speeches and comments from various members]

Committee interrupted, pursuant to standing orders.

 

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