Committee
Resumed from 20 March. The Chair of Committees (Hon Simon O’Brien) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.
Clause 11: Section 66C inserted —
Progress was reported on the following amendment moved by Hon Alison Xamon —
Page 8, after line 6 — To insert —
66D. Annual report to include information about application of s. 66C
(1) The accountable authority, as defined in the Financial Management Act 2006, of the department of the Public Service principally assisting in the administration of this Act must, in each annual report submitted under the Financial Management Act 2006 Part 5, include information relating to action taken under section 66C(1) in proceedings on a case for bail in the financial year to which the annual report relates.
(2) The information referred to in subsection (1) must, without disclosing terrorist intelligence information, specify —
(a) the number of proceedings in which action was taken under section 66C(1); and
(b) in each of those proceedings whether the accused had access to the terrorist intelligence information received by the judicial officer and whether, and to what extent —
(i) evidence by or on behalf of the accused was received; and
(ii) argument by or on behalf of the accused was heard.
Comments and speeches from various members
Hon ALISON XAMON: Following the explanation that has just been given by the minister, if anything, I am even more concerned about these provisions than I was when I proposed this amendment. This emphasises more than anything how critical it is that if we are to have such a strong deviation from the rule of law and the right of anyone to be subject to fair judicial process, at the very least, there needs to be some level of information given to Parliament, admittedly de-identified. That is exactly the purpose of this amendment.
It has already been the will of this place not to allow any sort of information to be made available to the Attorney General. That has been debated and not agreed to by the house. That leaves us with only one mechanism by which we can have any sort of oversight. I must admit that I have not been persuaded by the arguments put forward by the government about the level of alleged risk in allowing such de-identified information to be made available. The concern here is that we are talking about small numbers of people. We are indeed talking about small numbers of people, as evidenced by other terrorism-related acts that this chamber also receives regular data on, such as the Terrorism (Preventative Detention) Act 2006. If the concern is that we are talking about very small numbers of people, I would point out that these people will not have any indication at all that this data may apply to them.
One of the things that I hope has become quite apparent to people in this place is that there is no particular cohort of the community that we can single out as being solely responsible for terrorism-related activity. A narrative has been propagated in the past that this activity has been the responsibility of members of the Muslim community, but we know that it is far broader than that. Recent events have highlighted that in the most tragic of ways.
This issue of oversight is one that I think this chamber needs to take extraordinarily seriously. What we have just heard is a proposal within new proposed section 66C that has overwhelming implications for people who may be innocent and subject to these proceedings. I draw members’ attention to a highly significant report, which has been tabled while we have been debating this particular provision: the fifth report of the Community Development and Justice Standing Committee, “No Time for Complacency”. That report undertook an inquiry into the protection of crowded places in Western Australia from terrorist attacks. There are some very important recommendations which this chamber needs to be mindful of that have come out of this inquiry, which I think are deeply pertinent to the amendment in front of us today. Finding 22 reads —
Existing oversight measures fall short when it comes to holding agencies across government in Western Australia to account for the administration of counterterrorism policies, particularly in relation to state police preparedness.
The report refers to the link between terrorism and the need to ensure that we have appropriate oversight. In chapter 3, page 61, there is a very important finding. It says —
There are limits to Parliament’s ability to oversee this area
It is a central role of the WA Parliament to hold the executive arm of the government to account for the administration of its policies. This includes how effectively and efficiently WA Police is managing preparedness for terrorist acts, particularly as it relates to the state emergency management framework. Parliaments, including WA, have a number of mechanisms to fulfil this role such as Question Time, debates, statutory agencies that report directly to parliament and carry out integrity functions (such as the Ombudsman and Auditor General), and parliamentary committees like the Community Development and Justice Standing Committee.
In practice, many of these mechanisms are inadequate in the face of a sensitive policy area like counter-terrorism.
It goes on to discuss some of the factors that are limiting parliamentary oversight, which were uncovered in the course of the inquiry. The general thrust of the findings is that this is a problem. We need to have parliamentary oversight of what is happening around these areas and what is happening in terms of our response. It is a huge concern to me that, on the one hand, we have parliamentary inquiries that are starting to look at this issue and are lamenting the lack of parliamentary oversight, when at the same time we are including what are extraordinary measures within our courts and preventing the most basic of de-identified information from being available to this Parliament in terms of how it is being implemented. I point out recommendation 15, which states —
That the Premier, as a matter of urgency, investigates ways to rectify the current lack of independent oversight in relation to the state’s preparedness for a terrorist attack.
That refers to ensuring that people are looking at ways to respond to this, but also that Parliament is effectively being kept in the dark when it comes to these provisions. This bill has significant implications for individuals who will be subject to its provisions. We are hearing that there could be court proceedings in which a couple of people are in the know, but nobody else will have a clue that they are subject to these provisions—not even the defence lawyer. One would have thought that at the very, very least, as a bare minimum, Parliament is entitled—in fact, needs—to be receiving this basic information in order to have an understanding of how this is being practised.
I am aware that there is a proposed amendment to my amendment that has been circulated around the chamber, which is yet to be formally introduced. I note that the amendment, as I understand it, is in response to concerns that were raised by the government the last time we were discussing this—that the scope of what I had proposed was too broad. I indicated at that point that I was prepared to contemplate an amendment to my amendment to limit the scope, if that was a genuine concern. However, I want to express again my deep concern that we are introducing extraordinary measures, and I cannot see that there is any oversight anywhere.
Comments and speeches from various members
Hon MICHAEL MISCHIN:
Comments from Hon MICHAEL MISCHIN
I would propose to support Hon Alison Xamon’s amendment, because I have not been convinced that the information that is sought to be disclosed every 12 months goes anywhere near the sensitivity that is attributed to it. It certainly goes nowhere near what was thought to be a comprehensive accountability in the Terrorism (Extraordinary Powers) Act 2005 or the Terrorism (Preventative Detention) Act 2006. Therefore, I move the following amendment to Hon Alison Xamon’s amendment —
To delete after “whether” —
, and to what extent
I was provided with a copy of supplementary notice paper 112, issue 4, which signifies where the amendment will take place. I move that amendment to Hon Alison Xamon’s proposed section 66D.
The CHAIR: Members, Hon Michael Mischin has moved to amend the amendment proposed by Hon Alison Xamon in this manner: that at proposed section 66D(2)(b), to delete after “whether” the phrase “, and to what extent”.
Hon SUE ELLERY: The government will not be supporting this further amendment. As I outlined when we were debating this the last time the house was sitting, it remains problematic. I appreciate the honourable member is taking out part of the analytics by removing the words “and to what extent”, but it will still require public servants to identify that evidence was received by, or on behalf of, the accused and an argument was heard by, or on behalf of, the accused. I have already outlined to the chamber the reason why we do not support the reporting of the numbers. I have already provided to the chamber, in the last sitting week, the reasons why—notwithstanding the removal of the words “and to what extent”—we still think this poses a risk. Again, it comes down to the government acting on the best possible advice provided to us by those agencies that are concerned with sharing terrorist-related intelligence and acting on the side of protecting public safety.
Hon ALISON XAMON: I rise to indicate that the Greens will be supporting the proposed amendment to my initial amendment. I am still of the view, notwithstanding the government’s response, that it is very important that this bare minimum of information is provided.
Comments and speeches from various members
The CHAIR: The question is that the words proposed to be deleted be deleted.
Division
Amendment put and a division taken, the Chair (Hon Simon O’Brien) casting his vote with the ayes, with the following result —
Ayes (20)
Noes (11)
Amendment on the amendment thus passed.
The CHAIR: We now return to the proposed amendment, as amended. The question once again is that the words proposed to be inserted be inserted.
Division
Amendment put and a division taken, the Chair (Hon Simon O’Brien) casting his vote with the ayes, with the following result —
Ayes (20)
Noes (11)
Amendment, as amended, thus passed. Clause, as amended, put and passed. New clause 11A —
Hon SUE ELLERY: If it assists the committee, issue 4 of the supplementary notice paper is different from issue 3 in that the amendment at 7/NC11A in the name of Hon Alison Xamon is different. The amendment currently on the supplementary notice paper in my name was an alternative review provision. Her original provision was for a five-year review, but the government preferred three years. Hon Alison Xamon has now, on supplementary notice paper 112, issue 4, amended her proposed review provisions, effectively so that a report on the review is tabled as soon as practicable after the third anniversary of the day that the bill comes into effect, and after that at intervals of not more than three years. It has the same effect as the government’s amendment, so I will choose not to move my amendment, and the government will support the new version of Hon Alison Xamon’s review clause.
The CHAIR: Thank you for that, minister. We will not contemplate the amendment shown at 6/NC11A on our supplementary notice paper. Instead, I will move down the supplementary notice paper to give the call to Hon Alison Xamon, if she wishes to move the amendment standing in her name.
Hon ALISON XAMON: I move —
Page 8, after line 7 — To insert —
11A. Section 67A inserted
After section 67 insert:
67A. Review of amendments made by Bail Amendment (Persons Linked to Terrorism) Act 2019
(1) The Minister must review the operation and effectiveness of the amendments made to this Act by the Bail Amendment (Persons Linked to Terrorism) Act 2019 and prepare a report based on the review —
(a) as soon as practicable after the 3rd anniversary of the day on which the Bail Amendment (Persons Linked to Terrorism) Act 2019 section 11A comes into operation; and
(b) after that, at intervals of not more than 3 years.
(2) The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared, but not later than 90 days after the 3rd anniversary or the expiry of the period of 3 years, as the case may be.
Comments and speeches from various members
Hon ALISON XAMON: This is an issue that I raised directly with parliamentary counsel when I asked it to draft the amendment before us now. I asked parliamentary counsel why it had been tied to the commencement of the review clause itself rather than to the commencement of clause 12, which is the presumption clause. The response that I received from parliamentary counsel at the time was that there is no difference. Because clause 2 provides for sections 1 and 2 to commence at royal assent and all the other clauses to commence on a day fixed by proclamation, they effectively read that as meaning that it was starting at the same time. The other information that was given to me by parliamentary counsel at the time was that it has stopped drafting that different clauses can be proclaimed and commenced at different times because it was causing too much confusion. Even if it was not the case, parliamentary counsel also ties commencement of the time running for review to commencement of the review clause itself, otherwise the time in which to carry out the review could be foreshortened so much as to make it impracticable to do so. It said that, at worst, it would be impossible to do if the entire time for review had already run and the report had fallen due at the time that the review clause had commenced.
Effectively, based on that information, which was given to me at the time by parliamentary counsel, I was satisfied that the amendment that it drafted was fit for purpose. I share the concerns that have been raised by Hon Michael Mischin. I was satisfied that parliamentary counsel had taken that into account through the review clause, which is currently in front of us and being discussed.
Comments and speeches from various members
Hon MICHAEL MISCHIN: By happy coincidence, I do. I have listened with interest and I appreciate the exchange that I have been able to have with the minister on this. I can see that much of it may be a convention and approach that parliamentary counsel has taken. I think that the best way of dealing with it, as the minister has suggested, is that instead of the amendment that I had posited, we delete the reference to “section 11A” and replace it with a reference to “section 12”. In that way, when the operative part of the bill, which introduces the schedule and without which there is no point to the bill, comes into operation, so will the review clause.
I move —
To delete “11A” and substitute —
12
Hon ALISON XAMON: I indicate my willingness to support the amendment to my amendment. I was happy to move it, as suggested by the government; however, I was struggling to get hold of a clean copy in time.
Amendment on the amendment put and passed. Amendment, as amended, put and passed.
New clause, as amended, put and passed. Clause 12: Schedule 1 Part C amended —
Hon ALISON XAMON: I move —
Page 9, lines 22 to 25 — to delete the lines and substitute —
(d) in the case of a child —
(i) consider the Young Offenders Act 1994 section 6(d) as an objective of this Act with the safety of the community being an overriding objective; and
(ii) observe the Young Offenders Act 1994 section 7(h) as a general principle with the safety of the community being an overriding principle.
During my contribution to the second reading debate I raised a number of concerns about the provisions of this legislation. One concern in particular was about the impact this legislation will have on children, not because I fail to acknowledge that children can engage and indeed have engaged in terrorist activity in Australia—much to my extraordinary sadness—but because, when it comes to acts of extremism, children can be particularly vulnerable and are easily indoctrinated. However, they are also likely to grow out of this when they are older. As has been discussed in the policy of this bill, the provisions of this legislation can effectively follow people for their entire lives. If a child is involved in suspected extremist activity when they are young and they are subsequently arrested for a completely unrelated matter as adults many years later, the provisions of this bill can still apply. That is a very serious matter. I am also concerned about the impact detention has on children. I remind members that this is precisely why we have the Young Offenders Act, which recognises that special considerations must be given to children who offend or who are accused of offending.
The amendment will retain the current provision for matters that the court must consider when the accused is a child, but it adds a new matter to be observed; that is, the principle contained in the Young Offenders Act—detaining a young person in custody before or after conviction should only be used as a last resort and, if required, for only as short a time as necessary. Like the other provision, the safety of the community will continue to be the overriding principle. In that sense, it does not weaken the provision, if that is indeed the concern. The provision is there because community safety is still the principal regard. However, it seeks to emphasise the special needs of children.
Members may be in receipt, as I am, of a letter from the Commissioner for Children and Young People about this bill. As the provisions relate specifically to the amendment I have proposed, it is important that I read what the Commissioner for Children and Young People has said. Then I will seek to table his letter. The Commissioner for Children and Young People said —
As Commissioner for Children and Young People in Western Australia I have a statutory responsibility under the Commissioner for Children and Young People Act 2006 (WA) to monitor and review draft laws affecting the wellbeing of children and young people under the age of 18 years. In undertaking these responsibilities, I must give priority to Aboriginal and Torres Strait Islander children and young people and those who are vulnerable or disadvantaged for any reason. I must also have regard for the United Nations Convention on the Rights of the Child (the UNCRC). It is within the context of my role as an independent, statutory office and the functions outlined above that I provide the following comments in relation to the Bail Amendment (Persons Linked to Terrorism) Bill 2018 (the Bill).
I note the decision made by the Council of Australian Governments at its 9 June 2017 meeting for jurisdictions to implement legislation ensuring a national presumption against bail for people who have links to terrorism. I am supportive of efforts by the Western Australian Parliament to protect children and young people, and the community more broadly, from the effects of terrorism and the risks posed by terrorists.
Western Australia’s obligations under Article 37 the UNCRC requires the State Government to ensure the detention or imprisonment of children or young people is only used as a measure of last resort and for the shortest appropriate period of time. This requirement has been given effect under Western Australian law through section 7(h) of the Young Offenders Act 1994. Article 40 of the UNCRC goes on to require the recognition of the right of every child or young person accused of, or recognised as having committed, an offence to be treated in a manner that takes into account their age and the desirability of promoting their reintegration into a constructive role within society.
As you will be aware, Clause 12 of the Bill proposes to insert a presumption against the granting of bail into the Bail Act where the accused is linked to terrorism. Under section 3 of the Bail Act, the term ‘accused’ does not differentiate between an accused child or young person and an accused adult. As a result, the proposed presumption against bail would also apply to persons under the age of 18 if enacted in its current form. I am concerned the effect of this would be to remove the discretion necessary for judicial officers to act in accordance with the UNCRC and the Young Offenders Act when determining the outcome of a bail application for a child or young person linked to terrorism, regardless of their alleged offence or their best interests.
Regarding this issue, I wish to draw your attention to submissions made by the Law Council of Australia, the Australian Human Rights Commission, the Victorian Commissioner for Children and Young People, Legal Aid New South Wales and the Queensland Bar Association to the Review of the Prosecution and Sentencing of Children for Commonwealth Terrorist Offences conducted by the Independent National Security Legislation Monitor during 2018. In response to concerns similar to those described above, each of these bodies recommended the Commonwealth Government exclude children and young people from the presumption against bail currently contained within section 15AA of the Crimes Act 1914 (Cth).
It is my view that the Bill should be amended to exclude children and young people from the proposed presumption against bail and require judicial officers to consider section 7(h) of the Young Offenders Act when bail is sought in the circumstances envisioned by the Bill. This will provide judicial officers with the discretion to grant or deny bail applications for children and young people based on what is in the best interests of the child as well as what is necessary to protect the community from the risk of terrorism.
I ask that you consider these matters as you deliberate the content of the Bill. I would be happy to discuss any aspects of my comments with you in further detail if required.
Yours sincerely,
COLIN PETTIT
Commissioner for Children and Young People WA
By commenting on this, our children’s commissioner is doing exactly what he is statutorily supposed to do. I note that the commissioner has recommended going further than I propose; although, to be very clear, the Greens and I absolutely agree with the comments that he has made. In putting forward this amendment I wanted to at least make the point that we need to remember that we have the Young Offenders Act and that children need to be treated differently under the law when this bill in front of us fails to do that. I have not gone as far as the commissioner recommends, although I think that that would not be a bad idea.
I also point out that we received a subsequent communication from the Commissioner for Children and Young People. It was tabled today, Tuesday, 2 April, and states —
Dear Honourable Member
A number of members have sought clarification about the intent of the letter I sent last week regarding the Bail Amendment (Persons Linked to Terrorism) Bill 2018. I acknowledge the proposed section 3E(4) states the judicial officer is not limited to considering the matters listed in subclause (3) when determining a bail application.
The intent of my letter was to ensure that section 7(h) of the Young Offenders Act is able to be a specific consideration of judicial officers regarding children and young people to strengthen the intent of this bill.
That is exactly what the amendment in front of us intends to do. It is just to try to ensure that it is given additional prominence so that when all things are considered, we remember that children and young people should be treated as the young people they are when facing the courts.
Comments from Hon Sue Ellery
Hon ALISON XAMON: As with many of the other provisions in this bill, this is going to be an area on which the government and the Greens will just have to agree to disagree. I am still strongly of the view that it is important to respect the provisions of the Young Offenders Act, and that it be given higher prominence. In any event, I seek leave to table the two documents I previously made reference to—the letter circulated by the Commissioner for Children and Young People and the subsequent email, also circulated today, 2 April 2019.
Leave granted. [See paper 2545.]
Comments and speeches from various members
Amendment put and negatived.
Hon ALISON XAMON: I have a question about proposed clause 3E(2)(a) at line 31 on page 8, where it refers to “exceptional reasons”. I note that the federal legislation describes what those exceptional reasons are, but this Bail Amendment (Persons Linked to Terrorism) Bill does not. I want to get on the record, please, what would be considered to be exceptional reasons for why an accused might not be kept in custody.
Comments from Hon Sue Ellery
Hon ALISON XAMON: My concern is that none of those reasons strike me as being particularly exceptional. They would be the reasons that would normally apply when consideration of bail is being given. I think it is concerning that this chamber is unable to give any particular guidance to anyone who is attempting to interpret this at some point in the future. As I mentioned, these issues are not exceptional; these are the sorts of issues that a court will take into account in the course of considering bail anyway.
Clause put and passed. Title put and passed.
Report
Bill reported, with amendments, and, by leave, the report adopted.
As to Third Reading — Standing Orders Suspension — Motion
On motion without notice by Hon Sue Ellery (Leader of the House), resolved with an absolute majority — That so much of standing orders be suspended so as to enable the bill to be read a third time forthwith.
Third Reading
Bill read a third time, on motion by Hon Sue Ellery (Leader of the House), and returned to the Assembly with amendments.