Resumed from 17 September.
Comments and speeches from various members
Question put and passed. Bill read a second time.
The Deputy Chair of Committees (Hon Martin Aldridge) in the chair; Hon Stephen Dawson (Minister for Environment) in charge of the bill.
Clause 1: Short title —
Hon ALISON XAMON: As I indicated, I did not get the opportunity to contribute to the second reading debate because, unfortunately, I have not had a chance all day to leave the chamber to grab the file pertaining to this bill from the office. That is nobody’s fault in this place; I am just explaining that that is one of the reasons I was unable to make a contribution.
I indicate from the outset that the Greens have a number of concerns about this bill and there are a series of questions I want to ask about it. I am happy to take the minister’s guidance on whether it is preferable to effectively raise the series of questions I have simply within clause 1, to get that on the record and leave it like that, or for me to go through each clause. As members know, it is never my intention to unnecessarily hold up anything or obfuscate, but, from the outset, I ask the minister what is the preferred process to deal with the issues.
Hon STEPHEN DAWSON: With the indulgence of the chamber, I would be very happy for the member to ask those questions or indeed make those points at clause 1, and I will provide answers there. If we get bogged down at some stage, we might move on, but I do not think we will, so fire away.
Hon ALISON XAMON: Thank you. I have a number of notes here, but to start with, I want to flesh out this issue of the religious or spiritual adviser. Proposed section 45(12) states —
The police officer who is detaining the detainee must, as far as reasonably practicable, assist the detainee in exercising the detainee’s entitlement ...
I want a bit of an explanation of what would happen if a detainee does not have any particular religious or spiritual beliefs. I recognise that the purpose of this provision is effectively to be able to provide solace to somebody who is in an extraordinary position and may well need support or assistance. For example, could someone potentially provide mental health support if someone was not coping? Is that the sort of thing that would be contemplated? I am concerned that we are talking about people being held virtually incommunicado who may be innocent—that is a fact—with no involvement in terrorism. I know that if I were in that situation, I would be beside myself. I would like the minister to please give an indication of how broadly it is intended that this provision will be read and whether it will apply only to mainstream religions.
Hon STEPHEN DAWSON: Under section 39 of the act, police have a specific duty to treat detainees with humanity and respect for human dignity. The act expressly confers a right on the Inspector of Custodial Services to review a detainee’s detention under a preventative detention order to determine whether that specific duty is being met. The inspector is able to give advice or make recommendations to the Commissioner of Police or the senior police officer overseeing the PDO. It is possible that psychological or psychiatric services could be made available under the general duty of care that police owe to persons in its custody, and this would need to be balanced against the security issues that surround the detention of a person under a PDO. It has not been envisaged that a mental health professional could go in place of a spiritual or religious adviser. This provision, I understand, has been copied—if I can use that word—from New South Wales legislation. We have taken on board what New South Wales does and have proposed to put it in the bill now, but it would not allow for a psychologist to be used in place of a religious or spiritual adviser. As I said, the police could well seek advice and speak to mental health professionals, but, ordinarily, a detainee would not have that entitlement.
Hon ALISON XAMON: I suppose the concern that I now have is that it leaves people who do not have any religious or spiritual belief without anybody to provide some sort of solace. That coupled with the fact that currently under the act, a detainee’s contact with the outside world is already very limited—in fact, they can contact only one family member or person that the detainee lives with or their employer or one business partner or one employee or someone else as agreed to by the detaining police officer. We are still potentially leaving people who are still in an extraordinary vulnerable position and—I remind members—potentially innocent without any form of solace. Can I just confirm that, in terms of the way the minister described the access to mental health services, it sounds as though it would be if there was a demonstrable concern for that person’s mental health, rather than an opportunity to provide someone who is obviously approved and trustworthy, to console the person who is in that situation.
Hon STEPHEN DAWSON: The answer to that is yes.
Hon ALISON XAMON: The bill specifies what assistance the detaining police officer has to provide to detainees who are aged under 18 years or who are incapable of managing their own affairs. It would be easy to see that this would be a significant category. In fact, in the past, we have seen that people who have been caught up with extremist groups, unfortunately, tend to be very young and impressionable or have limited mental capacity. I note that in the bill, the detaining police officer must, as far as reasonably practical, assist the detainee to have contact with people as permitted by the act, and give the detainee reasonable assistance to locate those people. If the person with whom the detainee seeks contact is not acceptable, the police officer must provide reasons why and give the detainee an opportunity to nominate someone else. The police officer also needs to offer contact with another person who was acceptable to the police officer and who is experienced in working with young people or incapable people as appropriate. Can the minister please indicate who is likely to be deemed a category of person who is experienced in working with young people or incapable people? Who is it? What entities, what statutory authorities or what people can a police officer draw to provide assistance to these vulnerable people, who potentially have a limited capacity?
Hon STEPHEN DAWSON: I am advised that really it is just people who have experience in dealing with young people; for example, it could be youth workers, youth councillors or teachers. Generally, it would be somebody who has experience in working with young people, and it would be up to the senior police officer who is overseeing the case to make a decision on who that would be. It is quite broad.
Hon ALISON XAMON: I note that the regulations can also specify other groups of people who may be appropriate—for example, people who are experienced in working with culturally and linguistically diverse communities, Aboriginal and Torres Strait Islander communities or people with a disability. Is there any chance in order to be able to give guidance to the police officers who are also working with children that it is likely to give some guidance and stipulate the classes of people who might be able to be drawn on to assist as appropriate with these vulnerable people?
Hon STEPHEN DAWSON: Proposed new section 45(14) provides the ability for additional classes of persons who may be considered appropriate. The explanatory memorandum outlines that suitable categories for prescription could include persons with experience in working with culturally and linguistically diverse communities or with experience in working with Aboriginal and Torres Strait Islander communities. The process of drafting regulations will commence soon after the bill has passed and receives royal assent. I am advised that it is hoped that these regulations will be in place before the end of this year.
Hon ALISON XAMON: That was my next question, actually: assuming this bill is passed, when are the regulations likely to be written? The minister says that he is hoping they will be done by the end of 2019. I thank the minister.
I am just trying to pick up the other issues that I particularly wanted to unpick. Obviously, the key concern about this bill is that we are trying to ensure protection from terrorist threat, which is a big deal, but also to make sure that we have the balance with the protection of human rights. I think the central question in this is always whether we have that balance right. This is always the issue that the Greens bring to this chamber when we are talking about terrorism bills, because, obviously, we are dealing with extraordinarily serious matters here, but when injustices occur, they can be absolutely devastating for those people involved. We have seen that in the past within Australia, unfortunately, with people who have been accused of terrorist activity and have found themselves subject to the extraordinary detention provisions, and have subsequently been found to be innocent. That, of course, is always of grave concern. That principally goes to the core issue that the Greens always bring to the debate on terrorism: have we got the balance right? This bill will create quite an extraordinary change in the threshold for preventative detention orders. At the moment, it is simply if a terrorist act is imminent and expected to occur in any event; now, we are changing the threshold to being capable of being carried out and could occur sometime within the next 14 days. I am sure that the minister would agree that that changes the threshold quite significantly, notwithstanding that this bill is trying to bring these laws in line with laws that exist in other countries. I note also that even among the Australian jurisdictions that have agreed to enact preventative detention orders, there are still quite a number of differences. For example, I note that the commonwealth version allows detention for 48 hours, whereas the states and territories allow up to 14 days, and that the Australian Capital Territory version contains two more safeguards than the other Australian versions, including a requirement that a preventative detention order must be the least restrictive option that becomes available. It also states that there needs to be a prohibition on detaining children under the age of 18. I would like to know, please, why the decision has been made to include children, and also not to go with the least restrictive option.
Hon STEPHEN DAWSON: I will say a few things. The honourable member asked a question at the end, but she also made some points in her contribution. The legislation before us contemplates serious matters. If I am correct, I think Hon Michael Mischin said in his second reading contribution on the bill that we hope these powers never need to be used. I think he said something along the lines of it is an insurance policy. We hope that the provisions in this bill do not need to be used, and we believe that we have got the balance right. The member used the word “children”. Young people aged 16 years and above will be captured by this bill. The reason is that we are aware that there have been occasions when 16 and 17-year-olds have been recruited by terrorist organisations, if I can call them that, to undertake acts of terrorism. Obviously, though, if a 16 or 17-year-old were to be detained, there are special provisions in the legislation that are separate to the provisions that apply to adults aged 18 years and above, so we have extra protections, I guess, in the legislation.
I will briefly mention section 39 of the act, which is titled “Humane treatment of detainee”. I will just put that on the record. The section states —
(1) The detainee—
(a) must be treated with humanity and with respect for human dignity; and
(b) must not be subjected to cruel, inhuman or degrading treatment, by anyone exercising authority under the PDO or implementing or enforcing the PDO.
(2) The Inspector of Custodial Services may, at anytime, review the detainee’s detention under the PDO to determine whether subsection (1) is being complied with in relation to the detainee.
(3) The Inspector of Custodial Services may, at anytime, report to—
(a) the Commissioner; and
(b) the senior police officer nominated under section 24(2) in relation to the PDO, on any matter relating to a review under subsection (2) and give advice or make recommendations as the Inspector of Custodial Services considers appropriate in relation to the matter.
(4) For the purposes of this section the Inspector of Custodial Services may exercise any power conferred by the Inspector of Custodial Services Act 2003 whether or not the place where the detainee is being detained is a place referred to in section 19 of that Act.
Hon ALISON XAMON: As I have already indicated, one of the principal concerns that the Greens have with this legislation is the change to the threshold imminence requirement in clause 5. The Greens have strong concerns about this clause because it does not just change the threshold imminence requirement. It seems that it will effectively remove the temporal safeguard from the act. We acknowledge the problem with the current wording, particularly the problem with the words “in any event”. I think it almost impossibly requires that the terrorist act is expected to occur within 14 days, regardless of any possible intervening event. Of course, we are aware that the Australian Parliamentary Joint Committee on Intelligence and Security has consistently supported the change, and we note that the police and government generally in Australia have as well. Of course, we acknowledge that section 9(1) contains additional matters that need to be established before a preventative detention order can be made, but we balance all those matters against some other matters. One of those, as I said, is that it appears that the temporal safeguard within the act will be effectively removed by clause 5. When that change was debated in the context of the commonwealth version of this legislation, the Law Council of Australia at the time proposed an alternative based on the threshold of likelihood rather than imminence. The Law Council includes members from both the Law Society of Western Australia and the Western Australian Bar Association. I note that it said that its version solved the problem with the current wording, because the requirement to show that a terrorist act is likely to occur is not the same as having to show that it would occur. It also stressed that the test should consider not only practicability, but also the intrusion on a person’s liberty and the low possibility of a terrorist act, so it was already trying to contemplate ways around the inherent tension within the act. I note that, to date, the Law Council has been unsuccessful in persuading the commonwealth, but at the briefing that I received, I asked whether the government had considered the Law Council’s likelihood test, or any model representing a middle ground between the concerns with the current version and the concerns with the proposed version. At the time, the briefers did not know. That is fair enough; we cannot expect everyone to know everything instantaneously, but the question was taken on notice. Three weeks later, I got a letter from the minister saying that the Law Council’s proposal had not been supported when it was considered at the commonwealth level. At that point the letter gave no indication that the WA government had ever considered it or any other alternative to the commonwealth version. My question is very simple: did the WA government ever consider it?
Hon STEPHEN DAWSON: The member pointed out that the Law Council of Australia had advocated a likelihood test requirement and that it had been considered. The Law Council of Australia’s proposal was considered in reviews of the commonwealth preventative detention order scheme. It was specifically considered by the Independent National Security Legislation Monitor and the commonwealth Parliamentary Joint Committee on Intelligence and Security. The LCA test was not supported by either reviewer. The INSLM concluded that the amended capability test is appropriately formulated. The parliamentary joint committee was concerned that the LCA’s proposal does not overcome the overly restrictive requirement that a terrorist act should be expected to occur within the 14-day period. This is complementary legislation, so we are seeking to have similar provisions in each of the states and territories as in the commonwealth. We have considered it and a decision was made to leave it as it is and to not take on board the views of the Law Council of Australia in this regard.
Hon ALISON XAMON: That answers my question. I had asked that, but the response I originally received was not very clear. My other genuine concern about reducing any of the safeguards in the bill is that a preventative detention order could be based on very poor quality information. As I said recently in my contribution to the debate on the Bail Amendment (Persons Linked to Terrorism) Bill 2018, information about national security is, as we know, kept so secret that checking it is very hard. Therefore, there is a concern that rumour, innuendo and double and potentially triple hearsay collected by investigators could end up taking on too much weight. At the time, I cited the example of a case in which the source of secret evidence against a party ended up being a former spouse who was concerned about a custody battle. I want to put on the record that when we talk about these extraordinary powers, the detention of people and serious deviation from the ordinary rule of law, we need to ensure that there is really sound reasoning to do that, because, as I keep saying, preventative detention orders could be inflicted on innocent people, not just terrorists. We are talking about unilateral detention and that is quite serious.
In the end, the Greens are not persuaded that clause 5 gets that balance right. In particular we are swayed against the proposed reform because the preventative detention order regime is predicated on an emergency situation when time is of the essence. It is for only that reason that police will be allowed to do administrative work outside the criminal justice system and detain possibly innocent people without charge, and also without first potentially gathering the information that the criminal justice system would normally require them to gather. I wanted to put that on the record.
Clause 6 is about identifying information. Again, the Greens are concerned about the breadth of the identifying information in clause 6 that could be used to identify a person whose name is not known. It is very important to make sure that we minimise the chance of depriving people of their liberty because of mistaken identity. I note that although the commonwealth, Queensland and Tasmania have very similar provisions contained within this bill, the Australian Capital Territory, New South Wales, Northern Territory, South Australia and Victoria all require the person’s name to be specified within that order. Instead, reference in clause 6 to a physical description of the person is extremely broad, unless the person happens to have very obvious distinguishing features. As I look around this chamber I see very few of members who could be identified as having particularly distinguishing features, except, of course, the minister! I ask the minister to confirm that if a person is detained because of a match between them and the criteria in clause 6, how urgently will the police ensure that they do further identity checks to make sure that an error has not been made and that they have not detained someone unfortunate enough to share a similar first name, last name or even a general physical description with a wanted person?
Hon STEPHEN DAWSON: Upon a person being taken into custody under a PDO, the identity checking process will be expedited and given priority over other WA Police Force identity checking requests and processes. It is expected that fingerprint checking would occur within minutes. Processing of DNA could occur within six to eight hours and will be checked against the DNA databases held across Australia in line with relevant state and territory legislation. The current act provides for a number of circumstances whereby a person could be released from detention under a PDO. These could apply in the case of mistaken identity. For example, under section 20 of the act, the issuing authority must revoke the PDO if satisfied that the grounds on which the order was made have ceased to exist; and, if that is the case, the person must be released from detention. This situation could come about as a result of the limited questioning power in section 47 of the act, or the use of the identification material contemplated in section 49 of the act may result in the police officer becoming satisfied that the person is not the person specified or identified in the order. Furthermore, the Supreme Court has the power to quash a PDO under its review function under part 3 of the act. The grounds for quashing a PDO are not qualified by the act, but could include a case of mistaken identity. Additionally, the Inspector of Custodial Services will be notified of any person in custody under a PDO and will be able to make representations to the commissioner or senior police officer overseeing the detainee’s detention. It is be expected that the Commissioner of Police would inform the minister of any occurrence of mistaken identity. Although the PDO will be in force, there will be restrictions in the act in relation to details of the PDO that will be prohibited from being disclosed. Once a PDO is no longer enforced, there will be no ongoing restrictions on disclosure of information relating to the PDO. Any person, detainee or other will be able to disclose information regarding the PDO once the PDO is no longer in force. Section 59 of the act requires a review to be undertaken to address the operation and effectiveness of the act every three years, and the operation and effectiveness of the act will include a consideration of any PDO that has been made that is subsequently discovered to involve a mistaken identity.
Hon ALISON XAMON: I also ask the minister to confirm that fingerprint checking in particular will be available within minutes, and that DNA checking is likely to occur within six to eight hours?
Hon Stephen Dawson: I have already indicated that.
Hon ALISON XAMON: I could not catch all of that.
Hon STEPHEN DAWSON: In answering that last question, I indicated that the fingerprint checking will occur within minutes and processing of DNA will occur within six to eight hours, and it will be checked against DNA databases held across Australia in line with relevant state and territory legislation.
Hon ALISON XAMON: The Greens final concern is about something that this bill conspicuously does not do; that is, address the issue of legal aid for detainees. Both the 2012 and 2016 reviews of the act by the WA police noted that equivalent legislation in New South Wales allows the Supreme Court of New South Wales to order that legal aid be provided to a detainee and requires the detaining police officer to assist the detainee to contact the Legal Aid Commission if such an order is made. I note that this came out of a recommendation made by the New South Wales Ombudsman in 2008. In the 2012 review, the police recommended that the merits of providing detainees with access to legal aid be given consideration. It is now seven years later, but I note that the government is still not considering it and there is not even a time frame for when that consideration will end. Is this something that the government is prepared to consider?
Hon STEPHEN DAWSON: This matter is under consideration at the moment. A review is required very soon. That will commence later this year or early next year, so the issue will be addressed at that time.
Progress reported and leave granted to sit again, pursuant to standing orders.