Resumed from an earlier stage of the sitting. The Deputy Chair of Committees (Hon Dr Steve Thomas) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.

Clause 1: Short title —

Committee was interrupted after the clause had been partly considered.

Comments and speeches from various members

Hon ALISON XAMON: I just want to ask a quick question. We have talked about how this bill has competing tensions in trying to strike a balance. The question I have is about the issue of the options available to the judiciary. I want to understand whether it will be the case under this bill that when someone is on trial for an actual terrorism charge, the court will have available to it more options than are currently available to people trying to apply for bail for non-terrorism charges. That is in relation to being able to have access to evidence and all the provisions of the rule of law that are effectively undermined within the scope of this bill as it is currently drafted. Will it be the case that when someone is on trial facing actual terrorism charges, even if they are only making application for bail for non-terrorism charges, they will be afforded more rights than this bill would otherwise provide?

Hon SUE ELLERY: I make this point: this is about bail. The provisions before us have nothing to do with anything else about how a matter might be dealt with in a court. The Bail Act changes in the bill before us will have no impact on the progress of a usual criminal trial.

Hon ALISON XAMON: I am trying to ascertain, for the record, that there will be fewer rights afforded to a defendant under this bill than would be available to them if they were to go through ordinary trial proceedings.

Hon SUE ELLERY: That is the member’s way of characterising it. I make the point that the policy of the bill, which has been set, has already determined that terrorism-linked matters in respect of bail will be treated differently, or will have the capacity to be treated differently, under the changes proposed in the bill before us. If the member chooses to interpret that in the language she just used, I will leave it to her to draw that conclusion. There is a difference, and the difference is that we are dealing with terrorism.

Hon ALISON XAMON: I want to get this clearly on the record because I am aware that, when we talk about application for bail, the provisions of this bill can also cover people who are facing non–terrorism related charges. I make this point because the minister has confirmed my concern that we have a potentially greater denial of procedural fairness, if you like, for someone facing bail on non-terrorism charges than for someone who is facing trial for actual terrorism-related charges.

Clause put and passed. Clause 2: Commencement —

Hon MICHAEL MISCHIN: Again, the commencement clause provides that the formal parts of the bill will come into effect —

... on the day on which this Act receives the Royal Assent;

(b) the rest of the Act—on a day fixed by proclamation.

Comments and speeches from various members

Clause put and passed.
Clause 3 put and passed.
Clause 4: Section 3 amended —

Hon MICHAEL MISCHIN: My question concerns the definition of “person linked to terrorism”, which means a person who —

(a) is charged with, or has been convicted of, a terrorism offence; or

(b) is the subject of an interim control order or confirmed control order, or has been the subject of a confirmed control order within the last 10 years;

Comments and speeches from various members

Clause put and passed.

Clauses 5 to 7 put and passed.

Clause 8: Section 16B inserted —

Hon MICHAEL MISCHIN: Proposed section 16B, “Person linked to terrorism” is one of the operative, central provisions of the bill. Proposed subsection (1) provides —

This section applies if a person linked to terrorism —

That casts us back to the definitions in clause 4 —

is in custody —

(a) awaiting an appearance in court before conviction for an offence; or

(b) waiting to be sentenced or otherwise dealt with for an offence of which the person has been convicted.

Comments and speeches from various members

Clause put and passed.
Clauses 9 and 10 put and passed.

Clause 11: Section 66C inserted —

Hon ALISON XAMON: I draw members’ attention to the amendment on the supplementary notice paper, so that

we can begin discussion. I would like to move the amendment standing in my name. I move —

Page 8, line 3 — To delete the line.

This amendment seeks to mandate the judicial officer disclosing terrorist intelligence information to the Attorney General. Currently, the way the bill is drafted, the judicial officer will have discretion to give this information to the Attorney General, but it will not be mandated. The aim of this amendment is to ensure that the Attorney General has the full information of the content of terrorist intelligence information that is attracting the secrecy provision so that they can consider the use to which that provision is being put. It will not specifically require the judicial officer to also advise what, if any, opportunity defence has had to challenge or to contextualise the information, but it is a flag that enables the Attorney General to ask questions, if needed.

This is a particularly important amendment to contemplate. We are talking about removing judicial discretion and the capacity for defendants to have the full benefits of the rule of law in court proceedings. I would have thought at the very least that it would be important to enable the person who is effectively our most senior legal person in this state, the Attorney General, to have the bare minimum of information to know when these provisions are being exercised. I will be talking about the next amendment in a moment, to point out that it is not unusual for this sort of information to be provided to the Attorney General; it would absolutely not interfere with the conduct of the courts. What will interfere with the conduct of courts is this bill, which seeks to remove judicial discretion.

Although I have made it quite clear that I have concerns about the bill as a whole, in trying to mitigate some of the worst excesses, this amendment is a useful mechanism to at least ensure that there is some capacity for people to be aware of how it will be exercised and what is occurring.

Hon SUE ELLERY: The government will not be supporting this amendment.

Comments and speeches from various members

Hon ALISON XAMON: Of course, that argument would hold more water if this bill was not attempting to interfere with the activities of the judiciary to such an extent. I remind members that this bill will actually remove judicial discretion. When judicial discretion is removed, it is expected that we understand its implications. Clearly, what has been contemplated in the original drafting of the bill is that there are circumstances in which it will be considered advantageous for the Attorney General to know what has gone on. I have more to say, but my first question is: can the minister please outline those circumstances that were contemplated in which it is potentially in the interests of the Attorney General to know what is happening in the proceedings of this court because, clearly, that has been considered?

Hon SUE ELLERY: I am not in a position to give an exact example and I will not go down the path of contemplating hypotheticals. The purpose of having the language drafted in the way that it is drafted is to give the court discretion if the judicial officer is of the view that the matter that has been revealed is of serious concern or a national security issue that the Attorney General, the state, the executive and the government of the day needs to know about. This gives discretion to the court to reveal that information to the Attorney General. With the greatest of respect to the honourable member’s amendment, I am not in a position to go down the path of trying to imagine hypothetical cases in which the court might exercise this.

Hon ALISON XAMON: The reason I ask the question is that, clearly, it has been contemplated that there is potentially a role for the Attorney General to be privy to this information. It is not beyond the realms of possibility to consider that perhaps there are situations in which it is downright desirable to make the Attorney General aware. The advantage of the amendment that I have proposed is that it would ensure that the Attorney General is given the opportunity to see the broad scope by which this particular provision may be applied.

It could be the case that any one individual court would rarely deal with these sorts of matters, but this ensures that our senior law officer at least has some idea of how this is being employed more broadly. It is the case that we do not have other mechanisms by which the government can be made aware of the way in which this imposed change to the courts’ proceedings is being implemented in practice. I am quite comfortable with what I have drafted, so I do not feel the need to contemplate any other measures, although I note the reluctance from government to look at other ways in which this could be accomplished. As such, I think it is a really important safeguard to ensure that someone, somewhere is able to have at least the broadest of overviews as to how these particular provisions are being employed. I think it is of keen public importance. I, for one, would like to be assured that there are some mechanisms by which oversight is being achieved.

Comments and speeches from various members

Amendment put and negatived.
Progress reported and leave granted to sit again, on motion by Hon Sue Ellery (Leader of the House).


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