(Debate on Terrorism (Police Powers) Amendment (Investigative Detention) Bill, 10 May 2016, Legislative Assembly, NSW Parliament)

Terrorism is a serious global issue: instability in faraway nations has been connected with horror, injury and death – sometimes on a large scale – in otherwise peaceful places, including here in Sydney.

I agree that governments cannot be complacent and must address terrorism as a priority, and I acknowledge the community work the government is doing to fight extremism.

But I don’t believe that boosting police powers to the point where 14 year olds can be arrested, detained and questioned for up to 14 days without charge will help reduce terror and extremism.

The Terrorism (Police Powers) Amendment (Investigative Detention) Bill will allow police to detain and question someone as young as 14 if they suspect on reasonable grounds that the person has committed, is preparing to commit, or possesses an item that could be used in, a terrorist act. Initial detention can last for up to four days without any oversight, and with the approval of an eligible judge, for up to 14 days.

I oppose inclusion of children in this framework. The law has always upheld a protective attitude towards children. While rare, children’s involvement in atrocities is not a new thing and the law has always treated them in a way that recognises the long term psychological impact the criminal justice system could have on children and the different vulnerability and motives children have to adults. There are similar arguments for people who suffer from cognitive impairment, and no provisions have been made to protect them.

I do not support preventative detention without charge – healthy democracies allow for arrest based on evidence that could stand up in court with accused persons being brought before the courts as quickly as possible. This bill goes beyond detention based on prevention to also include for the purpose of police investigation.

Arrest and detention without charge, particularly for a period of up to 14 days, likely constitutes arbitrary detention.

I am not satisfied that the proposed safeguards and oversight are adequate to prevent misuse.

The scope of who could be detained is wide. Police need only suspect that a terrorist act ‘could’ occur, based on ‘reasonable grounds to suspect’. Satisfying reasonable grounds to suspect that something could occur is a very low threshold to achieve. It would be more appropriate if the bill required reasonable grounds to ‘believe’ that a terrorism act would ‘likely’ occur.

Furthermore, for a suspected imminent terrorist act, police don’t even have to know the identity of the person who will commit the act or the place or time of the act.

Even possessing an item in connection with a potential future or past act could make someone a terrorism suspect for the purpose of this bill, which means someone could be arrested and subjected to prolonged questioning because of ownership of a computer or mobile phone used, or to be used, in connection with a terrorism act by another person such as a family member.

Any police officer can use these new powers, not just a senior police officer.

There is no genuine judicial oversight because an eligible judge, who will be able to approve detention beyond four days or prevent contact between a suspect and a support person or their lawyer, would not be acting as an independent arbitrator of the law, but as an arm of government.

I am very concerned that police will be able to monitor contact between a suspect and their family or support persons without a warrant. Police surveillance should only be permitted with the court oversight of a warrant. Alarmingly it is unclear whether suspects will be notified.

An eligible judge will also be able to prevent a suspect from using a particular lawyer and deny contact between a suspect and their family or support persons. The potential adverse impact on children, who I remind the house could be subject to imprisonment and prolonged questioning, is especially concerning.

The bill provides for breaks during questioning with at least eight hours of continuous rest in any 24-hour period. This allows for 16 hours of interrogation a day for up to 14 days without charge, which could result in significant distress of a suspect and could be seen as coercion to respond in a certain way. Furthermore, a senior police officer will have the authority to allow whatever questioning he or she determines as necessary and reasonable because of the exceptional circumstances of the case. This could mean the loss of breaks and rest. How reliable will responses be under such conditions?

An eligible judge will be able to approve withholding the information that forms the basis of detention from a suspect, hindering the suspect’s ability to challenge their detention.

We have not been told why our existing laws do not suffice other than that police see gaps. Police can charge someone if they have evidence that the person has committed a terrorist act or is plotting one.

When will it stop?

I note the federal justice minister, Michael Keenan has said the Australian Government is open to extending control orders to children as young as 12!

While this bill responds to last year’s terrorist attack in which a 15-year old boy shot and killed a police force employee, NSW Police Commissioner Andrew Scipione has said that police had no prior information that the boy posed “this type of threat”. Had these powers been in place, it is unlikely that they would have prevented that attack.

Terrorism is challenging but our response should not reduce the very civil liberties that distinguish our society from the places in the world that are breeding global terrorism.

I don’t believe this bill will make us any safer but I am concerned that it risks creating fear, resentment and alienation within a cohort of people who may already not trust authority, at a time when we should be promoting social cohesion.

The government did not consult with legal professionals or civil rights advocates on this legislation and it should have left it on the table longer than the minimum five days because it is a complex bill with major implications on our justice system. Members should have been given the opportunity to conduct useful assessment and consultation.

The bill is reactive and dangerous and I cannot support it.