Senate Legal and Constitutional Affairs Legislation Committee, , 2:55:57 to 3:16:33
Senators inquire about national terrorism threat levels and the jurisdictional consistency of new hate crime and vilification legislation.
Topics: National security, Hate speech laws, Sentencing
Speakers: Hon Bridget McKenzie, Stephanie Foster PSM, Hamish Hansford, Hon Murray Watt, Malcolm Roberts, Alex Engel, Jana Stewart
>> Thank you, Chair. Thank you for appearing again today. Good morning. >> Good morning. >> Nice, bright, lively welcome. >> Thanks, Senator. What is the risk? These are Department of Home Affairs questions. What is the risk to Australian soil since the Bondi atrocity at the hands of Islamic terrorists of Middle Eastern extraction and the failed
bombing attempt by homegrown white supremacist? >> So Senator um you you're absolutely right that that is
portfolio. Um, but the the threat assessments are actually done by AIO and you'll have Director General Burgess appearing later today. >> I'm going to ask him similar questions. >> Isn't it pertinent that you should know
as well? >> Senator, um,
that's a specific role assigned to the Australian Security Intelligence Organization. Do you interact with Azio
>> We do, Senator, but in terms of actually formulating that assessment that's a role that belongs with them. >> Do you I'm not asking you whether you formulate the role. Thank you for explaining OIO does that. I thought they did that. Um what I mean is what I'm asking is do you know it? I'm going to ask you questions about your department's response based on the level of threat. So, Senator, um I I'm hesitating because um an amount of the uh assessment work is um classified in nature and so I'll need to take on notice before I answer any questions about my state of knowledge what the classification level of the material um that I have. Um >> I just want to know what whether or not you your department knows what the level of risk is right now. What's the what's the rating? >> So So Senator, that's the the question I'm being cautious of because when um agencies make assessments about threat um then that can often be drawn from classified sources. Um but I think you know it is public uh it's on the public
record that the director general raised the threat level for terrorism to probable on the 5th of August 2024.
That's the national terrorism threat level which as he explains means um a more than 50% chance of that um occurring. >> I'll ask him this question as well.
the rating has to be increased immediately after an attack. Has it been increased? What I'm getting to secretary is what are you doing differently now compared with before Bondi? So, Senator, um I
think that again publicly the director general has affirmed that the threat, the national terrorism threat level um on the basis of information available to him uh change that at the time. In terms of what we collectively have done since Bondi,
um you'll see um a very significant range of um of activities um obviously uh some of which you participated in in the debates on um the bills um which were passed uh uh in uh a couple of
weeks ago.
>> How safe are we now living in Australia?
Senator, um I can only um give you my previous answer, which is it is the director general of Azio who makes assessments of Australia's national terrorism threat level and he will be appearing later today, but I've given you the publicly um stated information to date. U Mr. Hansford's just reminded me um in in terms of you know another very significant um action since Bondi is the allocation of $102 million investment in security for Jewish um institutions um places
Do you do anything to uh educate everyday Australians, the citizens of Australia as to what we can do to enhance their safety? >> So, Senator, um we um as in the Commonwealth has a range of actions including information on the national security website um and a range of information that can help people be
Australia. We also play a a role a leadership role and I co-chair the
Australian New Zealand counterterrorism um committee that has met um post Bondi a number of times to talk about how do we prepare um knowing what we know about Bondi from the law enforcement and policy community across Australia. We we've um had discussions around how law enforcement and policy agencies can respond and learn from what's happened
in Bondi cognizant of the inquiries that
>> Doesn't sound very concrete to me. What about things like tightening up immigration standards? Who we let into the country? Well, Senator Roberts, we
recently passed some laws to strengthen the minister's powers to cancel visas um of people promoting hate and your party voted against those laws. Minister. That's because of other things that we did not like in the bill. >> Would you?
>> But you voted against what you're asking for. I we voted against the other provisions of your bill >> which were to make it easier to um ban association with neo-Nazis. Was it that bit or >> that you didn't like or >> what were the >> minister? We could talk for for hours about the specific >> the problem the problem for One Nation for you to answer my question for me. >> The problem with One Nation is that you
call for things to happen and then you vote against them. You've done that now on >> we do not we do not vote against tight immigration against same job same pay when you >> minister will you increase the immigration cheaper medicines when you want things done for poorer Australians like >> at some point Australians are going to see through one nation and see that you make promises that you don't keep when you come to CRA and you did it again recently by calling for hate preachers to be banned and restricted and then voting against laws that would do that. You voted you called for migration screening and then you voted against it. So I'll leave it to Australians to,
does rather than what One Nation says. >> Minister, do you think Australians are fools and not seeing what you're doing right now?
>> We've asked for tighter immigration
standards. Will you answer the question? Will you provide tighter immigration
We just did that and you voted against it. >> That's because of other things in your bill. >> But we did what you will you >> what you're asking for and you voted against it. vote against the things that you say need to be done >> and we're on to you. We're on to you. >> Well, we're happy to leave it in the >> and the Australian people over time will be on to you. Will you call out ideologies that promote terrorism?
>> We've done that and we just >> took a long to call out. >> We've done that and we've gone more than just call it out. We've passed laws. >> We just passed laws. We don't just call things out. We pass laws to restrict hate speech and hate preachers. You vote against those laws. >> Minister, there was only one party calling out ideological Islam. That was us. until the Bondi attack and all of a sudden we got more >> a a that's not true. There is a long
series of statements from prime minister there is a long series of statements from the prime minister and ministers in of the hate speech that we've seen in the community whether it be from uh Islamic preachers or white supremacists. statements but we don't just call things out when we come to CRA. We pass laws to restrict that kind of activity. >> So I invite you to work with the government to restrict that kind of
activity rather than just pretend that you care about these issues. >> Thank you, Senator Roberts. I need to rotate the call. >> Secretary, do you have adequate resources to do what needs to be done? >> Senator, um the Department of Home Affairs has a very substantial budget and staffing level. um and I am able to deploy those um resources to the government's priorities. >> Thank you. >> Thank you, Senator Roberts. Senator Shoebridge.
>> Uh thanks, Chair. The um
secretary, obviously through you, the minister has now been given a significant role in working out which which groups should be prescribed and made criminal and um which groups the membership of which should be made serious criminal offenses. Uh, are you able to explain um the the the different um legal tests that are set out in the legislation um uh that could lead to the minister prescribing groups and I'm I'm asking this having asked the attorney general about one particular provision um which ropes in seven different state
and territory laws said that actually that applies
the different jurisdictions. >> They said a bit >> uh well well I could I could tend to the entire transcript but they said that the
Victorian provisions apply on their
terms primarily in Victoria. The New South Wales provisions apply on their of them have modest application outside of their states where the conduct impacts on that state or territory, but effectively seven different tests. Um uh first of all, do you share the the the attorney general's
different applications and different country? So, Senator, you're right to identify um that the legislation is the responsibility of Attorney General's Department um and they are the ones who
are um uh appropriate to make comment to legislation. Um Home Affairs is
responsible for the um listings regime and Mr. Hansford would be very happy to
response to your first question.
>> Certainly. So, um, if you wanted me to take you Senator through how to how the legislation works in terms of listing a
prohibited hate group. >> Yeah. Yes, indeed. But if we could for the moment concentrate on the minister's role in that and what what the thresholds for the minister and and if you could address >> that in the course of that the seven
>> Sure. Well, the the first um trigger though has to come from the director general of security who who can provide the minister written advice recommending that an organization should be prohibited hate group. the minister can't act unless um he or she is in receipt of that advice and there's a number of different tests for the director general of security there which principally which relate to their um
the minister as the >> just I mean because it's quite long and complex uh Mr. Hansford, maybe we can do
it in in chunks. Can the minister request that advice from Azio? Is there such advice from Azio? >> Um the the legislation provides that the minister can't act unless the director general of security provides that written advice. There's nothing in the legislation about the minister requesting. So, so the minister may request the advice and get the advice from Azio or AIO of their own motion may provide the advice. Is that the case? >> Uh, that's my understanding. Yes, Senator. >> So, that's the that's the trigger if you like for the minister's powers to decide whether or not to um um make an
organization illegal and make membership of an organization illegal. Well, the the minister can't act unless um he or she is in receipt of that advice from the director general. Yes, sir. >> All right. And then the minister then bill um to determine
the minister's mind that would justify the the listing the prescription. what what are the considerations the different considerations the minister would could have regard to uh or or must have regard to. So the um the minister as the AFP minister must be satisfied on reasonable grounds that the organization has engaged in, prepared or planned to engage in or assisted the engagement in conduct constituting a hate crime or has advocated engaging in conduct constituting a hate crime other code. and specifying the organization as necessary to protect the Australian community or a part of the Australian community from social, economic, um, psychological or physical harm or the promotion of violence. And then the act
out, there are links to other offenses. and then the the AFP minister must
consider making a regulation. >> All right. Now on the definition of hate crime um it's contained in 114 A3 um which references a number of federal provisions which apply across uniformly across the country but it then references um conduct that would constitute an offense against a provision of a state or territory and it lists those provisions in in subsection three. Um, they are provisions in New South Wales Crimes Act, Victorian Crimes Act, Queensland Criminal Code, WA Criminal Code, the South Australia Racial Vilification Act, and the ACT Criminal Code. If we rather than go through each of them, we'll use the Victorian examples. Um, there's a number of
ridicule. Now, if you're in WA
able to judge someone's conduct in WA against the provisions of the Victorian Crimes Act section 195N. >> Uh thanks Senator Brookard again, General Counsel. Um these provisions were put in by the Attorney General's Department, so they are best placed to discuss them. But it is my understanding that it would depend on the territorial application of the state offense as to whether or not a Victorian offense could apply to WA conduct. >> So the same conduct in WA directed against individuals in WA wouldn't meet the test. Um sorry, I'll start again. Um the Victorian provision says has extr territoriality
conduct outside of Victoria specifically identifies groups or
individuals in Victoria. Um but otherwise it's about conduct in Victoria amongst Victorians. That would therefore mean that somebody
could undertake certain conduct in Victoria, which might trigger the definition of a hate crime. But if the exact same
conduct was undertaken in WA, it would
not trigger a hate crime because it doesn't meet, for example, the severe
ridicule test in in in Victoria. That's that's the result, isn't it? Senator um Miss Hartigan was clear at the start of her answer that this um element of the
responsibility of attorney general's
department. Um so detailed questions of general's department. You see, I I would I would agree with that answer if I if it wasn't for the fact that it's your minister who needs to interpret this to determine whether or not an entity should be criminalized. And so if your department doesn't know these answers, then how can your department brief the minister? >> I don't think anyone has I don't think anyone has said that they don't know the answers. That's your characterization of this. What we're saying is that questions regarding particular departments and their responsibility should go to those departments. >> No, this is the home affairs minister's responsibility to understand whether or not the hate crime offenses have been breached. And I know it's difficult and I know it's complex, but whether or not Palestinian groups
get made unlawful, whether or not people are facing 15 years in jail, the community is asking these questions. And if the department responsible for managing it can't answer it, well, is
there any wonder there's such fear about
how these these provisions are going to be applied across the country? Senator,
we would get legal advice on the application of the provisions of the legislation. Um the the
decision about whether or not something
constitutes a hate crime uh is not um uh a legal interpretation to put before the minister. >> Thank you Senator Shoebridge. Senator Duniam. >> Thanks Chair. Um, if I can just go to and it might sort of relate to some of the questions that Senator Roberts was asking about the the road the events