Terrorism Legislation Amendment (Police Powers and Parole) Bill 2017

Mr DAVID SHOEBRIDGE ( 15:44 ): On behalf of The Greens I oppose the Terrorism Legislation Amendment (Police Powers and Parole) Bill 2017. This is the so-called “shoot to kill” bill that the Government has introduced and that will clearly receive the support of both the Labor Party and the conservative crossbench. The Greens are not willing to surrender to the politics of fear and simply sign on to additional police powers in view of two things. The first is these laws are not required. The police already have more than adequate powers to deal with terrorism-related offences under the general law. Secondly, we oppose these laws because we oppose the politics of fear.

Sydney, New South Wales, Australia is one of the safest, most secure and successful multicultural societies on the planet. We are not made safer by the politics of fear, by engendering division or by providing powers to our police force powers that are not consistent with the open, tolerant and liberal society that The Greens believe Australia is and should remain. The bill proposes to do two things. The first is to amend the Terrorism (Police Powers) Act 2002 to provide the shoot to kill powers. In the words of the explanatory memorandum:

It amends the Terrorism (Police Powers) Act 2002 to enable the Commissioner of Police to declare an incident to which police officers are responding to be a terrorist act requiring planned and coordinated police action, and thereby authorise the use of force (including lethal force) that is reasonably necessary to defend any persons threatened by the terrorist act or to prevent or terminate their unlawful deprivation of liberty.

What the bill in fact does is allow the Commissioner of Police to declare an incident a terrorist act and it then provide that any force, lethal or otherwise, that is used by the police in accordance with what is said in the bill to be a police plan—although that is an undefined term—for any force whether lethal or otherwise cannot be the subject of any criminal action against the police. Once the commissioner makes the declaration, any action that is consistent with a police plan and that kills a person—regardless of whether they are a terrorist, hostage or innocent bystander—will result in no criminal liability lying with the police.

This bill also amends the Crimes (Administration of Sentences) Act to provide that terrorism-related offenders—and that has an extraordinarily broad definition in this bill—are not to be released on parole unless the parole authority is satisfied of a negative. That is, the parole authority is satisfied that the offender will not engage in, incite or assist others to engage in terrorist acts or violent extremism. The changes to the parole laws are misconceived. First, their coverage is too wide. Secondly, in a number of critical cases they will work against what I think is the Government’s intention—that is, ensuring community safety—because they will prohibit the parole authority from releasing certain offenders into the community on detailed and extended supervision orders. Offenders will only be able to be released at the end of their sentence and will not be subject to the ongoing requirements of parole. That will not necessarily make New South Wales safer. We know that this bill has come about as a result of the Coroner’s report on the Lindt siege.

Members of this Parliament and many members of the community followed with great interest the coronial inquiry into the Lindt cafe siege. No doubt many who watched the two 4Corners episodes were deeply distressed by what they saw. We were distressed because people who were taken hostage in an appalling terrorist situation lost their lives because of the actions of a terrorist seeking to advance a political cause who did not care what he did to those around him. They were shameful acts. But many people were also concerned about the nature of the police response. First of all, I indicate that those police who went in on that night have an extremely hard job. They did not know what they were going to face when they entered the café but potentially they were going to face an individual with a bomb. We know that he had a gun and earlier he had clearly shown the intent to kill. It was a deeply frightening situation and those police officers acted with extraordinary courage and bravery. However, they were not helped by their training or by the command and control systems in place that day.

On any view, there is a lot of work to be done in the New South Wales Police Force to ensure that future events are handled in a much better way. The Greens, like the New South Wales Government, endorse the State Coroner’s recommendations. However, the Coroner did not say that New South Wales needs shoot-to-kill powers; he said that the police snipers and those other frontline officers had not been adequately trained in the law as it currently applies to the use of lethal force. He said it was the view of those officers that they could not use lethal force unless there was a short-term, imminent threat to someone’s life or safety. But that is not the way the law has operated in the use of reasonable force to protect somebody else from either death or serious injury. The threat does not have to be imminent but it must be real, and the force that is used in response to that real threat must be reasonable and proportionate. The fact that the police at the scene had not been adequately trained in the existing law is a fundamental failure not of the law, but of the police hierarchy and the training given to those individuals of the New South Wales Police Force who were sent to respond to that terrorism incident.

The law in New South Wales already says that police can use lethal force if such force is reasonable and necessary to protect lives or prevent injury to others—that applies to terrorism, domestic violence and other criminal incidents across the spectrum in this State. We know that is the law because on many occasions police in this State have used lethal force and, in the past where lethal force has been used in New South Wales, police have had to justify the use of that lethal force in a coronial investigation as being reasonable and proportionate in the circumstances. Often they also need to justify it in a criminal incident investigation, although I note that those critical incident investigations are normally investigations where police investigate themselves. Under these laws there will no longer be a need for police to justify the use of lethal force because they will be exonerated from any criminal liability regardless of whether or not the response would otherwise under the general law be seen as reasonable and proportionate. The key provision in the bill is new section 24B in the appallingly named part 2AAA, police use of force—ongoing terrorists acts. New section 24B states:

(1)The police action that is authorised by this section when police officers respond to any incident that is declared to be a terrorist act to which this Part applies is authorising, directing or using force (including lethal force) that is reasonably necessary, in the circumstances as the police officer perceives them, to defend any persons threatened by the terrorist act or to prevent or terminate their unlawful deprivation of liberty.

(2)A police officer does not incur any criminal liability for taking any such police action for the purposes of a police action plan of the police officer in charge of the police officers responding to the terrorist act.

What does that say? It says that once the Commissioner of Police or Deputy Commissioner of Police declares that an incident is a terrorist act—and that declaration happens under new section 24A—the police are authorised to use force, including lethal force. Whatever force the police believe is reasonably necessary in the circumstances provided that it is consistent with a police plan and any criminal liability for the use of that force disappears. Police have no criminal liability for the use of that force. Two things need to be said about that. First, that authorises police to use lethal force not only against the alleged terrorist but also against anybody at the incident. The Greens do not understand why the drafters of the bill decided to expand the use of “lethal force” to not only the terrorist but also the hostages and other persons at a terrorist incident.

We do not understand the rationale of the drafters of this bill in deciding that lethal force can be used against anybody provided that it is consistent with a police plan and that it will not incur any criminal liability. Effectively these shoot-to-kill powers do not relate solely to a terrorist; police are authorised to allow shoot-to‑kill powers to be used against anybody at a terrorist incident. Now there may be circumstances where police believe that certain individuals apart from a terrorist need to have their lives seriously threatened or imperilled in a police operation to save the greater good, but why remove any potential criminal liability in this blanket way? Before police have criminal liability removed for the potential killing of people other than terrorists—hostages and the like—why not require police to justify their actions under the existing law? Why not rely upon the current law that requires the force to be reasonable and proportionate and related to the saving of lives?

A terrorist act is not just a hostage incident. This bill picks up the definition of “terrorist act” under the Commonwealth criminal code, which goes well beyond hostage incidents. It can include cyber attacks and other acts of violence quite distinct from a terrorist act. Indeed, it can include threats of violence quite distinct from a terrorist act. These shoot-to-kill powers go well beyond what is required for the New South Wales Police Force. The State Coroner said that the New South Wales Government needs to look at this issue. He said that it needs to look at the fact that the police were not adequately trained and did not know the extent of their existing powers. He also said that the Government should look at the problem identified in the Lindt cafe siege. What the Coroner did not say was that this Government should introduce shoot-to-kill powers that potentially empower police to kill not only the terrorists but also anybody else at the incident who gets in the way of a police action plan. What is a police action plan as referenced in new section 24B (2)? I quote:

(2)A police officer does not incur any criminal liability for taking any such police action for the purposes of a police action plan…

What is a police action plan, one might say? Where is that defined in the bill? It is not. It is simply some administrative provision that the police apparently have. Is it a written plan, is it an oral plan, is it an email plan? We do not know; it is not defined in the bill and, to be quite frank, I do not believe the Government knows the extent of a police action plan. But anything that is authorising a police plan—whether it is written, emailed, telephoned—any action, including lethal force, does not incur any criminal liability. One would think the parameters of the authorisation would need to be very clearly stated. But we do not know what a police plan is; it is not defined in the bill.

I move to the parole provisions. I am quite certain that if one asked pretty much anybody on the street they would say that a prisoner’s parole should be refused if the parole authorities have a concern that a prisoner upon release will engage in terrorism-related activities. In fact, that is the way the law currently operates. If the Parole Authority has concerns that a prisoner on release may engage in, participate in or encourage terrorism‑related activities their parole should be refused. That is the way the law works currently and The Greens believe that that is an appropriate test. But this bill goes much, much further than that. This bill says:

The Parole Authority must not make a parole order directing the release of an offender who is known to the Parole Authority to be a terrorism related offender unless:

(a)the Parole Authority is satisfied that the offender will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism, and

(b)the offender is otherwise eligible under this Act to be released on parole.

Rather there being any evidentiary basis for the Parole Authority to believe that somebody may intend to engage in terrorism-related activities, the Parole Authority needs to be satisfied the offender will not engage in, or incite or assist others to engage in, terrorist acts. It is proving the negative. The offender needs to disprove the negative—an almost impossible job. One might think that if we are talking about somebody who has been convicted of a terrorist offence maybe that is okay, and The Greens think that would be okay. If somebody has been convicted of a terrorism offence they probably should have to prove to the Parole Authority before they are released that they will not engage in any kind of terrorist act. We understand the rationale for that and we would support a law that said that.

But the definition of an offender to whom this division applies includes anybody who has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism. As it is written, this law would apply to somebody whose workmate was in a terrorist organisation or whose friend was in a terrorist organisation, or whose cousin, child or sibling was in a terrorist organisation. They may be in jail for unrelated offences, but any association or affiliation with any persons or groups advocating support for terrorist acts is enough for somebody to be caught up by these changes in the parole laws and then somebody has to disprove the negative before they are released on parole.

The drafting of this bill is so broad and has so little regard to civil liabilities and to the basic rule of law that The Greens cannot support it. The Greens acknowledge that the police will, on occasion, be required to use lethal force to deal with appalling crimes of violence or threatened violence, whether it is terrorism or other violent acts. But the potential criminal liability for police should not be removed upfront through legislation. Where the police believe that lethal force is required and that they have the evidence to show that lethal force is required before they kill a potential criminal or a terrorist or an innocent bystander, they need to have very good grounds for doing that. The police need to satisfy the community and if tested in court, the courts, that their action was reasonable, proportionate and appropriate in the circumstances and necessary to save lives. This bill takes us a long way away from those protections. It takes us a long way down the path of becoming a police state in New South Wales and The Greens oppose the bill.

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