Mike Kelly (Eden-Monaro, Australian Labor Party, Shadow Assistant Minister for Defence) Share this | Hansard source

I rise in support of the amendments proposed by the shadow Attorney-General. In relation to this issue some tense comments have been made in the course of the morning, but I'd like to try to draw back and bring back some sanity to this discussion. This is important for a number of reasons. We have had—and it has been commented on—a great history of bipartisan collaboration on the Parliamentary Joint Committee on Intelligence and Security. To be part of that effort in the interests of national security is probably one of the most rewarding experiences I have had in this parliament. I have great respect for the coalition members who have been working with us on that committee; and I've had great respect for the chair of the committee, the member for Canning, who brings not only his service background to that endeavour but has been patient and deliberative in his work. And we have produced good results in the committee.

The amendments, the recommendations that we have worked through, particularly with the intensity of the workload over the last six years, have been significant. We have faced real threats. And there are real concerns from the agencies, which we have listened to and tried to deliver the outcomes they have sought. I have to say that that 17 tranches of legislation that the Minister for Home Affairs refers to required a lot of work. Frankly, in the process of rushing those through the committee, there was a lot of work that needed to be done to repair them to deliver the outcomes they sought. The committee worked together to produce those outcomes. In particular, I want to commend the shadow Attorney-General. He and his team did the work of a department in producing over 300 recommendations to achieve just that: poor drafting was highlighted in the public and private hearings we conducted. Those 300 recommendations were accepted and it was a joint effort on that committee to achieve those outcomes.

We did that work in the same style and the same manner again in relation to this temporary exclusion order legislation. The recommendations were put forward in good faith on the basis of the legislation that was presented. As has been mentioned by the minister, this was modelled on the UK measure produced in 2015. So this is something that could have been in process at any time over the last six years—or at least since the UK model was reflected upon in 2015. So there would have been time for us to revisit any substantive redraft of this legislation before the committee. And what we are proposing is that that be the course of action—that this legislation be referred back to the committee and done on an urgent basis. We could do that work, however long it took—in the course of this week, we could've got that work done.

There are a couple of issues in particular. The committee produced 18 recommendations altogether—and I noticed that there was some quibbling over what was accepted and what wasn't. In the few minutes I have left to speak in, there is one particular issue of concern that needs addressing, and that is the question of constitutionality. Both sides of politics, in these last 10 years, have experienced issues where approaches we have taken in policy have been struck down by the High Court when there's been a belief by governments that it was all kosher. We've had specific expert commentary reflecting on the constitutionality of this legislation that needs to be answered. And we are putting that forward in the interests of making this legislation effective and not making it vulnerable.

We've supported the legislation—although I have some personal concerns with the approach, which I will come back to. In the circumstances that the agencies are in, in dealing with these returnees, this legislation has been indicated as being important to give them time to respond to preparations for receiving these threat elements returning from prescribed areas, that we have outlawed under legislation, and most likely participating in crimes against humanity, against international law and fermenting terrorism within Australia from those remote locations. It would be in our interests to make sure that they are effectively prosecuted when they return to this country, and we understand the need for preparation for that. However, there are circumstances that need to be addressed in resolving this constitutional challenge and in providing the committee and the parliament time to carefully consider the bill in detail.

I will also comment that this legislation, this approach of temporary exclusion, has been criticised by a number of authoritative institutions in terms of the security outcome we seek to obtain here, and that includes the Australian Strategic Policy Institute and the Lowy Institute. Even the executive council of the Australian jury and the Law Council have commented on the risks that may be generated by taking this approach to this problem.

There's another issue here too, which is that we are putting a burden on our Kurdish friends, who are not a state. They don't have the structures and the institutions of a state. They have been brave. I worked with the Kurds in the year that I served in Iran. They are most reliable ally that we have. They have held the heavy burden in this fight against ISIS—above all other stakeholders involved in this effort. Yes, men and women of the ADF provided wonderful support to enable them to achieve results, but they were the ones largely doing the fighting and dying in the field against these horrendous, heinous criminals, and now they're asking for help. This is a huge burden for them and they need help. We've seen ISIS move from the conventional combat phase of operations. Now they have morphed back to their traditional style of terrorism, and transnational terrorism, and that is their effort to grow and spread their terrorist acts across the globe, so this international threat requires an international effort to deal with it.

The US Secretary of State, Mike Pompeo, has highlighted that that is the fact, and has called on those countries with citizens in this situation to take those people home and deal with them. He's well aware that there's a risk there that these threat elements will spread out to areas where they can operate with impunity, they can be welcomed as heroes and they can operate in ungoverned spaces. We've seen this story play out before in Afghanistan and elsewhere. The exact words of Mike Pompeo were:

We have an expectation that every country will work to take back their foreign fighters and continue to hold those foreign fighters, we think that is essential.

That's our major ally. That's the Trump administration. This is not some social democratic administration, this is our key ally and the Trump administration.

Mr Pompeo also said that the West would, 'never have to fight these same terrorists again,' if we took this kind of action. He said:

We have rounded them up, they are now contained and they need to continue to be contained so they cannot present additional risk to anyone anywhere in the world.

That is important, because the truth of the matter is that more than 100 Australians have been killed since 2001 in overseas terrorist attacks. That is by far the greatest threat and risk to Australians. Australians are great travellers. Our kids and retirees are out there touring the world, visiting interesting places, which can be risky. It is in our interest to ensure that we limit the risk that they face when they are travelling where they have faced the biggest threat of being killed and maimed in large numbers.

You can look at that story. It happened in New York, Bali, Barcelona, London and Sri Lanka. Australians have been casualties of terrorist attacks in all of those venues. I will just cite one story that brings that home to me. In 1995 there was a gentleman who the Sudanese government had in their custody that they wanted to return to Saudi Arabia. The Saudi Arabians refused to take him back because they had revoked his citizenship. This goes to this other measure that we have looked at here in terms of revocation of citizenship. They wouldn't take him back, and so the Sudanese government in 1996 sent that individual to Afghanistan. That was in 1996. After that happened, that individual, whose name was Osama Bin Laden, caused the bombing attacks on the US embassies in Darussalam and Nairobi—hundreds killed—the attack on the USS Cole, and 9/11. That led to the war in Iraq, the war in Afghanistan and thousands and thousands of people being killed, all because his citizenship was revoked and he wasn't taken back by the country who owned him.

This is the potential risk that we run in doing the same to these citizens of ours, who would have a special interest in targeting Australians and who were engaged in fomenting terrorist action in Australia from those remote locations. This is the risk we are running in taking this approach. I personally feel that we should have a regime in place here where we can take these people back as soon as possible and restrain them—those arrangements seem to already exist in a lot of the legislation we've already produced through the committee and in this place—to keep them off the streets while we pursue possible prosecution or at least the safe tracking and containment of those individuals. That, I think, would be the more prudent, secure and risk-eliminating approach to take for Australian citizens. We've seen the situation where individuals go back to a country where they had a second citizenship, for example Libya, Lebanon or Pakistan, and we know what could potentially occur from there. There are ungoverned spaces in all of those places.

So we have a real problem that we need to deal with effectively here. We support this bill as one option for dealing with this problem in certain circumstances. Obviously, the agencies have indicated they need time to prepare for receiving these people in the circumstances that they are operating in at the moment, so we don't oppose that. But what we do say is that this legislation needs to be looked at again in the form that it has been presented.

I will make one other comment before finishing. I've put special emphasis on the fact that this has been a bipartisan committee. I have spent more than 30 years of my life immersed in the security affairs of this nation, fighting these terrorists and dealing with these issues, only in the national interest. When I was security adviser for Bill Shorten, I worked closely with Peta Credlin to make sure that our approach was bipartisan. I made it clear to her that all she had to do was tell me this was needed and we would work to make these things happen. So I find it extremely worrisome that the government, in its approach to this legislation, is leaving open the accusation of politicising this issue, as evidenced by comments such as, 'Whose side are you on?' That negates the very democratic institution that all of this is meant to protect.

But, beyond that, it's a personal insult not only to the general members here, who are all proud Australians, but I've worn this country's uniform in four different war zones, putting my life on the line to fight these people. No-one can say to me, or to the member for Solomon, who served in this country's uniform, 'Whose side are you on?' The member for Maribyrnong served in the reserves for this country. The member for Moreton wore the Air Force Reserve uniform. Don't say to them, 'Whose side are you on?' Argue the merits of this policy. Don't deny the valid role of this institution to debate and analyse these types of legislation, because it's important we get the balance right between civil liberties and action on security but also deliver the right outcome. We are entering into the commentary on this legislation in good faith. Don't question the patriotism or the intent of the members on this side. I won't stand for that. We won't stand for that. Just engage in an honest debate with this. Use the institutions that were created to deal with these matters. Let the parliamentary joint committee do its work. It's done good work. It will do more good work as long as we keep the politics out of this.

My plea to this government is that we revisit this style of approach you are taking now. Do not put at risk the institution that we serve or the faith that the Australian people place in this institution to do things the right way in the interest of national security and protecting their liberties.

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