Tim Watts (Gellibrand, Australian Labor Party, Shadow Assistant Minister for Communications) Share this | Hansard source

It's only Tuesday, and it's already been a disappointing week for this parliament. The second day of the second week of the current parliament has put a spotlight on the threadbare agenda of this tired, third-term government. It's a government that has turned a permanent campaign into a permanent opposition. This week has revealed a government with no substantive agenda of its own and a compensating obsession with those sitting opposite them in this chamber. It's a government that's more interested in pursuing tactical wedge politics than in delivering for those people that elected them to represent them. It's a government willing to trash longstanding norms of practice and procedure in this place in pursuit of short-term political tactics. Ultimately it is the Australian people who will pay the price for the approach being taken by those opposite.

The Labor Party will always work in a constructive and bipartisan manner on national security, even when we are lacking a partner in this effort. Keeping Australians safe is Labor's No. 1 priority. We support strong laws and we'll seek to work in a bipartisan way to achieve the best outcomes for keeping Australia and Australians safe. For the past six years we have worked constructively and in a bipartisan way with the government through the Parliamentary Joint Committee on Intelligence and Security. Throughout both the Abbott and the Turnbull governments, the PJCIS process was respected by all those who participated in it, and during that period the PJCIS inquiries resulted in 31 reports with 369 recommendations—invaluable, bipartisan work done behind the scenes in the public interest by parliamentarians acting in good faith to improve proposals and legislation brought to the committee to keep Australians safe.

The Abbott and Turnbull governments accepted all but one of the committee's recommendations, and the result: better legislation to keep Australians safe. It's been hard work in this committee. I haven't been a member, but I know the regard in which it is held by all members in this chamber. A spot on this committee is keenly sought by members because we understand the privilege that it is to serve on it and the special obligations that it brings—scrutinising proposals to keeps Australia safe, long hearings to gather evidence about the efficacy of these proposals, rigorously testing legislation to ensure that it delivers on those proposals, and tough, good-faith negotiations where, after this scrutiny, after hearing the evidence, there are differences of view.

That brings us to this bill, the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019. Labor supports the PJCIS's recent recommendations on the temporary exclusion orders—bipartisan recommendations made in good faith by this committee. Labor supports strong laws that will secure the safety of Australians and we support the need for a temporary exclusion order regime. The issue of foreign fighters is not a new one, and there are international lessons that we can draw from. The United Kingdom has had temporary exclusion order legislation in place since 2015. Both Labor and Liberal members of the PJCIS worked diligently through the various community concerns and provided their detailed report on 4 April 2019, making 18 substantive recommendations. So far, so normal. That's the way it's supposed to work—a substantive report provided in good faith, a consensus report on a bipartisan basis. But this is where things change.

The temporary exclusion order legislation we are debating today explicitly rejects a number of PJCIS recommendations—for the first time explicitly rejecting consensus, bipartisan recommendations designed to improve this legislation and to make Australians safer. The government claims that it is only rejecting two recommendations, but that's clearly not true. In total, four PJCIS recommendations have been rejected in full by the Minister for Home Affairs, and six have been rejected in part. Recommendation 10 from the PJCIS suggests that a person may seek judicial review of a decision of the minister to grant or refuse an application. The government has argued that judicial reviews are unnecessary in these circumstances because a minister must accept an application for a return permit. But that's not true. The minister must give a return permit if the person has applied to the minister in a prescribed form and manner or if the person is to be, or is being, deported to Australia. The minister may refuse to give a return permit if he does not believe the person has applied in an appropriate manner. But, more importantly, judicial review of a decision to grant a return permit is needed because it allows the applicant to seek judicial review on one or more of the conditions set out in the permit rather than in the permit itself.

The bill put forward by the government is not as strong as this law should be. In fact it's unclear if the law is even constitutional. We often get lectures from those opposite about the virtues of constitutional conservatism, about not playing with a system that is working efficiently. And yet those opposite cannot, with hand on heart, stand in this chamber and say that this legislation will be constitutional. The Law Council of Australia has stated publicly that this legislation risks being struck down in the High Court for being unconstitutional. Labor members of the PJCIS have repeatedly requested an assurance from the government that the bill is constitutional, but this has been ignored.

In rejecting the PJCIS's recommendations, the Minister for Home Affairs seems to have forgotten that these are not partisan recommendations, that these are not recommendations of the Labor Party. These are bipartisan recommendations from the most respected committee in this parliament, from members respected by all in this parliament, a committee that has done invaluable work, over the past six years in particular, in making Australians safer. Unfortunately, the Morrison government is establishing a track record of breaking this compact in the way that the PJCIS has happened to date, as occurred—not explicitly, but in practice—in the last piece of national security legislation that was rushed through this parliament, the assistance and access bill, in 2018.

Despite the PJCIS handing down 17 substantive recommendations on the assistance and access bill, these recommendations were not fully incorporated in the legislation passed by this parliament. Labor proposed several amendments to bring the legislation in line with the PJCIS's recommendations that addressed numerous community concerns that the PJCIS had heard during an extensive parliamentary inquiry into that bill. The government has in effect rejected those amendments, thereby rejecting the bipartisan compact in the PJCIS. This is no way to deal with important national security legislation.

Rushing legislation through this parliament without proper debate, eschewing established bipartisan parliamentary processes, risks problems in the future. It leads to mistakes, as we saw with the rushed passage of the access and assistance bill. Even though that bill was intended to assist law enforcement and our national security agencies by facilitating the interception of online communication channels, in practice that legislation may end up leaving Australian law enforcement and national security agencies unable to take advantage of the recently passed CLOUD Act in the United States, a US law intended to make it easier to obtain access to data held by tech companies.

What we're talking about here is the difference between data in transit and data at rest. The Telecommunications and Other Legislation Amendment (Assistance and Access) Bill dealt with assisting law enforcement to access data that was being communicated between people. That was the whole encryption debate. But in the process of dealing with that, by failing to include judicial review in the access and assistance bill, unintentionally—because that bill was rushed through this parliament—we have precluded ourselves from having access to a new regime designed to facilitate access to a vastly large trove of data, a vastly more valuable law enforcement tool. We have precluded access to the data stored by these communications companies in the United States.

In a Law Council submission to the PJCIS inquiry in 2018, they argued that the law is likely to disqualify Australia from entering into an executive agreement with the US under the CLOUD Act, because the CLOUD Act states that before entering an agreement the US Attorney-General is required to certify that the other nation 'affords robust, substantive and procedural protections for privacy and civil liberties' in light of the data collection and activities of the foreign government that is subject to the agreement.

What this is about is that the Americans have a law saying that data stored in the US is not allowed to be shared outside the US outside this CLOUD Act regime. The CLOUD Act regime says that that data can only be shared outside the US if it's being shared with another country that has robust procedural protections for that data. The United Kingdom is currently negotiating access to that legislation, as you would expect, as a Five Eyes partner. You would expect that Australia would be next in line, as another Five Eyes partner. But we've stuffed it up. Until we fix the access and assistance bill that was rushed through this parliament—heedless of this concern—we will not be able to negotiate one of these CLOUD Act agreements.

That is the cost of trashing process and procedure to ram through bills in this parliament. That is the cost of trashing the good faith bipartisan scrutiny of national security legislation in this parliament. In the bill before the House today, we must heed the lessons of the access and assistance bill. If the government passes this proposed temporary exclusion order legislation unamended, it may be unconstitutional, as we discussed earlier. If the government passes these proposed bills without change, it will do so in the face of criticism from security experts, from respected organisations such as ASPI and the Lowy Institute. There are serious consequences to disregarding established bipartisan processes and recommendations, which the Morrison government and his Minister for Home Affairs seem determined to do in this parliament.

Why the rush? After doing nothing for such a long period of time, why the rush now? The government wants to rush this bill through the parliament despite significant flaws identified in a bipartisan basis through the PJCIS, because it claims the legislation is urgent due to the risk of foreign fighters. This risk is not new. It has been apparent for many years that Australians would face the risk that radicalised Australians would attempt to return home. We knew this when the United Kingdom parliament passed temporary exclusion orders legislation more than four years ago. But the minister responsible for national security in this country has either been incompetent, lazy or asleep at the wheel. Why has it taken four years?

It wasn't until 22 November 2018, when the newly minted Prime Minister and the Minister for Home Affairs, desperate for a policy announcement, realised they could announce a new temporary exclusion order regime. But then again nothing happened. This seemingly urgent piece of legislation was then not introduced into the parliament until 21 February 2019, the second-last sitting week before the federal election. The government then rushed the legislation through the PJCIS. Both Labor and Liberal members worked extraordinarily hard through the PJCIS to make 18 recommendations, which the government rejected the majority of—10 of those recommendations. Now they want to rush this legislation that is so important to ensuring the safety of Australians through the parliament, disregarding established bipartisan practice, despite not doing anything about the issue from many years.

What the government ought to do at this point is take a deep breath, step back and restore bipartisanship in this process. It should refer this legislation back to the PJCIS. While Labor supports the need for temporary exclusion order legislation, we will seek to amend this legislation to reflect the considered thinking, hard work and bipartisan recommendations of the PJCIS. The Counter-Terrorism (Temporary Exclusion Orders) Bill and the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill, read together, are not consistent with the PJCIS recommendations. The bills should be referred back to the PJCIS to ensure that they work, to ensure that all concerns have been addressed and to ensure that they can withstand High Court challenge.

It's high time that the Morrison government return to the bipartisan process respected by both the Abbott and Turnbull governments and let the PJCIS do its job. The safety of all Australians is too important for national security to be politicised in this way. That's the nub of it. That's what's going on here. Four years of inaction—nothing! Legislation that could have been introduced any time through that period was introduced in the second-last week before a federal election—no rush, no urgency—and now, with a new parliament that has no policy agenda and the government sniffing a short-term tactical benefit, a short-term political wedge, it is the No. 1 priority. In pursuit of that short-term political benefit, that political wedge, this government is willing to trash one of the most important institutions in this parliament.

Institutions take decades to build. The respect of the PJCIS by all members of this parliament is extraordinary. It's unique in this parliament. What is happening today with this bill is very significant, and conservatives sitting opposite ought to care about this more than anyone else. Who is standing up for institutions in our democracy today? Do those opposite think that our democratic institutions are in robust health today? Do they think that their constituents, the Australians who put them in this place, think our democratic institutions are in rude health? We know that's not the case. Now is the time to take a stand for our institutions and defend them because they pay dividends down the line.

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