Tania Lawrence (Hasluck, Australian Labor Party) Share this | Hansard source

A rather poignant quote from the Canberra Times editorial in May 1984 reads:

The watchdogs have to be constantly watched. None the less watchdogs are necessary.

  …   …   …

Liberty and security go hand in hand. Without liberty there can be no security; without security there can be no liberty.

One of the key differences between a democracy and a totalitarian regime is the lack of effective oversight of the executive in the latter. This is an issue I spoke on about a fortnight ago in the debate on the Ministers of State Amendment Bill. Likewise, on the bill for the National Anti-Corruption Commission I opined that corruption undermines trust and trust is the basis of legitimate government.

This legislation is also about effective oversight, and of parts of the executive government that must by necessity conduct most of their operations secretly. The Inspector-General of Intelligence and Security is a fundamental way in which trust is engendered in the workings of our security services. Integrity and respect are vital in our national institutions. Today, the Office of the Inspector-General of Intelligence and Security is headed by the Hon. Christopher Jessup KC and has broad support across the parliament, as we have heard from our previous speakers, as does the Joint Committee on Intelligence and Security, which was established at the same time. But this was not always the case.

The Hope Royal Commission on Intelligence and Security was established by the Whitlam government in 1974 and reported in 1977. In 1986 the Hawke government enacted the legislation for an Inspector-General of Intelligence and Security, which had been a recommendation of that commission. When the legislation was before the parliament in 1986 it was opposed quite vehemently by some members of the then opposition. The late Hon. Michael Mackellar, the Liberal member for Warringah, said:

I have great difficulty in accepting that the office, when it is established, will do anything but make it more difficult for ASIO to operate in a proper fashion.

The Hon. Neil Brown, a former Liberal member for Menzies said:

… the very notion of having an Inspector-General to second guess an intelligence agency is utterly absurd and it is a severe restriction on its effectiveness. The powers to be given to the Inspector-General will negate a lot of the effectiveness of ASIO and its activities.

The opposition spokesperson the late Hon. John Spender said:

… we certainly would not permit, in any legislation to be introduced into this House when we have the carriage of legislation, that there should be inquiries of the kind contemplated by the Bill, that is, inquiries into practices alleged to be contrary to human rights. It is perfectly absurd and quite obnoxious that that kind of inquiry should be directed against an intelligence organisation.

Well, those fears have not been realised in the decades since the creation of this legislation. Former Labor Attorney-General Lionel Bowen, upon introducing the bill, said he believed: 'The creation of this office is a highly beneficial addition to the machinery of government.'

Interestingly, some commentators have suggested the rise of integrity agencies constitutes a new differentiation and separation of powers within our system of government. We have all grown up with the teaching that Australian system involves three heads of power—the legislature, the executive and the judiciary. However, integrity bodies such as IGIS and the new National Anti-Corruption Commission are not easily categorised under any of these. Perhaps we need to accept that our world has changed and so change the way we describe and teach about our separation of powers. Indeed, on the introduction of this amending bill, Attorney-General Dreyfus stated quite rightly that 'strong and effective oversight mechanisms do not stand in opposition to Australia's national security interests. They are best understood as an essential part of advancing them'.

Separate from the office of the IGIS and constituted by its own act, we also have Independent National Security Legislation Monitor, which reviews the operation, effectiveness and implications of national security and counterterrorism laws. The current Independent National Security Legislation Monitor is Mr Grant Donaldson SC. I agree with the Attorney-General on the need for strong and effective oversight organs.

In 2010 I was the principal policy adviser to three consecutive West Australian premiers on security and emergency management. These were the Labor premiers Gallop and Carpenter, and Liberal Premier Barnett. In that role I advised the premiers on our state responses to terrorism. I worked on committees supporting the national counterterrorism efforts and provided input to the COAG processes and decision-making, providing draft instructions on different laws both state and federal. As part of my role was working on the National Counterterrorism Legislative committee, I was specifically involved in the drafting of the Anti-Terrorism Act and the state-equivalent versions, particularly around preventative detention. I can share with the House that, during those deliberations, questions of safeguards and human rights were front and centre and the role of IGIS in ensuring propriety and respect for human rights was appreciated and valued—although, I must say, contested. This was at the time that David Hicks was still in Guantanamo Bay. We can recall the history and record of the struggle there was to restore his human rights and dignity and to return him to Australia. The extent to which the legislation was unified around the nation and reflected in state laws completely underpins the need for these oversight bodies.

The preventive detention laws, which refer back to the antiterrorism acts, enable a person to be detained without charge and without the knowledge of their family or their employer for a given period of time. I had the responsibility of inspecting the potential places where a person could be detained. I can't speak to it today, but certainly back then in jurisdictions like Western Australia the accommodation options were limited, particularly for women and juveniles. We are talking about extreme, draconian laws that we had to work through, and the only sense of a surety that the human rights of each individual would be observed within the constraints of trying to prevent an act of terrorism or to control a person who had committed an act of terrorism, where their freedom of movement would be limited, was to have the security inspector to oversight that activity.

With any security legislation—state or federal—there is a need for vigilance not only over the operations of those powers but also against the creep of powers. I know that in those extensive meetings we held framing, forming and drafting those laws we were very concerned that they were understood to be draconian, that they were only meant to be used in the context of terrorism. But since that time, I am sad to say, I have seen the laws stretched to be considered to be appropriate to apply to bikies. I have seen attempts to apply them to protesters. That was never the intention behind those laws. It is important that our security—

A division having been called i n the House of Representatives—

Sitting suspended from 10:52 to 11:03

In a democracy we must minimise laws that can only be described as Draconian. It's all the more reason to have an oversight body to assist and provide feedback where operations fall short of the mark in any area. This amending bill helps to further empower the IGIS in reasonable and measured ways. I note that the Attorney General has flagged a number of other areas in the field of security which are under active review.

The inspector-general works in two main ways. Firstly, the office is empowered to conduct inquiries. The amending bill seeks to enhance the ability of the inspector to commence an inquiry. Secondly, the inspector conducts proactive inspection activities. Through both of these roles, the IGIS supports the creation of a culture of compliance within the intelligence organisations. There is also regular formal correspondence between the IGIS and each of the agencies. These points of contact and the ability of IGIS to make recommendations to the agency heads contribute to a more reflective intelligence service. Recommendations by the IGIS appear to be taken very seriously. It is important to note that the IGIS has the powers of a royal commission and can report his or her dissatisfaction to a minister and, albeit in a careful manner, in the annual report tabled to parliament. The IGIS is also able to provide feedback to the Joint Committee on Intelligence and Security.

The powers of the IGIS are a significant consideration which intelligence agencies must take into account when conducting their important work. In order to conduct their oversight role, IGIS officers are cleared and empowered to enter any Australian security agency and inspect the work being done, including emails, files, correspondence and other documentation. In relation to this task, I understand that IGIS is now building its own IT department, whereas it has in the past been reliant on the IT services of each agency.

Last year's annual report by IGIS disclosed that the organisation received hundreds of pieces of correspondence, 80 of which were ascertained to be complaints under the act. In relation to their oversight of each organisation, the reports on ASIO are demonstrative, with 21 inspections completed and 30 compliance incidents reported.

When we create security legislation and when we create legislation to provide oversight of our security apparatus, we are engaged in a balancing exercise. In a democratic society there must be ways to assure ourselves that our security agencies are acting with proprietary while at the same time allowing them to carry out their activities without the publicity that would render them less effective. In this balancing exercise there are a number of rights and interests that need to be considered, including the principles of the separation of powers, which I spoke to earlier, between the different branches of government, as well as the divisions of powers between levels of government within the federation, the accountability of government agencies' work practices within those agencies, civic and human rights and, of course, the right to protest.

The Independent National Security Legislation Monitor, which commenced in 2010, was carried into being by the Attorney-General and the previous Labor government. The Attorney-General referred in his second reading speech on that bill to 'the balance between the liberties that Australians enjoy—indeed, the liberties that Australians have fought wars for—and the need for authorities to be armed'. We have separated the roles of overseeing the legislative framework by the Independent National Security Legislation Monitor and overseeing the operations of agencies by the IGIS. This separation is a good thing.

The modern role played by our security agencies is not easier than in the past. Researcher Ben Scott recently remarked:

The blurring of old distinctions between security, economics, development and technology is a recurring theme of the new geopolitics.

Globalisation, economic interdependencies and an increase in cyber-interference and cyberattacks—sometimes state-sponsored—mean that it is more difficult terrain for our services to navigate. It is, in short, a more difficult world within which to write a credible spy thriller and a more difficult world in which to operate a security agency. I am satisfied that the system that we have here is working and that the amendments to this act will assist IGIS in its important work. I commend the bill to the House.

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