Michael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | Link to this | Hansard source

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I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

I am pleased to introduce the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, which passed the Senate on 26 November. The bill amends the Criminal Code Act 1995 and the Intelligence Services Act 2001.

The amendments to the Criminal Code will allow the Australian Federal Police to seek control orders in relation to individuals of security concern not currently captured by that regime.

The amendments to the Intelligence Services Act will facilitate the Australian Secret Intelligence Service assisting the Australian Defence Force in support of military operations, and will enhance the arrangements for the provision of emergency ministerial authorisations to Intelligence Services Act agencies to undertake activities in the performance of their statutory functions.

The bill also implements outstanding matters from the Parliamentary Joint Committee on Intelligence and Security inquiry into an earlier bill—the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

The Attorney-General has commented about the nature of the security threats we all face and the necessity of this legislation.

The bill has had the benefit of being reviewed by the Parliamentary Joint Committee on Intelligence and Security, under the chairmanship of the member for Wannon, Mr Dan Tehan MP, who has again done an exemplary job as the chairman of that committee.

The committee recommended that the parliament pass the bill, subject to the implementation of 15 recommendations, which focus on improving statutory and operational or administrative safeguards to the proposed measures, including independent oversight.

The government accepts or accepts in-principle each of these recommendations and thanks the committee for its detailed consideration of the bill.

Minor amendments were made to the bill in the Senate to implement 11 recommendations to improve the accountability and clarity of certain provisions in the bill and ensure the powers provided for in the bill are subject to appropriate review.

Further inclusions in the explanatory memorandum address two of the recommendations.

The other recommendations are being implemented outside the parliamentary process.

Against this background, the bill enhances the capability of our security agencies and strengthens Australia's already robust counter-terrorism laws in several key areas.

Schedule 1— Control Order Measures

Broadening the grounds for making a control order

The bill will enable the AFP to request, and an issuing court to make, a control order on a broader range of individuals of security concern.

These amendments respond to advice from law enforcement agencies that there are individuals of potentially very serious security concern who are not covered by the existing provisions for making a control order.

From a public safety perspective, the threat posed by these individuals—who have provided support or facilitated Australians either to engage in terrorism offences in Australia or to travel to conflict zones and return to Australia with capabilities acquired from fighting or training with proscribed terrorist groups—is as great as the risk posed by those engaging in terrorist acts or foreign incursions.

Using the control order regime to impose targeted obligations, prohibitions and restrictions on these individuals will help the Australian Federal Police disrupt their support and facilitation activities, thereby preventing acts of terrorism in Australia and hostile activities overseas.

Increasing the time for seeking AG consent from four hours to eight hours

The bill extends the period before which the senior AFP member must seek the Attorney-General's consent after obtaining an urgent interim control order from an issuing court from four hours to eight hours.

This is appropriate and necessary to avoid an interim control order made by an issuing court in urgent circumstances lapsing merely because the Attorney-General is unavailable to provide consent—for example, because the Attorney-General is in transit.

The decision to increase the period to eight hours rather than 12 hours (as originally proposed in the bill) reflects the fact that, even if the Attorney-General is in transit between the east and west coasts of Australia, eight hours should be sufficient to seek consent. Where the Attorney-General is absent for longer periods, such as during overseas travel, it should be possible to seek the consent of the minister acting in the Attorney-General's portfolio.

Schedule 2—Intelligence Services Act m easures

As I have said, the bill will make targeted recommendations to the Intelligence Services Actto improve the ability of ASIS to provide timely assistance to the Australian Defence Force in support of military operations, and to streamline the statutory authorisation process to enable the IS Act agencies to collect intelligence on Australian persons overseas, in emergency circumstances. (These agencies are ASIS, the Australian Geospatial-Intelligence Organisation and the Australian Signals Directorate.)

There is an urgent need to make these amendments to ensure that intelligence agencies can undertake relevant activities in support of the ADF's operations in Iraq against the ISIL terrorist organisation.

These activities are anticipated to include the collection of intelligence in relation to Australians who are known or suspected participants in hostilities, and particularly those who are known or suspected of fighting with or alongside the ISIL terrorist organisation. Such intelligence is likely to prove instrumental to these operations, including in protecting ADF personnel, members of other defence forces, and civilians from death or serious harm as a result of terrorist or other hostile acts committed in the course of the conflict.

The proposed amendments are directed to two key areas.

ASIS activities in support of, and in cooperation with, the ADF

The primary purpose of the amendments is to better facilitate ASIS providing timely assistance to the ADF in support of military operations, and its cooperation with the ADF on intelligence matters. The proposed amendments make explicit that such support and cooperation is a function of ASIS, consistent with explicit functions to this effect conferred upon the two other IS Act agencies, ASD and AGO.

These measures also make a small number of amendments to facilitate the timely performance by ASIS of this function. These concern the provision of ministerial authorisation by the minister responsible for ASIS in relation to a class of Australians, and enabling the Attorney-General as the minister responsible for ASIO to provide agreement to an authorisation in respect of individuals falling within a specified class of Australian persons. All of the existing safeguards in the Intelligence Services Act will apply to the performance of the new function. These include the statutory thresholds for the granting of authorisations, ministerial reporting requirements, and the independent oversight of the Inspector-General of Intelligence and Security.

Emergency ministerial authorisations

Secondly, the proposed amendments also remedy practical limitations identified in the arrangements for emergency ministerial authorisations which apply to ASIS, ASD and AGO.

The amendments make provision for the contingency that the relevant ministers may be temporarily uncontactable when there is an urgent, previously unforeseen need to collect vital intelligence. Presently, there is no legal basis on which agencies can undertake activities in these circumstances, meaning that critical intelligence collection opportunities may be missed. The amendments will address this by enabling an agency head to grant a limited emergency authorisation, subject to rigorous and extensive safeguards and oversight mechanisms.

These authorisations are strictly limited to 48 hours maximum and cannot be renewed. Additional issuing criteria apply to authorisations by agency heads, including express consideration of whether the relevant minister would have been likely to grant the authorisation, on the basis of the existing statutory criteria. Further, to ensure that it is only available in an extreme emergency, the agency head must also be satisfied that, if the activity was not authorised, security would be seriously prejudiced or there would be a serious risk to a person's safety. The minister must be notified within eight hours, and is under a positive obligation to make a decision about whether it should continue within the 48 hour maximum, or be cancelled or replaced with a ministerial authorisation. The Inspector-General of Intelligence and Security must also be notified as soon as practicable within three days. In addition, the Inspector-General is required to conduct oversight of the agency head's compliance with legislative requirements and provide a report to the relevant responsible minister within 30 days. The Inspector-General must also provide a copy of the conclusions in that report to the Parliamentary Joint Committee on Intelligence and Security within 30 days.

The amendments also provide for contingency arrangements in the event that the Attorney-General is not readily available or contactable to provide his or her agreement to the making of an emergency ministerial authorisation, where such agreement is required because the authorisation concerns the undertaking of activities in relation to an Australian person who is, or who is likely to be, engaged in activities that are, or are likely to be, a threat to security. Identical requirements for ministerial notification and IGIS and parliamentary joint committee oversight apply to these amendments as to emergency ministerial authorisations as I have just outlined.

The amendments also address an unintended limitation in the ability of ministers to issue emergency authorisations. Presently, no provision is made for ministers to issue these authorisations orally, with a written record to be made of that decision. This is incompatible with the circumstances of urgency in which emergency authorisations are designed to operate, and with the longstanding approach to other forms of emergency authorisation—such as search warrants, telecommunications interception warrants and surveillance devices warrants. The proposed amendments bring the emergency ministerial authorisation process in the ISA into line with this approach.

While not wishing to go through each amendment to the revised explanatory memorandum which implements the parliamentary joint committee's recommendations, I do wish to note that the government has also implemented a suggestion from that committee that was not the subject of a recommendation. This is that the explanatory memorandum include details of why the IS Act already operates to prohibit ASIS from engaging in conduct constituting torture or cruel, inhuman or degrading treatment or punishment. The revised explanatory memorandum includes this explanation, which the government notes was the subject of some inaccurate comments in the Senate and in the 16th report of the Parliamentary Joint Committee on Human Rights, of 25 November. We trust that the revised explanatory memorandum will ensure that any further debate on this issue is informed by an accurate legal analysis.

Concluding remarks

The Australian government is committed to fulfilling its most important responsibility—protecting Australia, its people and its interests—and will do so while instilling confidence that our national security and counter-terrorism laws will be exercised in a just and accountable way.

This bill is an important step in the government's continuing efforts to strengthen Australia's robust national security laws to proactively and effectively address the threat posed by returning foreign fighters. I therefore commend the bill to the house.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

This is now the third time that I have spoken to national security legislation in this term of the parliament. My approach, and Labor's approach, has been consistent on each occasion.

As the Leader of the Opposition has said many times now, Labor believes that our security agencies and national institutions should have the powers and resources they need to keep Australians safe from the threat of terrorism, and we will support the government in providing those powers and resources. This is what Labor did in government and this is what we have been doing in opposition.

Our record on this is clear. Labor supported the government's first national security bill, the National Security Legislation Amendment Bill (No. 1), which passed the parliament on 25 September. That bill arose out of a Parliamentary Joint Committee on Intelligence and Security report commissioned by the former Labor government. The bill updated and adjusted in a general way, unconnected with any particular threat, the architecture of our national security organisations so that they will be able to better meet the demands on them well into the future.

Labor also supported the government's second bill, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, which passed the parliament on 29 October. As I said when speaking to that legislation, the foreign fighters bill was of a different character to the first bill. The foreign fighters bill directly addressed the threats to Australian security which have arisen out of present circumstances in Iraq and Syria. Where the first bill focused on the structure of our national security institutions in the long view, the foreign fighters bill focused on the discrete powers most relevant to addressing the immediate threat arising from Australians travelling to fight with overseas terrorist organisations and potentially returning to Australia.

In neither of these cases was our support for the government's objective—protecting Australia against genuine security threats—in any sense a blank cheque of support for the particular measures the government proposed to deal with these threats. In each case we insisted that the government's legislation be closely scrutinised by the Parliamentary Joint Committee on Intelligence and Security and, through this process, subject to consideration by legal experts, community groups and the wider public.

In each case the committee recommended a number of significant improvements to the legislation, which we insisted the government implement. In the case of the foreign fighters bill, the concerns that Labor members expressed in the committee process were not addressed by the government and Labor moved amendments in the Senate, which the government opposed. This is constructive bipartisanship. Although we share the commitment of the government to taking the necessary steps to ensure the safety of the community, our own Labor values inform the approach we are taking to fulfil this commitment. We have taken that same approach with the bill I am speaking to today, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014.

Although this is the third national security bill that the government has introduced into this parliament, it is essentially ancillary to the second bill, the foreign fighters bill. This bill, introduced into the parliament on the same day the foreign fighters bill was passed, 29 October, contains one measure recommended by the PJCIS in its report on the foreign fighters bill but which was not able to be legislated in that bill, due to a need to consult with the states and territories.

The bill also contains three new measures: further changes to the control order scheme, streamlining the process for the Australian Federal Police to apply to the Attorney-General for consent to seek a control order from an issuing court and expanding control orders to apply to persons involved in supporting or facilitating terrorist activities; provision for emergency ministerial authorisation for the Australian Secret Intelligence Service, the Australian Geospatial Intelligence Organisation and the Australian Signals Directorate activities; and provision for cooperation between ASIS and the Australian Defence Force on military operations.

The three new measures were developed in response to operational needs identified by Australia's anti-terror agencies after the foreign fighters bill was introduced into the parliament. The government sought to include these three measures in that bill without first revealing these measures to the Australian people and without full scrutiny by the PJCIS.

As I have said, it is Labor's consistent position that all national security legislation should be rigorously examined to make sure not only that it will be effective in protecting our nation but also that it does not unduly infringe on important rights and freedoms. In keeping with that position, Labor insisted that the government introduce these three new measures in a separate bill and that they be subject to public scrutiny and a full intelligence committee inquiry.

Accordingly, this bill was introduced in the Senate, on 29 October, and immediately referred to the PJCIS. The PJCIS sought submissions, held brief hearings and tabled its report, out of session, on 20 November. In its report the intelligence committee recommended that the bill be passed and made 15 substantive recommendations. Significant recommendations include: amendment of the bill to require the Australian Federal Police to provide the Attorney-General with a summary of facts when seeking consent to apply to the court for an interim control order, including any facts indicating why such an order should not be made; retention of the requirement for the AFP to explain to the issuing court the reasons justifying each condition in a draft control order. The bill as introduced would have effectively reduced judicial oversight by only requiring the AFP to justify the control order as a whole and would also have shortened periods for notification of the relevant minister where agencies issue emergency authorisations. A further significant recommendation was that the government urgently appoint a new independent National Security Legislation Monitor and task the monitor with reviewing whether recommendations for safeguards on the control order regime, recommended by the 2013 COAG review, should be implemented, as well as a range of additional oversight measures.

Importantly, the recommendations will improve the accountability and transparency of decision making by national security agencies. The recommendations will also ensure that control order applications are closely and appropriately scrutinised. With the government's agreement to implement all of the committee's recommendations, Labor is willing to support this bill. As amended, this bill makes some sensible changes to our national security laws. It is one that a responsible opposition—and ours is a responsible opposition—should and does support. As I have said, this is now the third national security bill proposed by the government and supported, with amendment, by the Labor opposition. That is, three bills in around 4½ months. Although each was, as I said, given due scrutiny at Labor's insistence, each has been dealt with in an expedited manner.

We should be very clear, though, that the security threat posed to Australia by recent events in Iraq and Syria will not and cannot be wholly solved by legislation.

In the counter-terrorism white paper, released in 2010, the former Labor government set out the four key elements of Australia's counter-terror strategy:

New and stronger laws can support the first three of these elements. But legislation alone will not support the fourth. More pages in the statute books will not make ours a more resilient community. It is worth quoting the white paper's explanation of that concept—resilience:

Australia’s counter-terrorism efforts are supported by our open democratic society. There are inherent strengths in our society that make Australia resilient to the divisive worldview of al-Qa’ida and like-minded groups. However, we know from experience that the terrorist narrative may resonate with a small number of Australians. It is incumbent upon all Australians to work together to reject ideologies that promote violence, no matter from where they arise or to what purpose they aspire. We must all support and protect the values and freedoms from which all Australians benefit. By reducing disadvantage, addressing real or perceived grievances and encouraging full participation in Australia’s social and economic life, government policies can help to mitigate any marginalisation and radicalisation that may otherwise occur within the Australian community.

Building this sort of resilience must, in the context of the foreign-fighter threat, be an even higher priority now than it was in 2010, when the white paper was written. This is a threat that we fear will emerge from among our own. Already some young men and women in our community have become ensnared in the violence and the chaos occurring in Iraq and Syria. There is clearly a risk that more young men and women will be similarly ensnared. And there is a risk that some of those who participate in terrorist activities overseas will return to Australia with an intent to do harm here.

We must of course have the powers necessary to investigate, prosecute and convict those members of our community who become radicalised and who participate in terrorist acts or planning. We should, as this bill ensures, have the powers necessary to restrain those who would participate in or support terrorist activity from threatening our society. Of course, we all agree on this. But Australia will be far safer still if we do not ever need to apply extraordinary legal powers to our own. We will be safer if we can inoculate our young men and women against radicalism, extremism and violence in the first place. We will be safer if we can prevent disaffection and make sure all members of our community feel part of the open, democratic society we want our country to be.

This task—building resilience—requires concerted government action. In response to the white paper in 2010 the Labor government set up a range of programs under the Countering Violent Extremism initiative. Those programs included the Building Community Resilience Program, which delivered grants to community groups across Australia to fund a range of programs designed to encourage people to resist or disengage from intolerant and radical ideologies. This program recognised that local communities are key in fighting radicalisation. Often it is local communities who first become aware that individuals are at risk of falling into radicalism. And it is local communities who are able, with proper support and resources, to bring those people back into the fold. The Building Community Resilience Program funded initiatives such as the Bachar Houli Cup, which provides an AFL program for Islamic young people and encourages engagement with mainstream community groups. It funded a range of programs, sometimes working through sport, as with the Bachar Houli Cup; sometimes through internet based programs; and sometimes through mentoring or counselling programs. A diverse range of programs were funded, and that was one of the strengths of the Building Community Resilience Program.

Countering violent extremism is sensitive, nuanced work. It is important that this work be innovative and adaptive, working through different programs to see what works best and to improve programs in response to our experience. In a horribly short-sighted decision, the Abbott government cut all funding to the Building Community Resilience Program in its budget earlier this year. No thought was put into this decision. No alternative way of carrying on the work of countering violent extremism was proposed. I am happy to say that the government revisited its decision as the present crisis in Iraq and Syria unfolded. On 26 August the Attorney-General announced that the Abbott government would return to the good Labor government policy work in countering violent extremism and would fund $13 million of Building Community Resilience programs. We welcome the government's reversal in this area. But I must say that it has now been more than three months since this change of policy was announced, and to date there is little indication that the government has made much progress on getting the Building Community Resilience programs back into operation. We do not yet have any detail on exactly what the government will be doing with that $13 million. The government should explain to the parliament and to the Australian people exactly what it is doing in this area.

This is, as I say, sensitive work. It is in some senses a new approach to counter-terrorism work, although there are precedents overseas—for example, in work done with white supremacists in the United States and in work with right-wing extremists in Germany. Wresting young men and women in our community away from violent jihadist ideology is a new challenge. It is one that comparable nations, such as the United Kingdom, are also trying to address through programs of this kind. It is important work that recognises the nexus between our national security and our social cohesion. The government should clearly explain what it proposes to do. And just as Labor has engaged constructively with the government in developing and passing new counter-terrorism laws, Labor will engage constructively to assist the government in implementing this more subtle side of our nation's fight against terrorism.

Of course, building resilience requires more than just programs and funding, although that is certainly important. It requires some of the more intangible products of government, too. If we are to build resilience in our community we must have leadership from our government and those who serve in it. The words they use, the values they profess and the approach they take to dealing with the community are just as important as any program. They are in fact probably even more important. When the Prime Minister stood up at a press conference in Canberra on 5 August with the Minister for Foreign Affairs and the Attorney-General to announce the government's response to the terrorist threat arising out of the conflict in Iraq and Syria, the Prime Minister said:

When it comes to counter-terrorism, everyone needs to be part of Team Australia. And I have to say that the government's proposals to change 18C of the Racial Discrimination Act have become a complication in that respect. I don't want to do anything that puts our national unity at risk at this time, and so those proposals are now off the table.

The Prime Minister said that the decision to shelve Senator Brandis's attack on the Racial Discrimination Act was a leadership call that he had made.

He went on to talk about what political leadership meant. He said:

and this is important—

In the end, leadership is about preserving national unity on the essentials ...

I have said this before, and I will repeat it: I absolutely agree with the Prime Minister on the importance of leadership in this context, on the importance of senior political leaders in fostering community cohesion and harmony. Unfortunately, the government has not lived up to this standard. The government has not shown the leadership we should expect.

In the last few months I have spoken with a number of representatives of the Muslim community across different parts of Australia. They are anxious to assist in combatting the threat of terrorism. Of course they are—these are their communities! No community wants its young men to travel abroad to be put in harm's way, to be exposed to the horrors of war, to be further radicalised and battle-hardened and, if they survive, to return to endanger their own communities and the broader Australian community. The government should be working with those communities. It should be standing alongside the Muslim community in this country.

I applaud the government for abandoning its attack on the Racial Discrimination Act. To its credit, the government recognised that this ill-conceived policy jeopardised community harmony at a time when harmony is what we need more than ever. But why won't the government take a firm stand on those in its ranks who continue to prosecute this attack? Government backbench Senators Bernardi and Smith have reopened this divisive issue with their own bill to amend the Racial Discrimination Act. We have seen the organisational wing of the Queensland Liberal National Party officially endorse a renewed attack on the Racial Discrimination Act. When will the Prime Minister admonish his colleagues? When will he take responsibility for what his own party says and does?

The Prime Minister has also failed to show leadership on the debate about the burqa, so irresponsibly opened up by Liberal backbenchers including the member for Dawson, George Christensen, and the usual suspect, Senator Bernardi. At a time when Muslim women feel, because of their dress, particularly conspicuous and vulnerable to attack and to discrimination, these two Liberals have done their best to exacerbate that fear. Appallingly, they have used the megaphones that they hold as federal politicians to single out Australian Muslim women as different and even dangerous. When the issue was put to the Prime Minister, the best he could manage was:

... I find it a fairly confronting form of attire. Frankly, I wish it was not worn.

The Prime Minister said, 'We can all have an opinion on the issue.' We certainly can, but the Prime Minister, I hasten to remind him, is not just a private citizen. He is not just a political operator for the conservative cause. He is supposed to be a national leader. He occupies the highest public office in Australia. His leadership role is particularly important with respect to Australian Muslims. The Muslim community is more intimately affected than any other community in our country by the problems emanating from the strife in Iraq and Syria. The broader Australian community and the Australian government must work together with the Muslim community to resolve those problems.

It is understandable that the government's new national security laws have caused some agitation in the Muslim community. In no small part this is because Senator Bernardi and the member for Dawson, and others like them, have done their best to sow division and distrust between Muslim Australians and the broader community. It is no surprise that some Australian Muslims feel targeted or singled out when our public debate stoops to this sort of low. But this agitation is also caused by a failure of government to clearly explain its new national security laws. As I have said, Labor has supported each of those laws, with appropriate amendments. But I must say I am disappointed with the way the government has failed to make the case for those laws. Those who watched this bill pass the Senate last week would have seen the Attorney-General flatly refuse to answer questions from the cross-bench about the substance of this bill. It fell to the Labor opposition to put on record the purpose and effect of the government's own amendments, arising out of the PJCIS report, which we supported. It fell to the Labor opposition to explain why further amendments proposed by the cross-bench were unnecessary or undesirable.

Labor is very happy to explain its position on this and other national security issues. But it is the role of the government to lead the debate. If the government does its job properly, Australians should feel reassured that the parliament, the government and the security agencies can be trusted to serve the national interest without trampling on individual liberties. If the government does its job properly, public debate should be sufficiently well-informed that wildly exaggerated claims about the effect of new national security measures can be calmly and logically dismissed.

As we have said consistently throughout recent months, Labor approaches national security legislation as a responsible opposition should. Having carefully considered the bill but forward by the government, and having ensured a number of significant improvements to that bill through the intelligence committee inquiry process, Labor has agreed to support the measures being proposed to bolster our national security laws. Here, as previously, Labor has insisted on proper scrutiny. Here, as previously, Labor has worked constructively as an opposition to assist the government in getting this bill right. Here, as previously, Labor is willing to support changes to our national security laws that are necessary and proportionate to meet the changing threats that our nation faces.

But I want to reiterate that we require more than legislation such as this to address the threat of terrorism. We require a coherent strategy from our political leaders to build a more cohesive community. We need to be intervening among disaffected and marginalised youth well before control orders and other extraordinary measures are required. I call on the government to explain what it will do on this crucial part of counter-terror policy.

I commend the bill to the House.

Andrew Nikolic (Bass, Liberal Party) Share this | Link to this | Hansard source

I welcome much of what the member for Isaacs said—in particular, the bipartisan support for this bill which I have personally experienced as a member of the Joint Parliamentary Committee on Intelligence and Security. But let me just correct one inaccurate component of his speech where he spoke about engagement with the Muslim community. I can assure the House and those listening that the Prime Minister, the Attorney-General and other members of the coalition such as Senator Fierravanti-Wells have regularly engaged with senior Muslim leaders across Australia.

Let me commence by providing some context as to why this particular bill is important. In September 1991, I led a United Nations mobile team in South Lebanon called Team Zulu. My partner and I one day, in about the middle of September 1991, were working east of the main United Nations base at Naqoura, and we were called up and directed by radio to move very quickly, as quickly as we could, to the site of a major incident that had occurred just north of the Israeli border at a crossing point called Rosh HaNikra.

What had happened was: three heavily armed Palestinian terrorists had landed on the beach. They had come via the sea from the Mediterranean, and the Israeli Defence Force and South Lebanese Army personnel had quickly responded to that threat. The terrorists, in response, took some UN personnel hostage at gunpoint, and they retreated into a small shed, very close to where their boat had landed on the beach. The UN personnel had simply been running up and down the beach. There was a road linking the UN camp with the crossing point at Rosh HaNikra, and they were running along for fitness before they were taken hostage at gunpoint and became human shields. Very quickly, an Israeli gunboat had cut off the terrorists on the sea side and Israeli Defence Force personnel and South Lebanese Army personnel cut them off on the land side, so there was no escape, and it was a very tense situation.

Soon after that, my Irish partner and I arrived on the scene with an Arabic speaking interpreter, and our intent was of course to try to negotiate the release of those UN personnel that had been taken captive. The situation escalated very quickly when one of the gunmen came out of the shed and commenced firing, which initiated a broader escalation of gunfire from both sides. One of our UN colleagues, a Swedish soldier of the United Nations Interim Force in Lebanon, was killed, as was one of the terrorists. Five Swedish and French UN troops and one further terrorist were wounded, and the third terrorist was captured by the Israeli Defence Force.

As I reported on my radio what had happened, we were quickly diverted to another incident site, this time inside the UN camp, because, unknown to us, another small motorised boat, a Zodiac, had landed with three more terrorists on the UN beach. They had been overpowered and taken captive by the UNIFIL patrol in the area, and my Irish partner and I were then further tasked to question those terrorists and produce a report for the United Nations chain of command.

All these years later I reflect on what an insight that gave me into the psyche of some of the people that this bill is meant to respond to. The three men that I questioned belonged to the Al Fatah wing of the Palestine Liberation Organisation, and their boat was crammed with AK-47s, many filled magazines, hand grenades, knives, explosives and RPG-7s, or rocket-propelled grades.

Their mission was to land on the Israeli side of the border, near a beautiful coastal town called Nahariya, and they were going there to, in their words, kill as many Jews as they could before they themselves were killed. I had a particular interest in that beautiful coastal town of Nahariya because, when I was not working in South Lebanon, that is where I lived with my family—my wife and two young daughters who were one and two at that stage—about a street away from that beach, which we often frequented. I asked the terrorist cell leader: how would he distinguish between the Jews and visiting Christians from Australia? His response was that his God would guide their bullets.

Their mission, in essence, was irrational, mindless, indiscriminate killing of innocent people. I can still recall, when things settled a day or two later and I had a moment for reflection, thinking how lucky we were in Australia not to have people like that in our country. Those days are gone. Those people are here. They are in England, Canada, the United States and in other western countries just like ours—people who are similarly and inexplicably motivated to engage in the mindless, indiscriminate killing of innocent civilians.

Fusilier Lee Rigby was run down and publicly butchered in East London. Corporal Nathan Cirillo was murdered in Ottawa while guarding Canada's war memorial. A week before Corporal Cirillo's death, two soldiers were run down in Quebec by a radicalised individual. Here in Australia, way back in 2005, we had the Operation Pendennis arrests, now almost a decade ago, uncovering terrorist cells in Melbourne and Sydney that were amassing guns, ammunition and bomb-making equipment.

A decade later, Australia's terrorism alert level has been lifted to high, 60 to70 of our citizens are in Iraq and Syria committing terrorist acts and learning the sorts of skills that we do not want to be exported back to our country. We have seen the police raids during Operation Appleby, foiling a plot to commit violent acts in Australia, including a plan to snatch a random member of the public, to drape them in a terrorist flag, to behead them, to tape it and to upload that video to the internet.

So when our intelligence, defence and law-enforcement agencies tell us that they need more measures to respond in an agile and adaptive way to an agile and adaptive enemy, we must take them seriously. We must acknowledge that their starting point is a desire to keep us safer.

I am pleased to say, as a member of the Parliamentary Joint Committee on Intelligence and Security, that there is the sort of bipartisanship that the member for Isaacs mentioned during his speech—an acknowledgement of how serious our current and anticipated security environment is into the foreseeable future. I believe, as the member for Isaacs does, that our committee has found a sensible bipartisan path between those necessary changes and the civil liberties of all Australians. Importantly, the government has either accepted or accepted in principle all of our committee's recommendations in respect of this bill.

I would like to touch briefly on just why the contents of this bill are so critical. The resurgence of terrorism—of Daesh—in Israel, in Iraq, in Syria and more broadly in the Middle East, is a direct threat to our way of life and no nation is immune.

To reject the measures in this bill is to deny that compelling fact and to lend de facto support to the emerging terror networks.

In the main, the measures in this bill are already being used, albeit in lesser ways, by security agencies and police forces in Australia and around the world. It is important to note that these measures pose no threat whatsoever to peaceful, law-abiding Australian citizens. Indeed, these measures improve the ability of our law enforcement and intelligence agencies to respond to addressing urgent operational needs and to apply the lessons that have been learned subsequent to the introduction of the previous two tranches of legislation. They include lessons learned from our troop deployments to Iraq and the exploitation of information from recent operations like Operation Appleby, which disrupted an alleged terrorist attack in Sydney.

Make no mistake, the terrorist threat is agile and adaptive. We must therefore help our intelligence, security and legal agencies cycle through their decision and response options more quickly than that agile adversary. This parliament owes the Australian people nothing less.

Singly and in unison, the measures in this bill represent a major step on the road to making all Australians safer. I know, from the public hearings undertaken by our committee, that some may think elements of this bill are excessive. But, set against the backdrop just presented, the government rightly considers them to be both necessary and essential to protecting our precious liberty and way of life.

The essential bottom line is threefold. Firstly, the enhanced control order regime in this bill allows the Australian Federal Police to seek control orders in relation to a broader range of individuals of security concern and to streamline the application process. This is focused particularly on the enablers—the recruiters, the urgers, the funders of terror—who are just as bad, if not worse, than those they coerce or mislead to wanton acts of aggression. Secondly, the bill facilitates heightened interagency support and cooperation, most notably between ASIS and the ADF, including on military operations.

The following points are noteworthy in relation to this enhanced measure. Contrary to some wild claims from the Greens and others, these amendments do not enable ASIS to kill Australians or others. There is no change to the existing limitation ASIS operates under in subsection 6(4) of the Intelligence Services Act. What we are doing is enhancing ASIS's ability to contribute to the Australian Defence Force's intelligence collection efforts in places like Iraq. But, importantly, in using any ASIS provided intelligence, the ADF is bound by its own rules of engagement, which are developed in consultation with the Attorney-General's Department to ensure compliance with our domestic law and our obligations under international law. Without that intelligence cooperation, the force protection of our troops is potentially put at risk. As a veteran of the wars in Iraq and Afghanistan, and as the father of a daughter who has undertaken two tours of Afghanistan, let me say what a welcome outbreak of common sense this measure is. Thirdly, we enhance arrangements for the provision of emergency ministerial authorisations to intelligence agencies to undertake activities in the performance of their statutory functions. Together, all this means that law-abiding Australian citizens, who enjoy the relative tolerance and freedoms of our unique civil society, need not fear any of these changes.

By the range of steps and measures in this bill, the government does six things. Firstly, we support and protect our sovereign national borders. Secondly, we support our security agencies, including, not least, our Commonwealth and state police forces. Thirdly, we identify, at the very earliest opportunity, possible domestic terrorist threats to Australia, including individuals and terror groups or cells. Fourthly, we prevent, detain, or, at least, constrain the movement and transit of would-be foreign fighters. Fifthly, we reinforce the need for heightened national vigilance by all Australians, in response to the clear risks confronting our otherwise peace-loving communities. Lastly, we support and position our nation's relevant counter-terrorist bodies and agencies to work in closest collaboration with those of our allies, partners, and other legitimate governments of the world, the intent being to help restore civil normalcy at home and abroad, or, at the very least, to contain and limit the ongoing threat posed by transnational terrorism.

Both sides of the debate so far have talked about some of the important safeguards and protection measures that are implicit in this bill, including the existing control order regime requiring both the Attorney-General's consent and a court order, which will continue to apply. The bill includes implementation of the PJCIS recommendations, requiring the Independent National Security Legislation Monitor to review the control order regime, particularly safeguards. All of the existing safeguards and oversight mechanisms in the Intelligence Services Act 2001 continue to apply, including in relation to the amendments to better facilitate ASIS assistance to the ADF. These include the statutory thresholds for the granting of authorisations, ministerial reporting requirements and the independent oversight by the Inspector-General of Intelligence and Security.

Strong oversight mechanisms will also apply to the arrangements for emergency ministerial authorisations. Ministers will have to be notified within eight hours where an agency head has granted an emergency authorisation, in the event that no relevant ministers are readily available or contactable to consider or issue an authorisation. Where a minister has provided oral emergency authorisation, a written record of this decision must be made. As the member for Isaacs said, the IGIS will provide close oversight of these emergency authorisations, as will the committee that we both belong to, and the Parliamentary Joint Committee on Intelligence and Security will also be notified of all emergency authorisations.

As I have said before in this House, the resurgent barbarity of transnational terrorism and the direct threat it poses to Australia and our region means that doing nothing is not an option. While our troops are helping degrade Daesh forces whenever they concentrate in the field in Iraq, we need to support that effort domestically and legislatively with policies designed to safeguard homeland Australia. We must harness the abhorrence that all Australians—Christian and Muslim alike—hold for this perverted creed of wanton terror. I ask the House to endorse the government's domestic counterterror initiatives with understanding and conviction and to give them widespread bipartisan support. I commend the bill to the House.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Everyone in this parliament, no matter where you sit—whether in the government, the opposition, or on the crossbenchers—wants to keep this country safe. There is absolutely no dispute about that. Likewise, I agree with the previous speaker. I think everyone here in this parliament would look upon the acts of terrorism and horror that are being perpetrated around the world with disgust. And we want to do everything we possibly can to ensure that they are not visited on our shores. But, if we are to have a serious debate about how we stop terrorism from finding its way to Australia then, presumably, we would have serious discussions here about why people within this country, who are sometimes born and bred in this country, decide that they no longer have an attachment to this country and want to do us harm. We need to ask some serious questions about why that is happening and what we can do to stop it. We need to ask serious questions about whether sending Australia to war is, in fact, going to make the country less safe. We need to ask serious questions about whether getting Australia involved in a war—a conflict—that is not ours potentially increases the risk of an attack here on home soil, or an attack on an Australian citizen somewhere else. These are the questions we need to be asking.

One other truism is that as well as everyone wanting to keep Australia safe—no matter which political perspective you come from—we also, presumably, value Australia being a democracy. We value those things that for many others, according to the government and according to the opposition, are the reasons that people want to attack us—namely, individual liberties. The fact is that we have a strong tradition in Australia. It is part of our common law tradition that the government does not have the right to take you, as an individual, and lock you up when you are not suspected of having done something wrong, if you are not on your way to being charged or put through a judicial process. What distinguishes us from other countries is that the government is not allowed to pick someone off the street and hold them without a claim that they have broken an Australian law, and without a trial then ensuing. That is what, in part, defines us. That is what we have to defend.

What that means is that whenever there is a suggestion that Australia, or Australians, are at risk, we need to make an assessment about whether that justifies giving up some of those rights and if so, for how long. The difficulty is that we know that security agencies will always want more power. That should come as no surprise. It is the same with every government department. Ask them if they would like a greater remit and they will say, 'Yes; where do I sign?' That is why it is absolutely critical that, in times when emotions and fear are running higher than they otherwise would, we in this place have to make sober judgements and sober assessments.

Whilst I do not doubt the intentions and bona fides of the experience of the previous speaker, I was distressed to hear him say at the end that we must harness the hatred people feel towards the likes of ISIS in order to pass this bill. That is the wrong approach. That approach is saying that, because something terrible is happening elsewhere—something that Australia might have contributed to by going over and destabilising that region for the last decade or so—people automatically should be prepared to give up rights and liberties that they have enjoyed for a very long time, and which, once given up, they will probably never get back.

And this is happening in an environment where we do not have an independent national security legislation monitor to oversee what the government is doing. The reason that is so important is that in the past the Independent National Security Legislation Monitor has spoken out against exactly these kinds of measures. That is important to note, because while some in the government and elsewhere may say that you would expect critics to always make these points, when the Independent National Security Legislation Monitor says, 'Hang on; what you are about to do with a proposal like control orders is to enable someone in a government agency or a security agency to impose limitations on you and your freedom,' we should listen. When the Independent National Security Monitor—not just the Greens, civil libertarians and the law bodies in their states—says, 'That is not a good idea,' we should listen.

Instead, the government, with the opposition's acquiescence, is saying, 'We are not going to appoint a national security legislation monitor, who might come before the parliament and tell you exactly these things; we are going to rush this bill through now.' It comes as no surprise that a coalition government wants to take away individual rights and liberties. They gave away the 'liberalism' in their name long ago. What does come as a bit of a surprise is that an opposition, willing to be a small target, is so quick to sign up to these proposals.

What do we know about this bill? We know that the control-order regime in this bill allows the imposition of controls on an individual, limiting their freedom without needing to follow the normal and long-established criminal law processes of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt on the basis of evidence. We know that a control order under this legislation can impose a number of obligations, prohibitions and restrictions on the person who is the subject of the order. These include where a person must stay and when; preventing a person from going to certain places; preventing a person from talking to or associating with certain people; preventing a person from leaving Australia; requiring a person to wear a tracking device; prohibiting access to, or use of, specific types of telecommunications, including the internet and telephones; preventing a person from possessing or using specified articles or substances; and preventing a person carrying out specific activities, including in respect of their work or their occupation—their livelihood. Critically, these control orders can be applied to people who have not been charged with a criminal offence—you do not have to have been charged with anything to have these apply to you—and even to people suspected of harbouring a criminal intent.

It is because they are so broad and go well beyond what might be argued to be a legitimate narrow need to target terrorism, for example, that there has been substantial criticism from across the political spectrum and from civil liberties and legal groups of these provisions. This bill would make it possible to get a control order if a police officer suspects on reasonable grounds that it would prevent the provision of support for or facilitation of a terrorist act or hostile activity overseas and dilute the existing safeguard that requires the court to consider whether each obligation, prohibition or restriction contained in the control order is proportionate and necessary. It would also make other procedural changes to make control orders easier to get. In that respect, it is no wonder that the Independent National Security Legislation Monitor has been critical of these provisions.

The Greens have moved some amendments in the Senate to try to address this, and some other provisions have been amended in the Senate, but the guts of this bill still remains. It is at exactly these kinds of moments, when people are, rightly, fearful for their safety and that of others whom they know here and overseas, that we need to step back and not make a decision informed by fear but actually ask a fundamental question: are we giving up those things that we think define us as a society? When others from across the political spectrum and the experts in the area say, 'These kinds of control orders are not an essential or helpful part of Australia's comprehensive response to terrorism,' we should listen. But the reason we have not listened here is that there is a committee, which is a club of the two old parties, who walk in lockstep on this issue, that has been quite happy to say, 'If the security agencies have asked for it, we'll give it to them.' Because of that, in this parliament, either in this chamber or as a legislature, we have not paid sufficient attention to those who have been saying, 'No, you'll be giving up something that is actually quite fundamental. You're giving up individual liberty and you are extending to our security agencies more extensive power than they have had before—and you are doing it in a situation where there is no Independent National Security Legislation Monitor and where the only supposed oversight is a committee that is a club of the two old parties, who agree on all of this anyway.'

It is for that reason that those parts of this bill cannot be supported and should not be supported. We should not be using conflict in Iraq and Syria that we helped start as an excuse for passing these laws and taking away individual rights and liberties, because that is what will be done if this legislation passes here. If we were serious about stopping terrorism, we would have a searing examination of Australia's role, together with others, in not only creating the instability in Iraq and Syria that helped the likes of Daesh gain a foothold but, actually, in some instances being part of coalitions that provide arms to groups that then find their way into the hands of the likes of ISIS. We would be asking: is more war and more intervention in the Middle East going to solve it? Or might that just keep it going for a bit longer so that we find ourselves back here in another five or 10 years facing similar conflicts and similar threats, with the government saying, 'We want you to give up more of your civil liberties because, clearly, you did not give up enough last time'? If we keep going down that road, then, slowly but surely, we will lose what defines Australia as a free and democratic country. We cannot keep giving up our rights and our freedoms to deal with this threat. We have to attack this threat at the source and we have to ask the honest questions about whether Australia's involvement is actually making this country less safe and whether continuing to go and wage wars in other parts of the world creates exactly the kind of instability that allows these kinds of lunatics in the likes of Daesh to gain a foothold and to be seen as somehow an attractive option. That is the direction that we are going in.

The Greens will be steadfast in saying, 'The safety of Australia should not come at the expense of giving up our rights and the things that define us.' If we want to make Australia safe, which we all do, let's be serious about it. Let's be serious about it and not participate in wars that give these terrorists the opportunity to gain a foothold and, in some instances, legitimacy—because that is exactly what is happening. Let us stop fuelling this instability and terror on the other side of the world and let us ask whether or not we have in fact helped arm some of these mobs. That is exactly what many independent reports are saying—that the forces that have gone in, supposedly with good intentions, have in fact helped make this threat worse. If we were serious about combating terrorism and making Australia safe, that is what we would do. We would not use it as a pretext to take away people's liberties.

Tony Pasin (Barker, Liberal Party) Share this | Link to this | Hansard source

I rise to speak in support of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, but, before I do, I must say that I sat listening intently to the contribution from the member for Melbourne. In effect, he is advocating a position of soft diplomacy with respect to the threat of terrorism across the globe.

With respect to the member for Melbourne's contribution, the do-nothing option is simply not an option. To sit here and listen to that undermines the very good and collaborative bipartisan work that has been undertaken in this place, on this legislation and other things, regarding the threat of terrorism across the world.

This bill will enhance the ability of Australia's law enforcement and intelligence agencies to take timely action in relation to Australian persons who are—or indeed are suspected of being—involved in terrorism related activity. These are persons who are enabling or supporting terrorist activity and persons who are suspected of fighting terrorist organisations in foreign conflicts. This bill will address urgent legislative limitations identified in the context of present or recent operational activities, including counter-terrorism investigations and the activities of the Australian Defence Force against Daish.

The first duty of any national government is the protection of its citizenry and its territorial integrity. The sad reality is that we live in an age where both are under threat, and it is appropriate that we take steps to ensure that those charged with providing our national security have all the tools necessary to do their tasks. It was interesting to listen to the contribution of the member for Melbourne. He is someone who purports to point to expert analysis on very many other topics but is rejecting the expert analysis being provided to this government by security agencies across the spectrum.

Nation-states face a multitude of threats that are unprecedented, both in number and form. At one end of the spectrum we face the rise of Daish—that heinous death cult that brings to mind the worst excesses of totalitarianism and seeks to expand its sick and twisted ideology as far as it can. It has the vast economic resources of a national government, the military capacity of an army and the mindset of a fanatic. This body poses an existential threat to our country and to our national interests in the region. It is a breeding ground for terrorism and seeks to recruit people not only by coercive force in territories they have seized but also in seducing people in our own country—either to strengthen their hand over there, or for those people to return to our shores and wreak havoc upon our own population.

This leads me to the other end of the spectrum of threat: individuals acting without specific command-and control-structures being able to execute acts of terror to generate fear and force us to change our way of life. Sadly, we have seen an example of this in Australia, with the recent attack in Victoria of two police officers. We have also seen the tragedy in Canada where their national parliament was subject to an attack.

These types of so-called 'lone-wolf' attacks are extremely dangerous, because they require many more resources and planning than, say, the 9/11 style terror operation. Describing these threats as lone-wolf attacks is misleading, because even if a terrorist does not enjoy direct operational assistance relating to a specific attack they often have assistance through financial support, advice, training, non-specific planning assistance, housing communications and various other means, which enable them to carry out their evil deeds.

In order to reduce the threat of Daish, our Defence Force is currently engaged in combat operations against it. I want to take the opportunity to say this to the Australian troops: you enjoy my wholehearted support for what you are doing and I will do everything in my capacity to give you the support you need. Accordingly, I support this legislation, which seeks to help dismantle the support structures for those who would perpetrate terror and who are engaged in attacks against ADF personnel.

The measures in the bill have been included as a result of instances of operational need, identified by relevant agencies, subsequent to the introduction of the previous two tranches of legislation. In the case of the proposed Intelligence Services Act amendments, the need for amendment is urgent. This is as a result of recent developments in the security environment—primarily due to the government's decision to authorise the ADF to undertake operations against the Daish terrorist organisation in Iraq.

There is urgent need to make amendments to the Intelligence Services Act to ensure that intelligence services can undertake relevant activities in support of the ADF operations in Iraq against the Daish organisation. These activities are anticipated to include the collection of intelligence in relation to Australian persons who are known or suspected participants in hostilities and particularly of those who are known or suspected of fighting with or alongside the Daish terrorist organisation.

Such intelligence is likely to prove instrumental to these operations. This includes the protection of ADF personnel, members of other defence forces and civilians from death or serious harm as a result of terrorist or other hostile acts committed in the course of this conflict. The proposed amendments are directed in two key areas. Firstly, the primary purpose of the amendments is to better facilitate ASIS in providing timely assistance to the Australian Defence Force in support of military operations in its cooperation with the ADF on intelligence matters.

The proposed amendments make explicit that such support and cooperation is a function of ASIS, consistent with explicit functions to this effect inferred upon the other two intelligence-service agencies: the Australian Signals Directorate, ASD, and the Australian Geospatial-Intelligence Organisation, AGO. These measures also make a small number of amendments to facilitate the timely performance by ASIS of this function. These concern the provision of ministerial authorisation by the minister responsible for ASIS, in relation to a class of Australian persons, and enabling the Attorney-General, as the minister responsible for ASIO, to provide agreement to an authorisation in respect of individuals falling within a specific class of Australian person.

All of the existing safeguards in the Intelligence Security Act will apply to the pool of performance of the new function. These include the statutory threshold for granting of authorisations, ministerial-reporting requirements and independent oversight of the Inspector-General of Intelligence and Security, IGIS.

Secondly, the proposed amendments also remedy practical limitations identified in the arrangements for emergency ministerial authorisation, which apply to ACIS, ASD and AGO. The amendments make provision for the contingency that the relevant minister may be temporarily uncontactable when there is an urgent previously unforeseen need to collect vital intelligence.

Debate interrupted.