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

Labor has for over a century demonstrated its understanding that it is a paramount responsibility of all parliamentarians to keep our community safe and our nation secure. We in Labor have demonstrated this commitment by working in a bipartisan way, whether in government or in opposition, to ensure that our security and law enforcement agencies have the powers and resources they need to keep our communities safe.

While we will not always agree with our political opponents on how Australians can be best protected, Labor has a long track record of engaging constructively in the political debate about matters of this kind. These are debates that all healthy democracies should have. And because we in Labor do not believe that national security should ever be manipulated or exploited for partisan political purposes, we do not seek to politicise any disagreements that we may have with the government on national security matters. We always seek to resolve those disagreements through constructive and considered debate.

Labor also acknowledges that it is the prerogative of the government of the day to decide how it wishes to organise the executive government and its agencies. This is generally referred to as the 'machinery of government'. The present bill, the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017, is essentially a procedural bill that implements the decision of the Turnbull government to radically reorganise some of our nation's national security and law enforcement agencies.

This bill was carefully examined by the Parliamentary Joint Committee on Intelligence and Security, which recommended that it be passed, subject to an amendment being made relating to the role of the Inspector-General of Intelligence and Security. In light of that recommendation and because this bill is essentially a procedural bill that implements the Turnbull government's decisions for machinery-of-government changes, Labor supports the passage of this bill.

However, Labor also wishes to place on the record several of its concerns about the creation of the changes to our national security and law enforcement framework that this bill implements. We do this because the machinery-of-government changes that this bill helps to legally implement are not minor or technical but are rather a significant reworking of our national security and federal law enforcement framework. This is openly acknowledged by the government. As the Prime Minister declared in his second reading speech on this bill on 7 December last year:

… these initiatives represent the most far-reaching reorganisation of our national security architecture since the Hope royal commissions of the late seventies and early eighties.

Labor's primary concern is that the government has struggled to explain why the sweeping changes to be brought about by this bill are required at all. For decades, both Labor and Liberal governments have expounded on the efficacy of our existing national security framework, lauding the existing system of cooperation between agencies and their many successes in detecting and stopping terrorist attacks and in dealing with serious crime. As the Prime Minister said, again in his second reading speech on this bill last year:

To those who argue that the system is not broken, I can reassure you that you are absolutely right.

We have been incredibly well served by our intelligence, security, and law enforcement agencies.

And just last year, a comprehensive review of our intelligence services was conducted by Mr Michael L'Estrange AO and Mr Stephen Merchant PSM, the unclassified version of which was released on 18 July 2017. That review did not in any way recommend the kinds of changes that the Turnbull government is now putting in place. In many respects, the changes brought about are an experiment with our national security. Given how effective our agencies have been to date in keeping Australians safe, we in Labor are concerned that the reasons for this experiment have not been sufficiently explained by the Prime Minister. I also note that the concept of a department of home affairs was previously considered by Prime Minister Howard, Prime Minister Rudd and Prime Minister Abbott. After careful consideration, each of those prime ministers rejected the proposal, yet that is the proposal that the member for Wentworth is now enacting. It is not clear to Labor what has changed, and the government has not been able to explain it.

One key effect of the new arrangements is to concentrate power that was once shared between a number of ministers and their departments into a single minister and a new super department called the Department of Home Affairs. Most democratic nations are very careful to avoid the concentration of power in a single entity or in a single person, instead favouring systems with checks and balances. This is particularly the case with the coercive powers and intrusive capabilities that our law enforcement and security agencies exercise, because concentrating those powers and capabilities under a single department and its minister can only weaken the checks and balances needed to protect Australian citizens from the inappropriate or unlawful exercise of those powers and capabilities. Many of our most senior security experts have also pointed out that the concentration of power may weaken our national security by reducing the contestability of key decisions. Under the arrangements being put in place by this bill, a single minister, the member for Dickson, Mr Dutton, will alone be responsible for complex decisions that have until now been debated by multiple ministers who have shared responsibility for our nation's security.

I also note that the government's approach to legislating the various changes to the existing acts necessary for the creation of the Department of Home Affairs has been somewhat haphazard. The government first stated its intent to establish the Department of Home Affairs in July 2017. On 7 December 2017, the Prime Minister second-read this bill, which at that time amended only four acts of the parliament. Subsequently, following the government's disclosure in evidence to the Parliamentary Joint Committee on Intelligence and Security that there were a further 33 acts of parliament that required amendment in order to effect the creation of the portfolio, the Attorney-General proposed that the bill have a further 311 amendments to the primary legislation inserted into it.

The opposition was given notice of these substantial further amendments. Amendments (2) to (27) are changes to schedule 1 of the bill to implement the first and second recommendations the PJCIS set out in its advisory report on the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017—that's the first report that the committee produced. Amendment (28) incorporates a new schedule 2, which amends some 32 acts and provides in large part for minor administrative amendments effecting the transfer of powers from the Attorney-General to the Minister for Home Affairs. These further amendments were also referred to the Parliamentary Joint Committee on Intelligence and Security, where they were considered. They were reported on by the intelligence committee, which recommended that the amendments should also be passed. In keeping with Labor's bipartisan commitment to national security, Labor accepts that recommendation of the intelligence committee to the effect that the foreshadowed amendments to this bill should be passed. I note that the committee stated at paragraph 1.27 of its report on this bill:

…machinery of government changes are a matter for the government of the day. As such, it is not within the remit of the Committee to consider the broader policy decisions behind the changes, but to scrutinise the amendments as proposed.

In conclusion, and consistent with the intelligence committee's view, I reiterate that Labor acknowledges the prerogative of the executive to determine the machinery of government and supports this bill as implementing changes brought about under that prerogative.

Labor will carefully monitor the operation of these new arrangements and listen carefully to the advice of your security agencies as these arrangements take effect to make certain that the new framework operates as the government intends and is in fact a benefit to our nation's security. I commend the bill to the House.

Ted O'Brien (Fairfax, Liberal Party) Share this | Link to this | Hansard source

It is a pleasure to rise today to speak to this bill. I was somewhat disappointed by the comments from the member for Isaacs, who has suggested that this bill is an experiment. He uses the word 'experiment', a word, I think, that uncovers Labor's clear willy-nilly experimental approach on matters of national security.

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

What are you talking about?

Ted O'Brien (Fairfax, Liberal Party) Share this | Link to this | Hansard source

The member for Isaacs wishes to know what it is I'm speaking of. Well, I would like to ensure that the good member is advised that there were 50,000 illegal arrivals in Australia under the last Labor government on 800 boats, and at least 1,200 people died at sea; 1,200 people drowned at sea. There has not been an illegal boat arrival in Australia for 1,381 days, as of this morning. Over 3,481 visas of serious criminals have been cancelled, and yet the member for Isaacs wishes to interject, in absolute confusion. This sort of policy area should never be an experiment, because we are talking about national security.

That is why I am rising to support the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017. Indeed, there is no more fundamental responsibility of a federal government than the security of this nation, nor is there any greater expectation from the Australian people of their federal government than doing everything in its power to ensure their security and that of their families. This is what underpins the establishment of the Home Affairs portfolio and the bill we see before us today, the most significant reform to our intelligence and national security system in decades.

Our security agencies face a never-ending battle to protect Australians against the ever-changing face of terrorism and to defend our national security and our freedoms. Gone are the days when our enemies were relatively easy to identify, wearing uniforms of an opposing power, standing on foreign shores accessible only by boat or plane. Today's enemies are far better camouflaged and include cyberhackers, terrorists and lone-wolf attackers. They are elusive, hiding online in the dark web and at times in our very neighbourhood. The world today is very different from that of 40 years ago, when much of our intelligence infrastructure was conceived as a result of the Hope royal commission. In 2016, 77 countries experienced at least one terrorism related death, more than any other year since 2001. The rise of the internet gives terrorist groups and criminal organisations unlimited global reach. We're seeing increased vulnerability of critical infrastructure, including financial systems, to cyberattack, and we all know the increase in violent extremism now shaping the world we live in.

Recognising these threats and the complex changes faced by our security agencies in responding to them has led to this bill and the establishment of the Office of National Intelligence and the Department of Home Affairs. These are changes that further strengthen our security arrangements as well as the integrity and oversight of our security agencies, changes that recognise the need for closer cooperation between our domestic security and law enforcement agencies, and changes that enable an adaptive infrastructure, limit duplication, and set priorities and shared security goals across the portfolio. Although we speak of changes, I'm sure all of my colleagues would agree that Australia's law enforcement, intelligence and security agencies are nonetheless second to none. Indeed, Australia's domestic situation is more secure than ever, with—and I repeat for the sake of the member for Isaacs—no illegal boat arrivals in almost four years, or, more precisely, 1,381 days as of this morning; with more than 3,481 serious criminals having had their visas cancelled since December 2014; with national security agencies having been responsible for 37 counterterrorism operations since September 2014, resulting in 85 people being charged with terrorism and other offences; and, more importantly, with the prevention of six attacks and 14 major counterterrorism disruption operations in response to potential attacks planned here in Australia.

We do face challenges, though. There are more than 100 Australians fighting or engaged with terrorist groups in Iraq and Syria and 190 people providing support and funding from Australia. Our intelligence agencies are currently managing around 400 high-priority counterterrorism investigations, and so it is essential that we continually invest in and support our national security agencies. This bill before the House today provides for this continued investment to ensure we stay ahead of the game, ahead of the terrorists, ahead of the people smugglers and ahead of the cyberhackers. Furthermore and importantly, this bill confirms that each agency retains full statutory independence while reporting to one single minister, the Minister for Home Affairs—a single point in cabinet who will provide comprehensive and integrated advice to government on the challenges and threats we face and how we should respond.

Strengthening the Attorney-General's capacity is also an essential element of the changes reflected in this bill. This bill sees the Attorney-General take responsibility for the Inspector-General of Intelligence and Security and for the Independent National Security Legislation Monitor. This will provide oversight and accountability to give Australians confidence not only that our agencies will safeguard our nation's security but that they will do so respecting the rights and freedoms of all. Security and freedom, it must be said, are not conflicting or contradictory forces. Despite the usual neo-Marxist drivel coming from the Australian Greens, who claim that Australia is becoming a police state, there is no dichotomy between security and freedom in this country. To claim otherwise is just a shallow excuse. Failing to support a robust national security apparatus is nothing short of an abrogation of duty—

Mr Bandt interjecting—

Thank you to my honourable colleague from the Greens, who has made a positive contribution finally in this House. Indeed, it shows precisely that, when it comes to the substance, why the Greens are actually not fit for government—because they refuse to support the robust national security apparatus being put forward in this bill. Security and freedom are in fact interrelated and reinforcing and must, therefore, be considered together, side-by-side, in balance and in full realisation of the threat posed. To better enable and empower this relationship is the clear intention of the reforms put forward in this bill. Indeed, to be free is to be secure, and to be secure is to be free.

It's worth noting that we are not alone in this fight. After all, centralised intelligence coordination has been established in the USA, the UK, Canada and New Zealand—key allies of ours in the fight against global terrorism and criminal organisations. It's also worth noting that this bill enacts a key mandate of the 2017 independent intelligence review to take 'individual agency excellence to an even higher level of collective performance through strengthening integration across Australia's national intelligence enterprise'.

This bill will ensure better strategic planning and coordination for our immigration, border protection, law enforcement and domestic security agencies while preserving their operational strength and independence. It will allow them to continue to detect, prevent and respond to acts of terrorism and organised crime within Australia—threats that are ever evolving and complex, driven by new technologies and the expansion of cyberspace. This bill underpins the coalition government's determination and commitment to keep all Australians safe and secure—a fundamental right enjoyed by all Australians. It's on this basis that I'm happy to commend the bill to the House.

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

I'm no great fan of George Brandis, the former senator and former Attorney-General. We strongly opposed the laws that he got passed through this place to give greater surveillance powers over everyday Australians' activity online. Watching him in that famous Sky interview trying to explain what metadata was, as a justification for this big power grab, was like watching my dog trying to play chess. It was an absolute debacle from a government that was intent on power grabs without understanding why they were seeking what they were seeking.

When George Brandis, who has been on the inside of this government as the nation's highest law officer, says, 'Be worried about the conservatives within this conservative government and their ideological right-wing bent,' and says when he has been out of the job for five minutes, 'I'm worried about what's happening inside this government,' and when the Deputy Liberal leader, the member for Curtin, organises front-page articles in the Herald Sun to say that she is worried about the Minister for Home Affairs, Peter Dutton, increasing his power in this country, including the power to spy on or surveil ordinary Australians, then alarm bells should be ringing. It's not just the Greens who are saying that if there's someone who deserves the full oversight of parliament and the full scrutiny of the people it's Peter Dutton, the member for Dickson; now his own colleagues and former colleagues are saying that this man cannot be trusted with the greater power to surveil everyday Australians. When they are prepared to say that something is going on in this government, we as a country should all be worried.

What is happening here is that this weak Prime Minister is doing what the Minister for Home Affairs has organised and got the numbers for. He has forced upon the Prime Minister this power grab over security matters—the likes of which we have not seen before. It is no wonder that his current and former colleagues are doing everything they can short of open mutiny to say: 'Hey, Australia, have a look at what is going on here. Something is deeply wrong.' As you go through the bill and the government's proposed amendments to the bill, you will understand exactly what is at stake.

Let's take the question of adverse security assessments, for example. We have seen people languish in limbo in detention centres because they were caught in a diabolical catch-22. They were told they were not eligible to come to Australia because they were a national security risk. When they asked to see the details so that they could respond, they were told: 'No, we can't tell you. It's an adverse security assessment from ASIO. We can't give you the right to respond.' So many people languished in detention for years without any justification all because they were in the situation where they could not respond to an assessment that was put on their file. They had no rights to challenge it, no rights of appeal. But at least that was not being done by the minister responsible for their immigration detention. At least there was another government department and another government agency. As a result of some of the pressure that was brought to bear over many years, we saw many instances of the notices being withdrawn and people being able to move out and live in the community. But under this bill and these sets of proposals, the home affairs minister is now going to accrue both powers: the power to keep someone in detention and also the power to say that they're a security risk but not give them the chance to respond. Those are powers that restrict peoples' liberty and movement, and these are people who have not committed a criminal offence. We are giving to Peter Dutton, the member for Dickson, unfettered power that will not be able to be subject to review by anyone, and that should send a shiver down the spine of everyone in this country.

It doesn't just stop there with respect to adverse security assessments. There are a number of agencies that are now going to come under this minister's control. At the moment, with respect to people who are on welfare, who are doing it very tough and trying hard to make ends meet, there are certain situations in which someone's social security payments can be taken away from them not through the person necessarily having done anything that was proven wrong by a court but just because of ministerial discretion. At the moment, there's a degree of protection because it requires two ministers to do that. When you consider that you're effectively saying to someone, 'You now no longer have any money on which to live,' there's a good reason why that shouldn't be vested solely in one person. But that's what this bill does. This bill gives the Minister for Home Affairs the power to say to certain people, 'You no longer get any money either.' Sole power! It is unreviewable power, in many instances.

It's not just about whether certain people are going to get locked up and it's not just questions about whether or not you're going to be able to survive because you don't have any money, we're also dealing with some of the key questions around peoples' right to move freely in society. At the moment, there's the capacity in certain situations to go and get control orders put on people—that is, they go to a court, and the court can say, 'Person X, even though you haven't committed a crime, we will restrict what you can and can't do.' It's worrying that a government can exercise that power—full stop—because it's effectively saying, 'We are worried about something you might do in the future, even though you haven't been prosecuted, charged or convicted yet.'

A government doing it is an abrogation of the separation of powers, which is why, in most instances in Australia at the moment, there are at least some minimal checks and balances in place. One of those is that, in most instances, it's the Attorney-General who has the power to go and do that, because it is seen as such a fundamental question of liberty that it should be the first law officer in this country who is able to go to a court to seek something so serious—very, very serious—as a control order against someone who has not committed a crime.

That has now gone. In many instances, that has now gone and is being transferred to Peter Dutton, the member for Dickson, the Minister for Home Affairs. What is the justification for that? What is the justification for an abrogation of such a fundamental liberty as the right to freedom of movement and the right to be presumed innocent if you have not been found guilty of committing any offence? It's for that reason that the Law Council said:

Given the extraordinary nature of these powers and the potential for restrictions on liberty involved, the Attorney-General should retain responsibility for their exercise. As the First Law Officer with broader policy responsibility for the administration of the criminal justice system and integrity functions, the Law Council considers it appropriate for the Attorney-General to continue to exercise powers and functions relating to potential restrictions on liberty. This approach would also be consistent with the proposed amendments for the Attorney-General to retain responsibility for powers and functions that have the potential to restrict liberty under the Australian Security Intelligence Organisation Act 1979 (Cth) (e.g. questioning, and questioning and detention warrants). As a minimum, the agreement (i.e. not simply a consultation) of the Attorney-General should be obtained prior to the bringing of such applications and for matters subsequently arising out of proceedings.

The Law Council is telling us that this is such a fundamental departure from democratic practices in Western society that we should not do it. But the government does not care.

And when you have a home affairs minister who is willing to broadcast to the nation that certain people are dead to him because they happen to disagree with him, when he is happy to say that journalists, commentators and activists are dead to him because they dare to question him, this is not a man who should be given the unfettered power to go and seek control orders or to detain people or to cut off people's welfare payments. This is a man who should be kept on a much shorter leash, not given bigger powers, but that is what we seem to be about to do.

Everyone else in this chamber, it seems, is prepared to vote for this bill, and that is of grave, grave concern, because we could have the prospect in the Senate of stopping it proceeding. In exactly the same way as the opposition wants us to stand up to the government on a number of other matters, this is one matter that we could be standing up to the government on and should be standing up to the government on. I say to the opposition in particular: please reconsider your position when it comes to the Senate. Do not give this man unfettered power over people's liberty, over people's payments, over people's lives. This is a man who should be held to account. I very much hope that he gets turfed out at the next election, and I hope this government gets turfed out at the next election, and it may happen within a matter of months. If it's potentially going to happen within a matter of months, do not sign off now in this parliament on giving this man more power and on putting in place changes to the way that we deal with fundamental individual rights and liberties in this country, because we might not be able to get them undone after the next election. Who knows what the composition of the Senate will be at that stage?

We've got the opportunity to stand up to this government and to stand up to a very bad minister and to say, once and for all, 'You are not going to get further powers over the rights and liberties of people in this country who have not committed a crime, but instead we will hold you to account.'

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

The debate is interrupted 10 seconds early, in accordance with standing order 43. The debate may be resumed at a later hour.