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

Every debate about national security legislation in this country should begin with a recognition that the powers we have given our security agencies in Australia are broader and subject to fewer restrictions and less oversight than the powers that have been given to agencies in any similar country anywhere in the world. There are no greater examples of this than ASIO's questioning and detention warrant powers. No comparable jurisdiction in the world—by that I mean Western democracies—gives such powers to its intelligence agencies.

Both powers are due to sunset on 7 September 2019 as recommended in March 2018 by the bipartisan and government-majority Parliamentary Joint Committee on Intelligence and Security. Yet, under this bill, both powers would be extended for another year. In its current form, the bill constitutes a serious breach, the second in two weeks, of the bipartisan working arrangements between the government and the Labor Party which had been premised on an understanding that the recommendations of the Intelligence and Security Committee are to be respected and implemented.

The questioning and detention powers in the ASIO Act were first proposed in 2002 and first enacted in 2003. At that time, they were regarded as extraordinary. Because they were extraordinary powers, they were introduced as temporary measures rather than as a regime defining the new normal under which Australians would have to permanently live. There are two powers at issue here: one that allows ASIO to compulsorily question an individual for the purpose of obtaining intelligence in relation to a terrorism offence, which is the questioning warrant power, and another that allows ASIO to compulsorily detain and question a person for the same purposes, the questioning and detention warrant power.

I will start by saying something about the first of these powers, the questioning warrant power. Although it has been used sparingly, we believe that ASIO should continue to have the power to compulsorily question people in appropriate circumstances subject to appropriate safeguards and oversight. But, as ASIO itself has said, the current form of the questioning warrant power is not fit for purpose and needs to be amended. The best evidence of this is that, as at May 2018, the questioning warrant power had not been used since 2010. There has been no suggestion from the government that it has been used since.

ASIO made numerous submissions to the Parliamentary Joint Committee on Intelligence and Security about how it would like to see the power amended. One of the key amendments that ASIO has asked for would enable the questioning warrant power to be used to gather intelligence in relation to espionage and foreign interference investigations. Currently, it can only be used to gather counterterrorism intelligence. ASIO has for some time been sounding the alarm over the threat of espionage and foreign interference. It is a threat that the Director-General of Security and head of ASIO, Duncan Lewis, has described as one that can 'inflict catastrophic harm on our country's interests'. In May 2018, a few months after the intelligence and security committee handed down its report in relation to the questioning warrant power, Mr Lewis said in relation to counter-espionage:

… as I've stated publicly, foreign powers are actively undertaking espionage and foreign interference in Australia. I've said before ASIO assesses that the current scale of foreign intelligence activity against Australian interest is unprecedented. Espionage, interference, sabotage and malicious insider activities can inflict catastrophic harm on our country's interests. They potentially undermine our sovereignty, our security and our prosperity. Foreign actors covertly attempt to influence and shape the views of members of the Australian public, the Australian media, officials in the Australian government and members of the diaspora communities here in Australia. Foreign states maintain an enduring interest in a range of strategically important commercial, political, economic, defence, security, foreign policy and diaspora issues. Clandestine interference is designed to advance the objectives of the foreign actor, to the detriment of Australia and to our national interests. In some instances, the harm from espionage and foreign interference is immediately evident and in other instances, of course, the harm doesn't materialise for years and potentially for decades.

In a recent interview, Mr Lewis said that the threat of terrorism has 'plateaued' and reiterated that foreign interference in Australia is at 'an unprecedented level of activity'.

It is against this backdrop that the bipartisan intelligence and security committee gave the Minister for Home Affairs until 7 September 2019 to propose appropriate amendments to the questioning warrant power to empower ASIO to better respond to this rapidly growing threat to our national interest. With the 7 September 2019 deadline fast approaching, the minister has finally provided his response to the bipartisan intelligence and security committee's—and ASIO's—recommendations. And what is that response? In essence, the Minister for Home Affairs says—and it's the Minister for Home Affairs in what can only be regarded as a very tired, third-term government—'I haven't got around to giving ASIO the powers it needs, but maybe I'll get around to doing it in another year.' Perhaps the minister was too busy planning his career advancement by bringing down Prime Minister Turnbull rather than focusing on his urgent ministerial responsibilities.

This bill highlights two things very clearly: the Minister for Home Affairs' incompetence as the minister responsible for Australia's national security, and the minister's indifference to the role of parliament and fundamental democratic principles. In relation to the minister's competence, the House should note that the then Independent National Security Legislation Monitor, Roger Gyles QC, told the government more than three years ago that the questioning warrant power needed to be updated, and offered detailed guidance as to how to do this—that was three years ago. And it's worth repeating that the Parliamentary Joint Committee on Intelligence and Security told the Minister for Home Affairs in March 2018 that the questioning warrant power needed to be updated urgently, with a deadline of 7 September 2019. ASIO told the Minister for Home Affairs that the questioning warrant power needed to be updated by 7 September 2019. The intelligence and security committee and ASIO also offered the minister detailed guidance about how to do this. For well over a year, the Labor and Liberal members of the intelligence and security committee have been waiting for the minister to introduce a bill that would make the necessary amendments to the questioning warrant power. He has failed to do so.

I now turn to the second of the powers in question, the questioning and detention warrant power, and this minister's indifference to parliament and foundational democratic principles. The intelligence and security committee—which, it's worth saying again, is a government majority committee that, up until now, has been able to proceed on a bipartisan basis, with the government accepting its recommendations—also told the minister in March 2018 that the questioning and detention warrant power should be repealed on 7 September 2019. Three different Independent National Security Legislation Monitors—that's every Independent National Security Legislation Monitor since that office was created—and ASIO itself have also said that the questioning and detention warrant power should be repealed.

Under the questioning and detention warrant power, the executive government of Australia has the power to pick up a person without warning, detain them in a secret security facility and question them there for up to seven days. This power can be exercised against any Australian resident without any requirement that the person be suspected of any wrongdoing. The detained person may also be imprisoned if he or she fails to give any information required by the government, and they enjoy no privilege against self-incrimination and may be sent to prison for disclosing the fact that he or she has been detained or questioned. So an Australian woman could be taken off the street for seven days, held and questioned in a secret detention facility and then be sent to prison for five years for simply telling her boss why she couldn't come to work for a week. Even if her boss threatened to fire her for her absence, she couldn't say anything. A man could be sent to prison for telling his wife why he hadn't come home for seven nights. Even if she threatened to leave him, he couldn't say anything about where he'd been without committing a very serious criminal offence. The power is wrong in principle.

The national security legislation monitor appointed by Tony Abbott as Prime Minister, the Hon. Roger Gyles AO QC, described the power in the following terms:

A warrant enabling a person to be detained in custody, virtually in communicado, without even being accused of involvement in terrorist activity, on grounds which are kept secret and without effective opportunity to challenge the basis of his or her detention.

To use the words of former High Court Chief Justice Sir Gerard Brennan: 'on the basis of intelligence' in relation to a terrorism offence is an extraordinary power. Further, the decision on whether the grounds to make a questioning and detention warrant application, rather than a questioning warrant application, lies with a member of the executive. No precedent in any comparable country has been identified. Mr Gyles went on to describe the power as 'odious'—and, as a practical matter, the power has never been used. It has played no role in keeping Australians safe since it became part of Australian law in 2003. Let me repeat that: the questioning and detention warrant power has never been is by the government—not once. It has played no role in keeping Australians safe.

As a result of his own rank incompetence the Minister for Home Affairs and his Prime Minister have unconscionably sought to place the Parliament of Australia in the position of having to choose between rejecting this bill, and thereby leaving ASIO without any questioning power at all for however long it takes the Minister for Home Affairs to get his act together, or agreeing to the bill and, in so doing, leaving an extraordinary, odious and totally unnecessary power on the statute books for another year despite receiving and accepting multiple recommendations for its repeal. Labor will not help the government cover up for the Minister for Home Affairs' incompetence, but nor will we allow ASIO or the Australian people to bear the consequences of that incompetence. That's why I'll be moving an amendment to the bill to extend the sunset date on the questioning power—a power ASIO has used before and for which ASIO has said there is a continuing need—to December of this year. That will give the Minister for Home Affairs, and the 20,000 or so people who work for him, time to propose a revised questioning framework as recommended by the intelligence and security committee, as recommended by the government's own national security legislation monitors and as recommended by ASIO.

If there is a very good reason why the minister has not done anything in the three years he has had notice of this, since Mr Gyles told him that this needed to be done—or, to take a lesser period, in the 18 months or so since the minister has been told by the intelligence and security committee that this power needs to be amended—if there is some reason why he needs more time, he needs to make that case. And he hasn't made that case. Contemptuously, the Minister for Home Affairs has simply failed to explain anything about why this bill is before the parliament and about why he is not following the recommendations he has had from multiple sources. The amendment I will move will also ensure the repeal of the odious questioning and detention warrant power on 7 September 2019—a power which has never been used, has played no role in keeping Australian safe and has no place in Australian law.

No doubt, the minister and his mates will seek to falsely characterise Labor's position on this bill as an attack on the agencies or as undermining national security. There is apparently no limit to what the Liberal Party will say in order to cover for the incompetence of this Minister for Home Affairs. The truth, of course, is that Labor has an extraordinarily good record on national security and we support the work of our agencies. It was a Labor government that established ASIO. It was a Labor government that had the courage and foresight to establish the first and second Hope royal commissions in the 1970s and 1980s. As every independent review of Australia's security and intelligence framework in the last three decades has acknowledged, the governance framework of the entire Australian intelligence community is based on the findings and recommendations of those Labor established royal commissions. The strength of our intelligence agencies, including ASIO, is built in those foundations.

It was a Labor government that established the Office of the Inspector-General of Intelligence and Security. It was a Labor government that established the Office of the Independent National Security Legislation Monitor and that successfully resisted an attempt, in the first term of this terrible third-term government, to repeal that vital office as mere 'red tape'. It was a Labor government that established a parliamentary committee in relation to intelligence and security committees. Today, that committee is called the Parliamentary Joint Committee on Intelligence and Security. The irresponsible and ignorant suggestion by the Minister for Home Affairs that Labor's record on national security is anything but outstanding does not withstand even the slightest scrutiny.

As I said last week, all of us in this parliament love Australia. All of us in this parliament want Australia to be safe and secure. All of us want to see Australians prosper. None of us want to see Australia lose its character as a confident, free and democratic country. All we in Labor are asking the government to do today is to stop seeking to exploit national security matters for a base marketing ploy to pump up the government's flaccid tyres and to stop trashing longstanding bipartisanship and cooperation on national security matters in an attempt to continue to promote its party political interests, because bipartisanship on national security matters has served our nation well for many years and partisanship—including the recent denigration of the Parliamentary Joint Committee on Intelligence and Security as 'just another committee', the recommendations of which the government thinks it can ignore—does not serve our nation's interests. We are asking the government to quietly and efficiently get on with doing its job—no more, no less.

Finally, in terms of what a revised questioning warrant framework might look like, the Intelligence and Security Committee and the Independent National Security Legislation Monitor, Mr Gyles, have provided the minister with considerable guidance. In fact, the Intelligence and Security Committee has an entire chapter in its report which considers the principles that should underpin a future compulsory questioning model. The 2016 Independent National Security Legislation Monitor, the Hon. Roger Gyles AO QC, recommended that the questioning warrant power be replaced with a questioning power following the model available to the Australian Criminal Intelligence Commission. The Law Council of Australia supported that recommendation, partly on the basis that it would be desirable to have consistent, compulsory questioning models across agencies. There is considerable merit in that proposal. That said, and as I noted earlier, ASIO itself put forward a preferred model, which is set out in summary form in the intelligence committee's report. That proposal also warrants careful consideration.

I encourage the Minister for Home Affairs to read the committee's report. Perhaps I should encourage the Minister for Home Affairs to also read the report of the Independent National Security Legislation Monitor. I implore the minister to stop making excuses and to get on with the job of designing a revised questioning warrant framework for 2019. When he does so, I give my commitment that Labor members of the parliament will engage in the task of assessing that framework in the spirit of constructive bipartisanship on national security that has served our nation for many years. I now move the amendment to the motion for the second reading:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) notes that:

(a) the Government has failed to implement any of the recommendations made by the bipartisan Parliamentary Joint Committee on Intelligence and Security in relation to the Act in March 2018;

(b) the committee recommended that the questioning and detention warrant power be repealed by 7 September 2019;

(c) the committee and ASIO also told the Government that the questioning warrant power needed to be amended by 7 September 2019 because, in its current form, it is not fit for purpose; and

(d) the Minister for Home Affairs has failed to produce a revised framework for the questioning warrant power; and

(2) is of the view that:

(a) this bill highlights the Minister for Home Affairs' incompetence as the minister responsible for Australia's national security and his indifference to Parliament and foundational democratic principles;

(b) the Government should get on with the job of amending the questioning warrant power as a priority, as recommended by the Committee and by ASIO;

(c) legislation to amend the questioning warrant power framework in the Act should be introduced during the first sitting week of September 2019 and referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 18 November 2019, with a view to the legislation being considered by the House during the last sitting fortnight of 2019; and

(d) the Government should repeal the questioning and detention warrant power, which ASIO has never used".

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Mark Butler (Hindmarsh, Australian Labor Party, Shadow Minister for Climate Change and Energy) Share this | Link to this | Hansard source

I second the amendment and reserve my right to speak.

Tim Wilson (Goldstein, Liberal Party) Share this | Link to this | Hansard source

The Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019 deals with the fundamental issue of national security and intelligence. We heard in the speech from the shadow Attorney-General a series of allegations against the Minister for Home Affairs, the government, 20,000 bureaucrats and their agencies and about the cheapness and partisanship that sit behind this piece of legislation. He then proceeded to move an amendment that was cheap and partisan and that served no purpose other than to extend the sound of his voice echoing in this chamber for his own enjoyment. It was a sad and tragic effort by the shadow Attorney-General, and it was beneath him to have gotten up and given such an address.

This piece of legislation is substantive. It matters. It goes to the heart of our national security. Don't misunderstand me: I share some of the reservations or concerns about the national security framework that we have in place. The right of citizens to be able to live their lives freely and to make sure there's proper accountability in the exercise of both executive and judicial power is something we should always scrutinise in this parliament. I have always been cautious about many of the parts of our national security legislation and the power the legislation gives our agencies. That won't change. In the end we face constant tests and challenges in this place around balancing liberties and protecting national security.

Opposition Members:

Opposition members interjecting—

Tim Wilson (Goldstein, Liberal Party) Share this | Link to this | Hansard source

I hear some members on the other side of this chamber saying that, even though I raise my scepticism, I still vote for some legislation. That is resolutely true. I do—and so do you—because we all know that we in this place are the custodians of preserving and conserving the nation and its security. Belittling and demeaning it to the sound bites of the shadow Attorney-General doesn't just cheapen him, though it does; it cheapens the custodianship that we hold on behalf of the people of this great nation.

The purpose of this legislation is actually relatively straightforward. The legislation has been reviewed, recommendations have been made by a committee, those recommendations have been accepted by the government, and we are reviewing the legislation for amendment. But, to do so, we are taking prudent and responsible steps, where ASIO and IGIS, the Inspector-General of Intelligence and Security, are engaging with stakeholders and partners to make sure we get it right.

One of the points made by the shadow Attorney-General, amongst others, is that we've got to get this stuff right, and he's right on that; we do. But his solution is to fast-forward the process, to speed it up, to come out with a resolution before we have clarity and, in the process, to compromise the integrity of the legislation that this nation so desperately needs. And he then belittles and cheapens it with an amendment, the objective of which seems largely driven by his personal frustration that he is sitting on that side of the chamber and not this one. That's it—nine months and personal vendettas. So you can understand why so many people on this side of the chamber treat his long and verbose speeches about his own self-indulgence with such contempt.

This legislation has one purpose, which is to make sure that our agencies have the power they need, so that, as soon as we're in a position to be able to replace it with improved legislation that reflects the concerns of our agencies, of the parliament and its committees, we can do so without compromising national security. I would have thought that's a pretty basic expectation of legislation in this place. I would have thought that we could come to some sort of common agreement that that is in the best interests of our country. I would have thought that, for an opposition, that would have been the least they would expect of a government—not to blindly support it all but to recognise that there is a power in place and that, until the legislation has been developed and prudently amended, it would support the legislation in its place instead of what it has done.

Let's be clear: in the speech of the shadow Attorney­General, and I'm quite sure of those who will follow him, they have revealed their cards, and that is their choice. The people of Australia will assess it and judge it prudently and I've no doubt dismiss it, because, when it comes down to the importance of making sure this nation is safe, they always seem to gravitate their eyes to the side of the coalition rather than the cheap stunts of our Labor opponents.

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

It is clear that there are no liberals—with a small 'l'—in the Liberal Party anymore. They come in here and rave about capitalism and freedom and say that they believe in individual rights but then they sign them away the very next day with a piece of legislation that was first passed in this parliament on the basis that it would temporarily suspend people's rights and liberties. But that was done back then when this legislation was tabled in 2002. We now have this legislation, the Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019, that's supposedly temporary, that gives agencies the power to detain people and question people even where they've done nothing wrong. We've now had that renewed and renewed and renewed to the point where this temporary suspension of our rights is now permanent.

This is happening under the watch of people who come in here and tell us how much they care about individual freedoms. But they're the first ones to take them away and to say that all the bleating about individuals' rights to do what they want counts for absolutely nothing as long as you write 'national security' on the front of a bill in crayon. If you do that, then this government says every individual right, every principle of the rule of law, can get trashed. We are witnessing under this government the death of the rule of law and the slow erosion of democracy as some pretty basic principles are taken away day after day.

This legislation gives agencies the power to question someone and remove the right to silence on the basis that they can provide information about something even when they've done nothing wrong, and the power to detain someone even when they've done nothing wrong. At the time that it was introduced, these powers were called 'extraordinary' and there was a sunset clause in it because they were extraordinary. It was meant to expire three years after being introduced. But what we find here is that, with these things that are meant to be temporary, the government just come in and say, 'We still need those powers,' and they give us one line to explain why. They say, 'We need to manage the ever-evolving terrorist threat'—and that's it; that's enough.

The same thing's happening in the United States. After the 11 September terrorist attacks, the President there declared a state of emergency and gave himself huge powers to bypass the law. President Trump has just renewed those powers as well, so the United States is still living in a state of emergency where it has those wide-ranging powers. And we're seeing the same principles applying here. When does the emergency end? When does the exceptional situation end? Apparently, according to this government, never! Never! It never ends. Those rights and liberties that were lost temporarily are now lost permanently.

So I'm sorry, Member for Goldstein, and all those freedom fighters who come in here and say that they believe in the cause of individual liberties: we do not believe you. We don't believe you, because you are the first ones to take them away from people and say it is okay for governments to detain people even when they haven't committed a crime. You've just trashed the rule of law, and so you have no credibility anymore. I say to those who have come before and made contributions here, saying that they believe in liberties, that they have no credibility anymore on this front, because they are the first ones to take away people's liberties.

So this is not a bill that can be supported, because there's no justification that the exceptional circumstances are continuing and there's no indication from the government whatsoever that they're ever going to wind this back. I say to the other members of this place and to the Australian public that this is going to happen time and time again. Time and time again we're going to be forced into giving up some basic principles of the rule of law, told it's temporary and then it becomes permanent.

And why are we here almost a decade afterwards, with one-line justifications for the extensions of these powers? Everyone in this chamber wants Australians to be safe. That is something that we all agree on; we all want Australians to be safe. The question is: do we make people safer by taking away their rights? And if we want to defend ourselves against terrorists and people who want to do us harm, why do we do the very thing—if you listen to the government's rhetoric, we are being attacked by terrorists because they disagree with our way of life and our system of government. That's what the government says. But is the right response to change our system of government to become more like the kinds of countries that we are supposedly opposed to? That's what happens time after time: take away some basic principles of individual liberties and the rule of law.

We'll make further contributions about this matter in the Senate, but I do make one last plea to other members of parliament who aren't on the government side: what is clear from this sitting fortnight is that this government will stop at nothing to try to find a wedge. That is all they're about; they are bereft of an agenda of their own and all they will do is try to find a wedge. There have been so many wedges flying around in this parliament in the last fortnight, the only thing that's missing is the sour cream and chili sauce! They have nothing. They didn't expect to win the election and all they're doing now is bringing in wedge after wedge after wedge. But there is a lesson here, which is that there is nothing they won't do. There is nothing they won't do, and whilst others in this place may want to show some good faith towards the government and believe that we can negotiate sensible amendments and so on, it all counts for nought. It all counts for nought if they think they can wedge people.

They will come in here time and time again, and what we've seen in this sitting fortnight is essentially a rolling over in the face of that. The problem with these people is that if you do that once they'll just keep coming back and back. We're going to have wedge after wedge for the next three years because there sure as heck ain't anything else that the government have on their agenda. So at some point we're going to need to recognise that they don't care about agreements that they breach and they don't care about following good process. This government just cares about finding a wedge, and we've got to stand up to them. We've got to stop them from trashing basic principles of the rule of law and stop them from trashing our democratic institutions.

That means standing up to them in this place and understanding that, yes, they will then go out and hold a press conference and say, 'All of those people who voted against us are responsible for the end of the world'—but they're going to do that anyway. They're going to do that consistently for the next three years, and they'll come up with some other rubbish to spin next election time. It will be something else that they will pull out of a hat, some other low, dredging-at-the-bottom-of-the-barrel piece of work that says, 'We've got to remove more peoples' rights and put some more people in prison and take away some other peoples' dignity because there's someone that we haven't kicked yet.' There's always something that these guys will find.

So let's stand up to them. Let's hold them to account for not having any agenda other than to attack people who can't defend themselves. Let's stop rolling over, because once it becomes clear that they've got no agenda other than wedge after wedge then not only will we be in a position to defend basic principles of the rule of law and of democracy but we'll start to hold this government to account and people will see them for what they are.

Jason Wood (La Trobe, Liberal Party, Assistant Minister for Customs, Community Safety and Multicultural Affairs) Share this | Link to this | Hansard source

I would like to thank my colleagues for their contribution to this debate. Ensuring the safety and protection of the Australian community is a key priority for this government. The persistent and evolving threat faced by Australia's law enforcement and security agencies makes it critical they have access to effective tools and capabilities to counter the threat of terrorism. The Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019 ensures that the Australian Security Intelligence Organisation, ASIO, retains its strong counterterrorism capabilities while the government progresses more detailed reforms on ASIO's questioning and detention powers.

Following the review of the Parliamentary Joint Committee on Intelligence and Security and the Independent National Security Legislation Monitor, the passage of this bill will extend the sunset date of ASIO's questioning and detention powers in division 3 of part III of the Australian Security Intelligence Organisation Act 1979 for 12 months until 7 September 2020. I commend the bill to the House.

Question negatived.

Bill read a second time.