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

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the following reports: Annual report of committee activities 2020-2021; Advisory report on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020, incorporating a dissenting report; Advisory report on the Security Legislation Amendment (Critical Infrastructure) Bill 2020 and Statutory Review of the Security of Critical Infrastructure Act 2018, incorporating a dissenting report; Review of the relisting of five organisations as terrorist organisations under the Criminal Code; and Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime.

Reports made parliamentary papers in accordance with standing order 39(e).

by leave—These reports by the Parliamentary Joint Committee on Intelligence and Security were all presented out of session and published on the committee's website. First, I want to make a brief comment on the Review of the relisting of five organisations as terrorist organisations under the Criminal Code. I think this report largely speaks for itself, but I would like to make a few brief comments about recommendation 1, which is that the government give consideration to extending the listing of Hamas' Izz al-Din al-Qassam Brigades as a terrorist organisation to the entirety of Hamas.

The evidence to the committee overwhelmingly confirmed that the Hamas Brigades do not operate as some kind of independent entity, separate and distinct from the rest of Hamas. As Dr Matthew Levitt has noted, the founder of Hamas has been quoted as saying:

We cannot separate the wing from the body. If we do so, the body will not be able to fly. Hamas is one body .

And as the Director-General of ASIO told the committee during its inquiry, while it may be that the Brigades carry out the violence, Hamas as whole advocates violence and advocates and supports terrorist activity. Certainly I have no doubt that Hamas as a whole meets the requirements of being listed as a terrorist organisation under the Criminal Code. That is also the position that the committee has reached in this report. It is a position that has been reached unanimously and it is a position that the government ought to give serious and urgent consideration to.

The next report on which I would comment is the Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime. While the committee has supported the extension of the sunset dates for the control order regime, the preventative detention order regime and the continuing detention order regime, the committee has made 19 recommendations in this report, including: legislative amendments to improve the Commonwealth Ombudsman's oversight of the Australian Federal Police; the introduction of stricter issuing criteria in relation to declarations of 'prescribed security zones' by the government; an amendment to the definition of 'issuing court' in the Criminal Code, so that that only superior judges may issue control orders; and an amendment to division 105 of the Criminal Code, so that only Federal Court judges may issue preventative detention orders, not AAT Members or Federal Circuit Court judges, as is currently the case.

The committee has also made a number of recommendations that do not require legislation and which, frankly, it should not have been necessary for the committee to make. For example, it should not be necessary for the committee to recommend that the Department of Home Affairs coordinate with relevant state and territory departments to source appropriate accommodations to facilitate interim and confirmed continuing detention orders. And yet that recommendation is necessary because, despite the continuing detention order regime having been introduced over five years ago, the government does not have agreements in place with all relevant state and territory departments in relation to appropriate accommodation for the subjects of interim and confirmed continuing detention orders. In fact, it appears that the only relevant agreement that currently exists is an agreement between the Commonwealth government and the Victorian government that was signed in September 2020, just days—in the nick of time—before the first continuing detention order was made by the Supreme Court of Victoria. That is not good enough.

The third report I will comment on is the advisory report on the Security Legislation Amendment (Critical Infrastructure) Bill 2020 and the Statutory Review of the Security of Critical Infrastructure Act 2018. Significantly, the committee has recommended, unanimously, that the critical infrastructure bill be split into two, with many of the more contentious issues to be reconsidered and redrafted in light of the committee's comments and feedback from key industry and other stakeholders.

This report is a sensible and measured response by the committee to, on the one hand, an identified need by security agencies and, on the other hand, serious and understandable concerns about the bill from a range of stakeholders, including the Electrical Trades Union, the ACTU, industry groups and legal experts. I note that the critical infrastructure bill has been listed for debate in the House this week, and I look forward to speaking in more detail about the bill and the concerns expressed by witnesses to the committee.

The fourth report on which I will briefly comment is the advisory report on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020. I will also have the opportunity to talk about this bill in detail when it is brought on for debate in the coming weeks, so I'll be brief. If this bill becomes law, it would be possible for federal authorities to seek an extended supervision order as an alternative to a continuing detention order for high-risk terrorist offenders. Under a supervision order, an offender would be released into the community at the end of his or her sentence but would be required to comply with prohibitions, restrictions or obligations that are, in the court's view, reasonably necessary and appropriate and adapted to protecting the community.

The committee has unanimously endorsed the bill, subject to the government accepting a number of important recommendations. The former Independent National Security Legislation Monitor, Dr James Renwick SC, recommended the introduction of an extended supervision order in 2017. It took the current government three years to respond to that recommendation by introducing legislation into the parliament, despite the fact that the former Attorney-General, the member for Pearce, told the Australian in October 2018—three years ago—that:

The government intends to introduce legislation to create an ESO scheme as soon as possible.

Against that background, it was disappointing to read in The Australian a report on 13 September this year that the current Minister for Home Affairs 'will seek to increase powers for security agencies and courts to keep high-risk terrorists in prison or monitor them'—as if this bill were some new idea of the minister's that was being urgently acted on.

Other media organisations also reported that the home affairs minister was seeking 'new powers' to prevent terrorists from committing an attack, no doubt having been provided with carefully prepared material by the minister which neglected to mention that the idea had been around for four years and that the Intelligence and Security Committee was actually completing a review of the legislation. Much of this media commentary was very familiar, because we'd heard it all before, including when this bill was introduced by the member for Pearce approximately one year ago when he was Attorney-General and two years before that when he first announced that the government was committed to introducing such a bill as a matter of urgency.

The truth is that if the current government had spent more time on actually developing the measures contained in this bill and less time trying to eke out as many breathless headlines as possible then we would already have a federal extended supervision order regime. Counterterrorism legislation is too important to be used by ministers as a means of generating self-aggrandising and misleading headlines. The Australian people deserve better, and I urge the Minister for Home Affairs to do better in the future.

The final report I have presented is the committee's annual report for 2020-21. As outlined in the report, the committee has faced, and is continuing to face, the heaviest workload in its history. It is therefore important for the government and the committee itself to consider how the committee's work can be done more efficiently, how the committee can conduct its inquiries most effectively and whether the committee is adequately resourced.

The committee's annual report for 2020-21 makes a few practical and modest suggestions to improve the efficiency and quality of the committee's many inquiries. For example, the committee has recommended that any bill referrals are accompanied by a submission from the department responsible for the bill; more often than not, that will be the Department of Home Affairs. From my own perspective, the main virtue of this recommendation is to enable non-government submitters to review and respond to the relevant department's submission at the outset of the committee's inquiry into a particular piece of legislation. Among other things, this would assist the committee in identifying deficiencies in the relevant department submissions sooner and, where necessary or helpful, ask the relevant department to provide supplementary submissions.

Regrettably, the Department of Home Affairs has a track record of providing poorly reasoned and unenlightening submissions to the committee, heavy on platitudes and jargon, light on detail and evidence. That has not invariably been the case; the department has demonstrated that it is at least capable of producing helpful submissions, especially when it is pressed by the committee. If this recommendation by the committee is adopted, I hope we will see higher-quality submissions from the department, because they will have an opportunity to review the department's submission prior to preparing their own, even better and more informed submissions from non-government submitters too.

Perhaps most significantly, the committee has recommended that the government refer section 29 and schedule 1 of the Intelligence Services Act to the committee for review and report at the commencement of the 47th Parliament. As set out in the annual report, that review would provide the committee with an opportunity to give further consideration to whether its oversight functions should be expanded and how much oversight ought to be conducted. It would also provide the committee with an opportunity to consider the perennial issue of resourcing and potential improvements to how the committee goes about its work, including when it comes to quorum requirements and meeting procedures and the availability of suitable, classified meeting facilities.

I would like to thank all committee members, Labor and Liberal, for the work that they have done over the 2020-21 period, which was a very challenging and disrupted period for all Australians. I'd also like to thank the committee secretariat for their professionalism and hard work. It has not been easy, with many hearings and meetings conducted remotely, but the committee has achieved a lot, in large part thanks to your efforts. That's a comment directed to the secretariat.

There were a number of changes to the composition of the committee over the course of 2020-21. I acknowledge the contribution of Senator Stoker, who left the committee in December 2020 when she became assistant minister to the Attorney-General. And of course I must acknowledge the contribution of the member for Canning, who was until December 2020 the chair of the committee, a position that he held for four years. While the member for Canning and I had our fair share of disagreements, I never doubted his integrity or his commitment to the national interest, including in circumstances where his own view of the national interest diverged from that of the government.

I'd also like to recognise the impressive members of parliament who have joined the committee during the 2020-21 financial year. First is my Labor colleague the member for Cowan, a counterterrorism expert, who joined the committee in September 2020. Second is the member for Curtin, a former professor of law and university vice-chancellor, who joined the committee in February 2021. Finally there is Senator James Paterson, who took over as chair of the committee in February 2021. Like the member for Canning and, as the five reports I have tabled today attest, Senator Paterson is proving to be a constructive and effective chair of this valuable committee.

Finally, I would like to recognise the contribution of the former deputy chair of the committee, the member for Holt. The member for Holt has been a member of the Intelligence and Security Committee since 2005. He is a former chair of the committee and has served as deputy chair of the committee since 2013. A lot has been said recently about the member for Holt, and a lot more will be said in the light of last week's IBAC hearings. I do not propose to say anything about those matters today. What I will say is that there can be no doubt that the member for Holt has made a significant contribution to the Intelligence and Security Committee and national security policy more generally over the course of his 22 years in the federal parliament. That contribution has been widely acknowledged, including by those opposite. Last week was the member for Holt's last as the deputy chair of the Intelligence and Security Committee, and I would like to take this opportunity to acknowledge that and thank him for his years of invaluable service to the committee. I commend the five reports to the House.