Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

This bill is the second national security bill brought forward by the government in this parliament; the first, the National Security Legislation Amendment (No 1) Bill, was passed through the parliament on 1 October. Labor insisted on a full review of that bill by the Parliamentary Joint Committee on Intelligence and Security; and we supported the bill, subject to the government implementing each of the committee's recommendations. This bill is of a very different nature to the first bill. Labor's shadow Attorney-General, Mark Dreyfus, said of that bill in his second reading speech in the other place:

Many of the measures in the bill are largely uncontroversial, though worthy, adjustments to intelligence legislation, including updating ASIO's employment framework, improving ASIO's ability to work and share information with other organisations, enabling ASIS to better cooperate with ASIO, improving ASIS's protective security capability while operating in dangerous environments and renaming our defence agencies to better reflect their roles. Though it is perhaps impossible to separate this legislation from current events in public debate, we should be clear that these are reforms intended to endure well after current threats have faded. We should debate their content on that basis.

The Foreign Fighters bill contains a very different set of amendments. The first bill updated and adjusted the architecture of our national security organisations in a broad way so that they will be better able to meet present and future demands. The Foreign Fighters bill, by contrast, directly addresses 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, this bill focuses on the discrete powers most relevant to addressing the immediate threat of foreign fighters.

Labor offered the government its constructive bipartisan support for the first bill and we have offered constructive bipartisan support for this bill. As the Leader of the Opposition, Bill Shorten, has said on many occasions, 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. However, our bipartisan assistance to the government on matters of national security is never a blank cheque and we have also sought serious changes to this bill. Labor foreshadowed during debate on the first bill that subsequent bills 'may merit a different approach', and this has proven to be the case with regard to the Foreign Fighters bill. We have sought much broader changes to the Foreign Fighters bill than we sought to the first bill—arising as it did out of a lengthy bipartisan process begun by a Labor government.

Labor has fought hard over the past weeks to improve this bill by making sure it actually assists our agencies in addressing the foreign threat and by insisting on necessary safeguards for the fundamental democratic freedoms which characterise our society and our way of life in Australia. We pursued these improvements in the intelligence committee, where Labor members and senators closely scrutinised the bill and tested the case for each new measure. In cooperation with the government members of the committee we achieved 36 substantive recommendations. We pursued these improvements in negotiations with the government in which we have achieved agreement on not just the full implementation of the intelligence committee's recommendations but also yet further amendments to the bill. Now, not satisfied with the government's position on two outstanding matters in this bill, Labor will pursue improvements to this bill through further amendments that we will move in the Senate.

To give context to the improvements to this bill that have been achieved by Labor, it is useful to consider the scope of the bill and the original form in which the bill was first introduced into the Senate. The bill was introduced into the parliament on 24 September. It contains a broad range of measures designed to address the foreign fighter threat and amends more than 20 Commonwealth acts. Much of the bill implements recommendations of the March 2013 COAG review and the second, third and fourth reports of the former Independent National Security Legislation Monitor, Bret Walker SC. These measures include: a new power for interim suspension of passports; merging the Crimes (Foreign Incursions and Recruitment) Act into the Criminal Code, and harmonisation with code antiterror provisions; changes to the law of evidence to facilitate the use of overseas evidence in prosecutions of foreign fighters; a new evidence-tampering offence; lowering the legal threshold for arrest without warrant for terrorism offences; new power to seize bogus travel documents; providing for information sharing between AUSTRAC and AGD to help combat terrorism financing; and the introduction of delayed notification search warrants for terrorism offences.

The bill also includes other proposals which have attracted more controversy: a new offence for advocacy of terrorism, and the introduction of 'advocacy of terrorism' as a ground for prescription of a terrorist organisation; a new offence for entering or remaining in an area declared by the Minister for Foreign Affairs; and an expansion of power to collect biometric information on Australian citizens at airports. Further, in its original form, the bill provided for the extension by 10 years without review of the sunset clauses for legislation empowering the AFP control orders due to expire in December 2015, the ASIO questioning and detention powers due to expire in July 2016 and the AFP preventative detention orders due to expire in December 2015.

Let us look at the committee recommendations. The bill was referred to the Parliamentary Joint Committee on Intelligence and Security, where it was thoroughly scrutinised and debated. The committee sought public submissions and held several public hearings. Labor members worked tirelessly with their government counterparts to apply the level of scrutiny and oversight Australians expect their representatives to bring to bear on legislation of such consequence. The process culminated in the intelligence committee's production of a substantial report making 36 recommendations, many of them calling for significant changes or clarifications. For completeness, and to illustrate to the Senate and to the Australian people the breadth and depth of the changes to this bill that have been achieved, I will set out those recommendations of the committee which call for amendment to the bill. I note that in each and every case Labor has insisted that the intelligence committee's recommendations be accepted and necessary amendments brought forward by the government.

In relation to sunset provisions, in its original form, the bill provided—extraordinarily, as I said—for the extension by 10 years, and without review, of the sunset clauses for legislation empowering control orders, ASIO questioning and detention powers, and preventative detention orders. Incredibly, in fact, there were reports in the press that the government initially wanted to remove any sunsetting arrangements for these powers, and confirm them as a permanent part of our law. Control orders, preventative detention orders, and the ASIO powers are each extraordinary and unprecedented powers introduced in the mid-2000s in response to the September 11 attacks and the Bali and London bombings. Their extraordinary nature is reflected in the fact that the Howard government saw fit to subject those powers to review and have them lapse after 10 years of operation if no legislation was passed to extend them. I note that the then Labor opposition sought amendments limiting this sunset period to five years—amendments which, unfortunately, at the time were unsuccessful.

The intelligence committee, after robust debate, concluded that these powers should sunset two years after the next federal election. It is right and proper that the next parliament be obliged to grapple with these powers again, and to decide on its own account whether their continuation is justified. Labor was not satisfied that the case had been made for such a lengthy extension. It is not acceptable that these extraordinary powers could operate for two decades without being properly reviewed by the parliament. As I said, this bill is aimed at a present threat; Labor will resource our agencies appropriately to deal with that threat, but we will not abandon scrutiny of agency powers properly considered special or emergency measures.

Moving onto the reviews, importantly, Labor has ensured that these sunset provisions are accompanied by mandatory reviews ahead of time. As was noted in evidence given to the committee, the whole purpose of sunsetting provisions is undermined if appropriate reviews are not conducted. The intelligence committee recommended that its review of the preventative detention order, control order, and ASIO powers be mandated by statute. What is more, it recommended amendment of the Independent National Security Legislation Monitor Act to mandate reviews of the powers by that body also. It is worth remembering that it was only due to pressure from Labor that this body was retained. Earlier in the year, the Abbott government described this critical oversight office as 'red tape' and sought to repeal it. We vocally opposed that short-sighted cut, and the bipartisan support the committee expressed for the position in its report on the first bill was vindicated by Labor's consistent support for proper oversight mechanisms.

Speaking on the first bill, I pointed out that the position of monitor had been vacant since April. At a time of substantial change to our national security laws, that office is still vacant. This is simply unacceptable. Labor calls on the government to appoint an appropriate, credentialled and experienced monitor immediately. This is critical. By insisting on dramatically shortened sunset periods and on statutory reviews, both by the monitor and by the intelligence committee, Labor has ensured that, no matter the attitude of the Australian government in the next parliamentary term, there will be a sober and considered review of these powers ahead of their scheduled sunset.

We move onto foreign evidence. Labor has improved key human rights protections in the bill's provisions for the use of overseas evidence in terrorism prosecutions in Australian courts. As we did in regard to the first bill, we have demanded amendments to clarify that torture can never be accepted in any way under our law. As originally presented to the parliament, this bill excluded foreign evidence obtained as a result of torture only where that torture was carried out by public officials. There is no reason why the exclusion should be constrained in this way, especially when we are particularly concerned with regions which may have no readily recognisable state authorities.

The committee recommended the exclusion be expanded to cover torture by anyone. It also recommended the expansion of the definition of evidence obtained under duress to cover situations where evidence is obtained from a person by dint of threats to their person, their family, their associates or their property. In its original form, the bill had only covered circumstances where a person or their family was threatened. Though we strongly support making foreign evidence easier to use, as it is a critical part of enabling successful prosecutions under foreign incursions offences, Labor also wants appropriate safeguards for the accused. The committee recommended that judges be obliged to warn juries about the potential unreliability of foreign evidence; this is an important way of making sure that trials are fair.

On biometric collection, the Foreign Fighters Bill includes provisions for the expanded collection of biometric data on Australian travellers. While the legislation expressly provides only for the collection of photographs, the bill as originally drafted allowed the government to expand this to other forms of biometric data, such as fingerprints or iris scans, by mere regulation and without seeking parliamentary approval.

Labor voiced its objection to this during the committee process. It is not acceptable that such an expansion of power with serious consequences for the privacy of ordinary citizens could be achieved without new legislation. Indeed, it is worrying that this aspect of the bill only became apparent during the Intelligence Committee's scrutiny. It is a vindication of that scrutiny process that did occur. We welcome the committee's recommendation to remove the ability of the government to prescribe further biometric collection by regulation. We also welcome the recommendation that the privacy commissioner oversee both the biometric database that is provided for in this bill and any future legislative proposals to expand it to other forms of data.

On foreign incursions, the bill makes a number of changes to Australia's existing foreign incursions legislation which were recommended by the National Security Legislation Monitor. Appropriately, the bill will roll the Foreign Incursions and Recruitment Act into the Criminal Code and update its provisions to specifically deal with the foreign fighter threat. We welcome those changes along with the improved ability to use foreign evidence and we hope that these improved provisions will allow for successful prosecutions of Australians who engage in lawless conduct in conflict zones abroad.

However, the bill as originally presented was drafted in a confused way. It did not simply implement the monitor's recommendation that the definition of 'engaging in hostile activities' overseas be updated to include terrorist activity as currently defined under Australian law. Rather, it included a new concept: 'subverting society'. As was pointed out in evidence to the committee, this expanded the operation of the foreign incursions provisions well beyond what the foreign incursions provisions were meant to address. It could have seen those provisions address private disputes or petty criminal activity.

Labor welcomes the committee's further recommendation that the definition of 'engage in hostile activity' be amended so that it only captures conduct which would be a serious offence under Australian law. The strange legislative language of 'subverting society' was likely to mislead or confuse the public as to what was intended. As the former monitor Bret Walker pointed out during the Intelligence Committee process, there is no need for this sort of florid language in Commonwealth statutes, which should be drafted in clear and calm terms. A loaded legislative term like 'subverting society' would cause completely unnecessary community agitation when the substance of the provision is aimed simply at terrorist conduct. Labor welcomes both the substantive changes which faithfully implements the monitor's recommendation and the removal of this poor drafting technique. We are pleased to see the government agree to produce a more tightly constrained provision that is drafted in clear language.

On enhanced oversight, across all parts of the bill Labor has sought improved oversight and accountability mechanisms. We believe that our security agencies can only continue to do their important work if Australia's political leaders are willing and able to reassure the community—and I refer here to every part of our diverse, multicultural community—that our security agencies are not only appropriate empowered but also appropriately accountable. Of key importance is that the committee recommended that it have the power to oversee not just the Australian Intelligence Community agencies but also the AFP in its counter-terrorist capacity. Labor supports this, as it is right and appropriate for the Intelligence Committee to be able to hold all agencies involved in counter-terrorism activities to public account. This is especially so given the extension in this bill of AFP powers, including to preventative detention orders and control orders.

With respect to the more controversial parts of the bill, particularly the declared areas and advocating terrorism, I will cover those issues during my contribution to the committee stage and in moving the amendments that have been circulated. In conclusion, I will say that Labor has approached this legislation as a responsible opposition should. We have offered the government our bipartisan support for measures to ensure our national security and that is constructive, bipartisan support. Labor did not, and never would, offer the government a blank cheque on this or any piece of legislation. We have worked hard to improve this bill. We want to make sure that it operates as intended, actually serves to protect our security and is subject to limits and accountability appropriate to the sort of free society that Australia is and must remain.

Our committee members have worked hard in pursuit of these ends in the intelligence committee process. We have worked hard in pursuit of these ends in negotiating with the government. And when our concerns have not been satisfactorily resolved, we have moved amendments in this place, which we urge the government to consider and to adopt.

Labor is proud of its record on national security and we are happy to assist the government in getting this bill right. We thank the government for its willingness to accept so many of the changes that we have asked for, and we hope that in that same spirit of constructive bipartisanship they might accept the two further changes we seek in the Senate today. (Time expired)