Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Hansard source

Senator Wright has just said that this is a very serious piece of legislation, and indeed it is. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 is the third serious piece of legislation about national security which this chamber has considered in recent months. I know that Senator Collins talked about the process that we followed in terms of the bills following each other, but, just to put it on the record, this particular bill actually looks at taking a step further from the recent bill on foreign fighters. It has three new measures: changes to the control order scheme, which we have heard discussed by previous speakers; streamlining the process for the AFP to apply to the Attorney-General for consent to seek a control order from an issuing court; and expanding control orders to apply to persons involved in supporting or facilitating terrorist activities. Secondly, there is the provision for emergency ministerial authorisation for the activities of the Australian Secret Intelligence Service, or ASIS, the Australian Geospatial-Intelligence Organisation, or AGO, and the Australian Signals Directorate, or ASD; and the provision for cooperation between ASIS and the Australian Defence Force on military operations.

These three new measures were developed in response to operational needs and to needs which were identified by the agencies after the foreign fighters bill was introduced into parliament. That reflects the evolving nature of this area, particularly as we are facing a situation which I believe everyone agrees is a real threat—an international threat and also a local threat—to our security with the rise of the insurgencies in Syria. The important thing for Labor is to ensure there is a very strong balance between the need for intervention and for powers to be given to our security agencies, and the need to ensure the Australian community has trust and confidence in the system and does not lose the rights we have always valued in our community—the kinds of rights Senator Wright was discussing; both our human rights for our own citizens and our international obligations. It is a balancing process—looking at the threat, assessing the threat and responding to the threat and, in those circumstances, ensuring we have the strongest possible scrutiny of our legislation and our operations in our system at home. That is what we expect of our security systems, and it is what I believe the community expects.

I believe there has been some shaking of that trust over a period of time. I believe a lack of trust has been building in the community because of the speed at which some of the changes have been introduced and also because of the feeling that there has not been appropriate scrutiny of the changes proposed. We have looked at making very significant changes to our processes. In the current system, we ensure this kind of change is appropriately scrutinised through the processes that are already inbuilt. Core to that is the operation of the joint parliamentary committee, the PJCIS. This joint committee must have the power, the time and the resources to effectively scrutinise the major changes the government has brought forward. On each occasion when the three bills came to this place there was an extraordinary rush in terms of the time the committee had to consider the submissions put forward and, just as importantly, in terms of the time allowed for the community to engage in the process. We know that across our community we have a number of organisations—highly-regarded organisations and groups that do specific research in these intellectual areas—and community members who feel very strongly about national security. They feel very strongly about any threats to individual or community freedoms. They must have the opportunity, in the system we set up, not only to engage in the process but to engage effectively— which means time to research, to prepare information and to see the content of the information that is being brought forward. In each case, over the last few months, there has been a great rush. We have been deeply impressed by the way that range of organisations has taken the time and effort to engage and bring forward their concerns to ensure the government and the parliament hear what the issues are. In short, they have ensured there is scrutiny.

People can put forward submissions; they can come before a parliamentary committee and engage in questioning and raising concerns that can then build on the legislation and make sure it is better. We know that works. We know with the previous bill, which is known as the foreign fighters bill, the joint committee brought forward 34 recommendations through that process. Those recommendations were accepted by the government and passed into law. That made the bill stronger; it made the bill more responsive and it gave the community an opportunity to feel as though their concerns were listened to and, in all cases, responded to. In some cases the concerns were accepted and brought into the legislation.

The joint parliamentary committee has made 15 recommendations on the bill currently before us. It is my understanding those recommendations have been taken up by the government. Certainly, that was what was in the media this morning, so why would we doubt it! Senator Wright went through, in some detail, some of the issues raised by the people who came forward with their expertise to look at the bills and highlight where they thought the bills could be improved and where they thought issues around individual freedoms were threatened.

One of the areas that was scrutinised in the previous process was the feeling of individuals and groups in the community that they were in some way being targeted exclusively by the legislation. Those concerns need to be heard. They need to have a full response from the parliament and the various agencies to ensure there will be neither undue targeting nor an intrusion on the things we hold dear in our community.

We also have the work of the joint parliamentary human rights committee; I know Senator Wright referred to that in her contribution. This is another element of scrutiny in our parliamentary process: looking at what bills are being brought forward across the board and—particularly in the case of the national security bills—looking very clearly at the human rights aspects of these bills. I know the human rights report will bring forward concerns that have been identified; that is part of the ongoing debate.

There will be times when a decision will need to be made by the parliament and the government. They will listen to the concerns raised but they may determine that the level of the threat or the danger is such that decisions need to be made and explained on that basis. As a relatively new member of that human rights committee, that has happened with a number of these issues. The department has put forward the reasons for making decisions that could and do impact on human rights issues. We talk about freedom, and freedom of access, and the right not to be imprisoned or detained. Those things are part of the series of legislation but parliament has decided—at least with the foreign fighters bill—that the level of danger is so great there have to be decisions made. The important thing is that the scrutiny occurs—that there is appropriate scrutiny in our process and that the wider Australian community knows that not only does that scrutiny exist but that it operates effectively. We know, and I know Senator Collins talked about this, the role of the independent National Security Legislation Monitor. We believe that a decision on that position is going to be made very soon. Certainly, the Attorney-General, in response to a recent question in this place, said that there was no need to ask the question, because the government is going to respond. I have always thought it was a good process to ask questions and then get an answer.

In terms of the response, my understanding is that that position will be filled. That has been a regular recommendation of the Joint Parliamentary Committee on Intelligence and Security and also of individuals in this place and in the wider community. It is absolutely critical that the role of the Independent National Security Legislation Monitor be filled at all times—in particular when the government is moving significant pieces of legislation that impact on security issues. At this most critical time, it is important that that position is filled and that the wider community knows that that position is filled, so that those who are interested in these issues are able to see how it operates.

I do not believe that every person in the Australian community is completely engrossed in our national security system, but I know that some people are. I know that it is a really critical element of their knowledge and their experience that they want to know what is going on. In the evidence that has come before the joint parliamentary committee over the last three exercises of looking at legislation, the demand that this position be filled has been consistent—that we have, in our system, the operation of the Independent National Security Legislation Monitor looking at legislation; that we also have the important work of the Inspector-General of Intelligence and Security and her staff, which is a group that operates within the system to ensure that there is effective scrutiny; and, on top of that, because it is part of our job, that we need to have both the Joint Parliamentary Committee on Intelligence and Security and the Joint Parliamentary Committee on Human Rights working effectively. When we have those processes in place, there should be a confidence that, when legislation is brought forward that is looking at security issues in our community, there will be an effective and robust process of scrutiny that must ensure questioning and an expectation that there will be a full explanation from the department and the government on the rationale for the changes and also the operation of the changes and, most importantly, how the changes will be monitored into the future. That would be an expected process for this place.

There have been concerns that, over the last couple of months, those processes have not been as robust as they should be. By now, having three bills in a certain period of time, we should be about getting it right with how it works. When a request comes forward for a change because of an identified danger, then the process of the legislation goes through each of those elements. Public scrutiny in the operation of the parliamentary committee is absolutely critical. We know from our experience over the last three bills that there will be a response. There will be quite detailed responses and there will be a willingness to be engaged. Through this process with the bill before us today, we have 15 substantive recommendations. Those recommendations have made changes to what the original legislation proposed. For me, one of the most important ones is the fact that there needs to be justification for action. It should be a given that, when significant action is taken, there should be a clear justification for that action. One of the amendments that has been put forward is to require that the Australian Federal Police provide the Attorney-General with a summary of facts when seeking consent to apply to the court for an interim control order. This should and must include any facts indicating why it should not be made. When the AFP, as provided for in this legislation, is seeking to have an interim control order, there must be, when putting forward their case to the Attorney-General, a full explanation of why and also why not—what would be the impact of asking for that particular control order change? That would mean that there would be a record of the reasons for the decision that was made.

We know that, over the last few months, the issues of control orders have been very significant in the community—the operation of control orders, to whom they will apply, what will be the arguments for them and the decision-making process for that have all been subject to considerable concern in the wider community. In fact, in the earlier bill, one of the issues was whether there would be a sunset clause into the future so that the whole use of control orders would be considered again—so we would not automatically continue to have this process in our system, because there are questions about whether this is the most effective way. The important thing is that these issues were raised and that there has been, through this piece of legislation, a response to ensure that there will be justification for such a significant decision from the Attorney-General.

There is also the retention of the requirement for the AFP to explain to the issuing court each condition in a draft control order. The bill as introduced would only require the AFP to justify the control order as a whole. This is a detail of justification, making sure that there is understanding of why each element of the draft control order is justified. This makes sure that a need is identified so that the decision is made with full information. The shortening of periods for notification of the relevant minister when agencies issue emergency authorisation makes sure that there is not an unlimited-time process in place so that, once a decision is made, it would go on into the future without any termination.

One of the issues about which I have been most concerned over the previous months is a feeling that has been put forward in the community that the Labor Party has just waved this legislation through and that we have rolled over and said, 'Okay, government, you can have anything you want. We are not concerned about looking at how these bills will operate.' That is not right. It is very important that the community understands that, through the processes in an effective system of scrutiny, there have been major questions raised about the proposed legislation that has been put forward by the government. There has been an extraordinary effort made by all members of the joint parliamentary committees of intelligence and security, and of human rights. This legislation has not just been waved through. There has been real scrutiny.

Many people will feel that the limitations in the legislation have not been strong enough, and that is their right. They will view the legislation as being too strong. They will believe that there is too strong a focus, and that there is a limitation to rights. Labor believes that there has been a balance struck between acknowledgement of the danger and threat—and that changes have to be made—and ensuring that there is effective legislation and effective review so that people in Australia can feel safe and know that their rights are protected.

That is a tough balance, but we believe that that balance has been reached. That balance can only be maintained if the effective scrutiny in the system is retained and if there is appropriate resourcing to those scrutiny mechanisms. Should that be in anyway diluted, that incredibly important element of community trust—and, indeed, parliamentary trust—will be lost. If that is lost this legislation will lose its impact.

When the government moves legislation that affects the community's freedoms and rights as well as their security, if the community does not believe that the government has their best interests at heart we will have lost, because we will not have maintained the community feeling which is so important to Australians. Our clear message to the government is that we will support appropriate security legislation. We acknowledge that Australians are becoming much more aware of the dangers that are arising out of the militancy and the horrors of what is happening in the Middle East. However, we must ensure that at all times our parliament does its job to effectively scrutinise anything that comes before us. And that will be the message that we will continue to take through what will be an ongoing process.

This process must continue to look at the threats and ensure that we respond appropriately in Australia. But that must mean that the community is involved, as well, because this legislation does not belong to government; this legislation must be supported and owned by the wider community.