Jenny McAllister (NSW, Australian Labor Party) Share this | Hansard source

I rise to speak in favour of the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016. This bill was first introduced into the last parliament in November 2015 and was immediately referred, of course, to the Parliamentary Joint Committee on Intelligence and Security. The joint committee held public hearings and received submissions in December 2015 before reporting in February 2016, and the parliament was, of course, prorogued before either house had a chance to consider the bill.

Before turning to the specific provisions of the bill I wanted to take a moment to discuss the importance of this oversight process provided by the parliamentary joint committee and to touch on Labor's approach to security legislation in general. Since the September 11 attacks in 2001, the Australian parliament has debated and enacted 65 pieces of anti-terrorism legislation. Taken together, they constitute substantial changes to the architecture of Australia's security legislation framework. These changes have been made in the face of emerging and serious threats to our national security. These threats are not abstract and they are not distant. Australians have been affected by terror plots both at home and abroad, and the work of our law enforcement and security agencies has prevented Australians from being affected by many more.

Earlier this year we understood that there were more than 100 Australians fighting or engaged with terrorist groups in Iraq and Syria and many more providing support or facilitation from Australia. Australia's national terror threat is currently set at 'probable'. This means there is credible intelligence indicating that individuals or groups have both the intent and the capability to conduct an attack. It is incumbent upon us to respond properly to this threat. As a parliament we have no more important responsibility than to do what is appropriate and necessary in protecting the safety of the Australian people. However, we will not meet this demand that is made of us by simply voting in favour of security legislation in the form in which the government initially proposes it. Parliament must endeavour to find a balance between protecting the safety of our community on the one hand and maintaining the values and the freedoms of our community on the other. The Parliamentary Joint Committee on Intelligence and Security plays an important role in finding this balance.

I was not a member of the joint committee when it considered the present bill, but it is worth turning to what the chair of the joint committee said in the other place when tabling the report on the bill. He said:

I commend the bipartisanship of the committee, but 'bipartisanship' should not be taken to mean that we all sit there and agree with each other on every matter that we have discussed. I can say without breaching any provisions of the Intelligence Services Act that on many occasions there has been much robust conversation with respect to that, but that is the job of our committee—a committee behind closed doors that operates on behalf of the Australian people.

Indeed, in my short time on the committee this has been my experience. As a party, Labor seek to approach security legislation from the position of bipartisanship. We believe that our national security apparatus must be properly equipped to protect Australians from terrorism and this means providing security agencies and institutions with the resources and powers that they need to do this. It is, however, worth repeating what Senator Collins said earlier in the debate today:

…our bipartisan assistance to the government on matters of national security is never a blank cheque. Bipartisanship on national security means that we will support necessary and effective measures to address threats to our nation …

The converse is also true. Ultimately, as a parliament we abrogate our responsibilities if we knowingly support measures that burden people's rights but are not necessary or effective in addressing threats to our nation. The oversight provided by the Parliamentary Joint Committee on Intelligence and Security is an important bulwark against this, and, for reasons I will go on to explain later in the speech, the present bill provides an example of how the joint committee can work together to make sure that security legislation is more appropriate, more properly targeted and more proportional.

As I noted before, however, the Australian parliament has debated and enacted 65 pieces of anti-terrorism legislation since 2001, and with each additional piece of security legislation we are providing greater and further powers to our national security agencies and institutions. Our agencies cannot function properly without the trust and confidence of the public, and nor should they be allowed to. Reliable, effective external oversight is essential in ensuring this. As the powers of the national security agencies grow, so too does the importance of oversight. This is not something that can be left to the courts. A judicial system of course plays an important role in policing the boundaries of executive activity; however, Australians would not, and should not, be satisfied with merely knowing that there is an absence of illegality in the cases that happen to come before the courts. Parliament also plays an important role in ensuring that legislation is appropriate and proportionate.

This is not enough, however. Australians deserve to know that their national security agencies and institutions are effectively, efficiently and appropriately serving the purpose for which they were created, and the joint committee is the forum in the parliament that is best placed to do this job. I quote again from the tabling speech in the other place by the Chair of the PJCIS:

Fundamentally I think the Australian people need this committee to have the capacity to inquire more diligently and more thoroughly into matters that it should be tasked to look at. That would include, potentially, the capacity for the committee to have self-referencing power …

It is for this reason that I commend to this chamber the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015, which is sponsored by Senator Wong. As noted in the second reading speech for that bill:

The maintenance of public security in the current security environment does require enhanced powers for the agencies charged with this responsibility. However, the protection of our hard-won democratic freedoms equally demands enhanced oversight of the exercise of these powers.

The PJCIS Amendment Bill 2015 provides for enhanced oversight by, amongst other things, removing the constraints on membership of the committee and allowing greater flexibility in determining PJCIS membership; providing for the PJCIS to conduct own-motion inquiries after consultation with the responsible minister; authorising the Independent National Security Legislation Monitor to provide the PJCIS with a copy of any report on a matter referred to it by the committee; requiring the Inspector-General of Intelligence and Security to give the PJCIS a copy of any report provided to the Prime Minister or a minister within three months; giving the PJCIS the function of conducting pre-sunset reviews of legislation that contain sunset provisions; and adding the Independent National Security Legislation Monitor and the national security adviser to officers who are able to be consulted by the PJCIS. This is a good bill that will provide necessary and appropriate powers to an important parliamentary body.

I will now return to the bill before us, and I thank the chamber for their indulgence. As I mentioned earlier, the bill provides an example of how the joint committee works in a bipartisan way to make sure that security legislation is more appropriate, more properly targeted and more proportional. The bill that is before the chamber now is not the same as the bill that was introduced in the last parliament. The 2015 bill was referred to the joint committee immediately upon being introduced, and the committee received 17 submissions. The committee made 21 recommendations, subject to which it recommended that the bill be passed. These recommendations have resulted in improvements to the bill which is now before the chamber.

The bill extends the control order regime to young offenders. The committee made a number of recommendations about these provisions. The committee recommended that the bill require the best interest of the child to be a primary consideration. This ensures that the bill is consistent with Australia's obligations under the United Nations Convention on the Rights of the Child. The bill now contains provisions to this effect. The committee also recommended that the bill be amended to expressly provide that a young person has the right to legal representation in control order proceedings. The bill now contains provisions to this effect. As Senator Collins said earlier in this debate, Labor pushed for these amendments in order to make sure that the legislation properly balanced the rights of young people who are the subject of control order proceedings with the safety of the Australian community as a whole.

The committee also made recommendations about the creation of a new offence of 'advocating genocide.' The creation of this offence is in line with the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The joint committee recommended that a fault element of 'recklessness' be included as there were concerns raised by submitters that the offence was drafted too broadly. Specifically, submitters raised concerns that the offence as drafted could have the unintended consequence of limiting reporting of terrorism. The 2016 bill now includes the fault element as recommended.

As Senator Collins set out, there are a number of other recommendations made by the committee, which Labor has pushed to have as amendments incorporated into the bill. Our commitment to bipartisanship does not mean that we offer the government a blank cheque on security legislation—nor, for that matter, do the government's own parliamentarians. In this case, as in many others, the Parliamentary Joint Committee on Security and Intelligence provides an important mechanism for the parliament as a whole to provide proper scrutiny of security legislation, and to make sure it operates as intended and protects our community without unnecessarily burdening individuals. I hope in due course that we will have another opportunity in this place to further consider Senator Wong's private member's bill to enhance the committee's ability to perform this oversight function.