Nick Xenophon (SA, Independent) Share this | Hansard source

This Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 is the latest in a long line of counterterrorism national security bills to be introduced into this parliament in the 15 years since the terrorist attacks of September 11, 2001.

Australia did not start with a blank slate of counterterrorism laws in 2001. The Australian Security Intelligence Organisation and the Australian Federal Police already had significant investigative powers. But in the subsequent decade and a half, successive governments and the parliament have repeatedly added to and elaborated on national security and counterterrorism laws. As I noted recently in speaking about another piece of legislation, since 2001 the parliament has passed more than 70 different bills dealing with terrorism and, more broadly, with national security issues. The exact number depends a bit on questions of definition; but the overall volume of new law is clear.

Much of that legislation was debated and enacted during the life of the Howard government. However, since I came into the Senate in July 2008, eight years ago, some 16 counterterrorism related bills have been introduced into the parliament, including those presently before the Senate. We now have a very extensive and complex set of counterterrorism laws. These laws are of great significance to national security and community safety as well as to the rights, liberties and privacy of all Australians.

I echo the remarks of former Senator John Faulkner, former Special Minister of State, Minister for Defence and Leader of the Opposition in the Senate. He said that 'with increased powers come increased responsibility to scrutinise those powers'. I could not agree with him more. Although at times there have been negotiations and compromises for specific provisions, the vast bulk of this legislation has enjoyed strong bipartisan support from the coalition and Labor, whether either is government or in opposition. Dissenting voices have been heard mainly on the Senate crossbenches and among some of the Independent MPs in the other place.

But today we have another counterterrorism bill. It is not entirely new. This bill is comprised largely of measures that were included in the 2015 bill that was referred to the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, but lapsed in the prorogation of the 44th Parliament. The proposed legislation has now been amended by the government to reflect recommendations of the PJCIS. The legislation also includes new measures recommended by the Independent National Security Legislation Monitor, an office the Attorney-General was keen to abolish in the last parliament, but which was fortunately reprieved. In introducing the original bill in 2015, the Attorney-General said that the proposed legislative changes:

… reflect lessons learned from recent counterterrorism investigations and operational activity.

He made a similar statement in introducing the new bill last month.

Learning from experience is important. The record of our intelligence and security agencies in countering terrorism over the past 15 years is one of considerable success. They have exercised the considerable investigative powers available to them. Although the terrorist threat in Australia has not been at the levels it has in some other countries, it is significant; serious threats and plots have been detected and thwarted, and many innocent lives saved. Our intelligence and security agencies have demonstrated considerable professionalism, but, like all government agencies, they are far from infallible.

There have also been some very significant missteps: the case of Dr Mohammed Haneef, involving the provision of incorrect and misleading information from British police counterterrorism investigators to the Australian Federal Police, which, in turn, failed to assess that information properly. A review by the Inspector-General of Intelligence and Security in the case of Mamdouh Habib found that the Australian Security Intelligence Organisation repeatedly failed to properly document key decisions, including dealings with foreign security and intelligence agencies. Senior officers subsequently claimed to have little or no recollection of key events.

There have been instances where agencies have failed to provide appropriate information to the IGIS, and at least one case where an agency—the Australian Secret Intelligence Service—intentionally sought to mislead the IGIS. We are presently awaiting the findings of the New South Wales coronial inquiry into matters relating to Man Haron Monis and the Martin Place siege of December 2014, and the subsequent tragic deaths of two innocent people. Some of the evidence presented to the inquiry clearly raises serious concerns about the investigative and analytical capabilities of ASIO and the AFP, as well as the operational response of the New South Wales police. Our intelligence and security agencies already have very extensive powers and resources but are not infallible, and for that reason there needs to be very careful scrutiny, not only of their operational performance but of all proposals to modify, increase or otherwise change their powers and responsibilities.

The legislation before the Senate contains many provisions of considerable complexity. Many proposed changes relate to control orders, including—notably—lowering the minimum age at which a control order may be imposed from 16 to 14 years of age. Regrettably, this appears both necessary and appropriate, with the accompanying safeguards, given the trend towards radicalisation of small numbers of young people and their consequent potential involvement in terrorist activity.

I want to focus on two parts of the bill that are of continuing concern and worthy of particular scrutiny. The first of these concerns is the handling of national security information in control order proceedings. As senators are aware, the existing legislation concerning control orders allows the police to seek control orders that impose significant restrictions on the movement and activities of persons who are judged to pose a significant risk of involvement in terrorist activities but who have not necessarily been charged with any actual crime. In effect, the imposition of a control order can amount to a form of house arrest.

The bill will allow courts to consider information that is not disclosed to a person subject to a control order or to their legal representative for security grounds in control order proceedings, and will introduce a system of special advocates to represent the interests of those people in proceedings from which they and their legal representatives have been excluded. The special advocates scheme is a new measure that has been introduced in response to concerns about the procedural fairness of the original scheme proposed in the previous 2015 bill.

The Attorney-General set out the government's explanation for these proposed arrangements in his second reading speech, in which he said:

With the increased tempo of counter-terrorism operations, it is sometimes necessary for our law enforcement agencies to take action earlier to protect community safety. To prevent death or serious harm, agencies may need to act before a full brief of evidence can be developed.

Let me emphasise: that is action 'before a full brief of evidence can be developed'. The Attorney-General went on to say:

… agencies will need to place a greater reliance on information from intelligence partners and sensitive sources.

The changes introduced in this Bill will provide greater protection to national security information that is considered in control order proceedings. This is vital in order to maintain critical intelligence partnerships and to protect sensitive capabilities.

The Senate should carefully consider what is involved here. Our courts have long handled national security information, but this is a regime that envisages court decisions to impose control orders—in effect a form of house arrest—will be taken entirely in secret, with the person affected, and their legal representatives, completely excluded from the proceedings.