Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

I rise to speak on the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019. I say from the outset that Labor has always, always supported the intent of the temporary exclusion orders scheme. This is an appropriate scheme to manage and control the return of Australian citizens who have gone overseas and may have fought as foreign fighters.

Successfully managing the return of foreign fighters is critical to ensure the safety and security of the Australian community. It was an issue that we, as developed, democratic nations, were always going to be faced with, particularly as the so-called caliphate collapsed. No country can pretend that the problem of foreign fighters does not exist. Each country must accept responsibility for their citizens, and the complexities associated with such a task is what this legislation seeks to address. This counter-terrorism bill introduces a temporary exclusion orders scheme which would enable authorities to delay and control the return and re-entry of Australians of counter-terrorism interest into Australia until appropriate protections are in place, and enable the Minister for Home Affairs to impose conditions on such individuals once they have returned to Australia, to manage the risk that they may pose—for example, reporting requirements. Again, Labor has always supported the intent of this scheme and we have always sought to see a scheme implemented as this legislation intends.

The Morrison government first announced they would create a temporary exclusion orders scheme on 22 November 2018. Some three months later, the Minister for Home Affairs introduced legislation into the last parliament on 21 February 2019.

The government then agreed to refer the legislation to the bipartisan Parliamentary Joint Committee on Intelligence and Security, commonly known as the PJCIS. The government agreed to refer this bill to the PJCIS, knowing full well that it would be making recommendations on ways to amend their own legislation. This is an important point: people can often assume that legislation, particularly national security legislation, automatically gets referred to committees. But more often than not—and as is always the case with the PJCIS—the government must agree both to the legislation being referred and to the time line in which the inquiry takes place.

I note that the government, just today, has been debating legislation in the other place to repeal medevac. At the same time, they have agreed to an inquiry into the medevac bill. That inquiry does not report until October. The laws to repeal medevac won't be able to be debated in this chamber until November at the earliest. I make this point to illustrate that this is how parliament operates: to interrogate laws and scrutinise them; to make recommendations; and, ultimately, to amend legislation to improve it.

This is particularly the case with the bipartisan PJCIS. It has operated in some fashion like this since 1986, to ensure that Australia's national security laws are fit for purpose, robust and legal and constitutionally valid. Most importantly, today the Liberal-dominated committee, chaired by Liberal MP Andrew Hastie, works to ensure that our national security laws work. The bipartisan PJCIS made 18 substantive recommendations to the temporary exclusion orders legislation. I will come to these recommendations and the government's response shortly. But firstly I would like to address the need for the temporary exclusion order scheme.

In early May, the US Secretary of State, Mike Pompeo, said that the United States had an expectation:

… that every country will work to take back their foreign fighters and continue to hold those foreign fighters, …

Despite what some would say have been many years of warning signs that the thousands of foreign fighters would need to return home at some stage, Mr Pompeo made this plea after too few countries had the right plans in place. He went on to say that it was 'essential' for every country to do its part. Unfortunately, this process of repatriation and serving justice will not be easy for Australia or other like-minded countries. This is especially the case when we consider determining who exactly is a foreign fighter and what the crimes are that they have committed.

Those who took up arms on the front line in Syria and Iraq may be easily classified, but a successful prosecution relies on sound evidence. And what do we make of the women and children who either went overseas voluntarily or were taken against their will into the so-called caliphate? Where do we draw the line between fighter and victim? And can they be both? It's important to note that children under the age of 14 make up a significant portion of the 80 Australians the government says are overseas in conflict zones. These 80 people are people that the government says TEOs could be applied to. We also know that other children, outside this group of 80, have been taken there or were born overseas to Australians.

The government needs to be clear to whom and to how many people these TEOs could apply. Today on Sky News, the Minister for Home Affairs refused to answer how many people the scheme could apply to, and he refused to answer how many Australian children are counted in the figures we've seen reported of people who are overseas. From the reports I have seen, there are large numbers of Australian children and women overseas, and a small, defined and known number of males. I would expect—and I trust—that our national security and intelligence organisations know who these people are and, largely, where they are. Whatever the numbers may be, Labor's view is that national security legislation must be carefully crafted and constitutionally valid. We need a temporary exclusion order scheme that works, otherwise there is no point in having such a scheme.

The United Kingdom introduced their temporary exclusion order scheme in 2015, some four years ago. Given that the Minister for Home Affairs here so frequently refers to the United Kingdom scheme as the model for the government's legislation, if it were not so serious it would be amusing that it has taken him four years to do this work and bring these laws before the parliament. On Monday, the Leader of the Government in the Senate, Senator Cormann, said that the government was, 'Working through national security legislation as quickly as possible.' According to the government, four years is what they classify as working as quickly as possible when it comes to responding to the need to safely receive foreign fighters back into Australia. With the United Kingdom government having their own TEO scheme in place for four years already, countless warning that foreign fighters would start to make their way home, it beggars belief that the Minister for Home Affairs did not introduce his temporary exclusion order legislation until February this year.

Indeed, we have seen media reports that some 40 foreign fighters have already returned to Australia in the four years' time that it has taken the government to introduce these laws into the parliament. We have also seen reports that of the 40 supposed jihadis that have returned, many of them may have gone over to be part of the Arab Spring, again an area in which the government has failed to provide clarity. But it does need to be asked: was it incompetence or apathy towards the risk of foreign fighters by the Minister for Home Affairs that saw him do nothing for four years to bring these laws before the parliament?

The government's model before the parliament is significantly different from the UK TEO scheme to which Minister Dutton does so frequently refer. For example, in the United Kingdom, a TEO can only be issued if the court gives the Home Secretary permission to do so, whereas the government's proposed temporary exclusion order model that was introduced in February would have meant the Minister for Home Affairs could simply issue a temporary exclusion order without any judicial oversight whatsoever. Given the Minister for Home Affairs' track record at crying wolf and bending the truth, if there's one minister who requires oversight, it is the current Minister for Home Affairs.

The government's own response to the Parliamentary Joint Committee on Intelligence and Security report shows that of the 18 recommendations made by that bipartisan committee, chaired by Andrew Hastie, the Liberal member in the other place, this government has implemented only 16 recommendations. I don't agree with that characterisation of their response and I will come back to that, but, by the government's own standards, they have failed to implement two of the bipartisan committee's recommendations. Yesterday the chair of the PJCIS, Mr Hastie, voted against his own recommendations in the other place. He said he was satisfied with the government's response. I asked: if that were the case, why did he, along with his Liberal colleagues on this Liberal-dominated committee, make their recommendations in the first place? The member for Berowra said the Parliamentary Joint Committee on Intelligence and Security is like every other parliamentary committee in this place, a committee. Well, that is not the complete truth. Since 2013, the government has not explicitly rejected a recommendation of the PJCIS. And it is not like every other committee; it is set up by its own legislation. This committee has always sought to improve and better the national security legislation in this country.

While the government will have you believe they have implemented 16 of the 18 recommendations of the PJCIS, this is not the case. Instead of agreeing to and implementing all 18 of the PJCIS's substantive recommendations, the government has in fact rejected four recommendations, only partially implemented six recommendations and ignored one recommendation—that is, to produce Solicitor-General's advice that shows that this bill is constitutionally valid. It is not clear if the government has implemented recommendation 18 of the PJCIS, advice from the Solicitor-General on the final version of the bill—that is, the government has indicated that it has obtained advice but it is not clear whether the Solicitor-General has provided advice in respect to the final form of this bill. For all we know, the government's advice from the Solicitor-General could be from the February version of the bill; for all we know, the advice that they have could say that this bill is unconstitutional. Why is it always the case with this government and the Minister for Home Affairs that they run from transparency and revel in secrecy? I say to the government: if you have advice from the Solicitor-General in relation to this bill, release it.

The claims that releasing such advice would be unprecedented are false. The government have done so with Home Affairs legislation previously. They have done so even in relation to the Minister for Home Affairs and his eligibility to sit in this parliament. The government should release the Solicitor-General's advice to assure all Australians of this bill's constitutionality.

The day this bill was reintroduced, 4 July, Australia woke up to newspaper headlines in The Australian which read 'Security bills test Albanese's mettle'. Since then I've heard constant claims from those opposite, as well as in the media, that this bill is a test for Labor. News flash: Labor is not the government. The test for legislation should be the national interest. Disappointed as I am that Labor did not win the election, that is the reality of the situation we are in. This is a test for the government to introduce legislation that serves the national interest, that is constitutionally valid and that works. That is how this place operates. As the opposition, we are here to hold the government to account and to scrutinise legislation. This is exactly what Labor did through the Parliamentary Joint Committee on Intelligence and Security. The scrutiny should be focused on the government because it is the government that sets the legislative agenda, drafts legislation and then attempts to pass it through the parliament.

In fact this bill was a national security test in actuality for the Minister for Home Affairs. He has clearly failed by choosing to break the bipartisan compact of the PJCIS. By doing this, the home affairs minister, the Prime Minister and the government are allowing a dangerous precedent to be set. The fact is that the revised TEO legislation that is now before the Senate is substantially different from the legislation introduced in February, substantially different to the recommendations made by the PJCIS and substantially different from the UK scheme to which Mr Dutton so frequently refers. This should give us pause to ask, will Mr Dutton's current version of the TEO laws actually keep Australians safe? Will they stand up to constitutional challenge and will they achieve the aims they are promising? These are questions the Minister for Home Affairs has yet to answer. This is why Labor has asked the government to refer the TEO legislation back to the PJCIS for further consideration. This request has so far fallen on deaf ears.

I note that I'm not alone in my reservations about how the Minister for Home Affairs is handling temporary exclusion orders. National security experts from the Australian Strategic Policy Institute, the Lowy Institute, the Executive Council of Australian Jewry and the Law Council have all raised concerns. John Coyne from ASPI wrote recently:

There's also no guarantee that the terror threat posed by a foreign fighter is mitigated by excluding them from returning to Australia … An Australian citizen excluded from returning to Australia under the proposed legislation may still represent a threat to Australians and Australian interests offshore.

The concerns that Mr Coyne has expressed lie in the government's overall strategy for minimising the risk of radicalised Australians who are overseas. The TEO scheme is a single piece of legislation, but it is not in itself a panacea. Temporary exclusion orders should not be an excuse to outsource Australia's global responsibilities or to pass the buck when it comes to bringing foreign fighters home and bringing them to justice. The clue is in the title: 'temporary'. However, Mr Dutton, the Minister for Home Affairs, is yet to explain exactly how Australia will ensure foreign fighters subject to TEOs aren't left to wander the globe indefinitely with the risk of becoming more radicalised and even radicalising others before they return to Australia. Regrettably, we have seen the atrocities such foreign fighters have been able to inflict on innocent lives too many times.

These things are essential as we consider the TEO legislation, because temporary exclusion orders are too important for the home affairs minister or the government to get wrong. As Labor has always stated, we support the intent of a temporary exclusion order scheme and, I should note, the return permit scheme that is part of this legislation. It would see those Australian foreign fighters returned to Australia in a manner prescribed by the minister and the government in order to ensure that Australians and the Australian community is kept safe.

It is my most deep disappointment that the government, and in particular the Minister for Home Affairs, has broken the bipartisan compact we've shared for so long when it comes to the Parliamentary Joint Committee on Intelligence and Security. I'm also disappointed that the government has chosen not to refer this legislation back to the PJCIS. We could have resolved these issues swiftly to ensure that this legislation was sound.

Labor has endeavoured to work with the government to ensure Australia has a TEO scheme that works, is constitutional, keeps Australians safe and withstands High Court challenges. In the Committee of the Whole stage, I will be moving amendments on behalf of Labor to wholly implement the recommendations of the bipartisan PJCIS, those recommendations the government has chosen to reject in whole or in part. I hope that, in doing so, Senators Abetz, Fawcett and Stoker, all of whom signed off on those recommendations—put their name to them and handed them over to the Minister for Home Affairs—will in fact support those recommendations and amendments. If they do not, I hope it does not signal the grave breakdown and demise of the bipartisan PJCIS and the important work that it has always undertaken.