Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Hansard source

I politely invite Senator Roberts and Senator Hanson to listen to my contribution this morning, which is obviously going to be quite different to theirs. I might start by talking about a piece of art, a portrait that I have hanging on my wall here in parliament. It's my own. It's not a portrait of me, but it's my own art—unlike Senator Bernardi, who I understand does have a portrait of himself in his house. But I digress. I bought it at a jeans shop for $80, and it's very special to me. It's a portrait of someone who I believe to be a great Australian man, and his name is Terry Hicks. What's also special about the portrait is that it was spray-painted by a Tasmanian artist at an Amnesty International conference in Hobart a few years ago. I bought it and put it up on my wall because Terry Hicks is a personal hero of mine. I think everybody understands he crusaded for many years to bring his son, a foreign fighter by any definition—text book definition, any broader definition—back to Australia.

Terry Hicks was open and honest with the Australian public in his campaign to bring his son back to Australia. He said his son had been stupid, had participated in a dangerous activity, had broken the law and potentially committed crimes, and he should face the full force of the law. A man, a father's love for his son brought his son, David Hicks, back to Australia. He went through an incredibly difficult 10 years. He stood in a cage in Times Square in New York while people spat on him. He did whatever it took to highlight that his son was a human being, had made a mistake, had been highly vulnerable like a lot of young men are to the hatred and violence that's preached and radicalises young men not only in this country but all around the world. He argued to the Australian people, and successfully in the end, that his son deserved a chance at redemption, that his son deserved to come home to Australia. That's a powerful story.

Do I think that all foreign fighters want redemption and the chance of redemption? No, I don't. I think many of them want martyrdom. Do I believe that all foreign fighters should be redeemed? That is highly debatable. Do I believe that foreign fighters, if they have committed heinous, violent, criminal acts should face the full force of the law? Yes, I do. Do I believe that those kinds of people in Australia should be behind bars for our safety? Yes, I do believe that.

What I question—that's fundamental to this bill—is who gets to decide whether someone gets a chance at redemption if they want to come home to Australia? Am I happy with the fact that our minister in this portfolio, Mr Peter Dutton, gets to decide who gets a chance at redemption? No, I'm not. Am I happy that a secret process that involves a minister, an often highly political environment and an intelligence agency making deliberations in a highly-secret environment get to decide who gets this chance? No, I'm not happy with that either. My colleagues have made very powerful arguments, as have other senators in this chamber, in the last 24 hours about the need for judicial oversight, separation of powers and the need to have a process that at least gives a right of appeal and doesn't hand unilateral decision-making process to a minister of the Crown. Enough has been said on that.

I would like to raise an issue that hasn't been raised in this debate so far that I think absolutely needs to be raised as a matter of public interest and that, I believe, has been an oversight. It's important in the context of what I raised about David Hicks and Terry Hicks because, when we have debated this bill in this chamber, the focus has been very clearly on foreign fighters, but if you have a look at clause 10 of this bill—making a temporary exclusion order—paragraph (2) says:

(2)   The Minister must not make a temporary exclusion order in relation to a person unless either:

  (a)   the Minister suspects on reasonable grounds that making the order would substantially assist in one or more of the following:

  (i)   preventing a terrorist act;

  (ii)   preventing training from being provided to, received from or participated in with a listed terrorist organisation;

  (iii)   preventing the provision of support for, or the facilitation of, a terrorist act;

  (iv)   preventing the provision of support or resources to an organisation that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code; or—

and this is the bit I would like to focus on—

  (b)   the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of the Australian Security Intelligence Organisation Act 1979) for reasons related to politically motivated violence (within the meaning of that Act).

Is that definition broad enough to allow the minister to decide whether someone has citizenship rights in this country if they deem a person, an Australian citizen, to be a threat to national security? Well, I'm not a lawyer, but I have checked with legal experts and with the Australian Lawyers Alliance and their spokesperson on criminal justice, Greg Barns, and their comments were that this provision is extraordinarily broad. How might ASIO think that a person is directly or indirectly a risk to security because of some link to terrorism or concerns over politically motivated violence? What exactly does that mean? Would this clause allow a minister, under a secretive process with no recourse, total power to make deliberations about an Australian citizen overseas who may be a journalist or a whistleblower or who may be passing on secret information that they believe is in the public interest and is part of their role as a journalist? Could this interfere with press freedoms? Well, the Australian Lawyers Alliance say yes, that is what they believe.

So yet again we have another law before this parliament that allows Minister Peter Dutton extraordinary power over whistleblowers and journalists that this government—remember the political context of this—may consider to be a threat to national security. We see whistleblowers, media organisations and journalists who have published material, such as, in the very famous case of WikiLeaks, the Iraq war logs, or even the trove of materials that Edward Snowden released, which was published all around the world. Much of that work received big journalism awards for acting in the public interest. How is it that this parliament is going to pass a bill that gives those kinds of powers to a minister at a time when there are especially significant concerns in this country over what we have seen as a crackdown on press freedoms even in recent days and recent weeks, let alone lingering concerns that we have debated in previous legislation around the powers of our national security agencies? Take WikiLeaks. Does any senator in this chamber believe that ASIO, for example, may not make an adverse finding against someone in WikiLeaks or working for WikiLeaks on the basis of past history? We know that the issue that WikiLeaks is a potential threat to Australia's national security has already been raised by ASIO under previous administrations.

We had a very clear situation in the United Kingdom with David Miranda, a Brazilian national who was stopped in transit between Berlin and Rio de Janeiro after meeting a filmmaker. He had been carrying encrypted files, including an external hard drive containing 58,000 highly classified UK intelligence documents that had been released by Edward Snowden. In order to assist the journalistic activity of Greenwald, The Guardian had made his travel reservations and had paid for his trip.

As it turned out, he was detained under a law in the UK that essentially labelled his activities as 'terrorist activity'. He was seized and put into detention, even though the courts agreed it was an indirect interference with press freedom. The security agencies in the UK took a journalist, seized his documents and held him in detention under a terrorism law—a new law that had been brought in that allowed them to do so. So clearly a national security agency had made a decision that a journalist carrying out their job was contrary to the UK's national interests and, indeed, was a threat to the UK's national interest.

It's interesting that that same journalist was awarded a journalistic prize. Even though a Pulitzer Prize was given to Greenwald, Miranda, The Guardian and The Washington Post for publishing the Snowden material, which revealed illegal spying and surveillance of the US and its allies in the post-9/11 world, and even though they'd won the biggest global journalistic prize in recognition for their work, they were labelled as terrorists. Acting Deputy President Farrell, you know that in this place I have queried the use of that word. I have grave concerns. I think it's one of the most misused words in the English language. It's highly subjective. It's often a real problem for the media to use that word, but throwing that word around is not a problem that politicians have. We have very strict definitions in our country as to what constitutes a terrorist activity, but, in my opinion, it is one of the most misused words in our modern dialogue.

A number of very high-profile politicians have called those journalists terrorists because they believed that the releasing of these documents had aided and abetted terrorist organisations. It's a very fine line that we deal with here, and I happen to believe that journalists going about their job in what they believe to be the public interest shouldn't be put in the firing line. We shouldn't be giving extraordinary powers to Minister Peter Dutton and our national security agency to make a determination as to whether you are an Australian citizen, have the rights of an Australian citizen and can re-enter the country.

Let's go back to David Hicks. What underlined that campaign was that he was an Australian citizen and he had rights to come back into this country. Regardless about what you thought about what he did and the situation he found himself in, where he ended up in Guantanamo Bay, he was brought back to Australia by a conservative government, as it turned out in the end, because he was an Australian citizen and he had rights. This bill gives the ability to a minister to take away those rights. This bill gives the ability to a minister to take away the rights of whistleblowers and journalists who may simply pass on information. And it may not necessarily be about Australia's direct national interests; it may be that one of our allies requests that the information that had been passed on is not in our national interest. It's been well covered in this chamber already.

I'd like to raise a couple more issues in the few minutes that I have left. Firstly, I understand that we've got a lot of work that we have to do in this place. We've got some huge issues facing our country and our future, and I do question whether this bill is just part of an ongoing culture war. Yes, I do see sinister intent behind this, but I also see political intent. I see a government wanting to go out there and, straight out of the conservative rule book, flag that it's strong on national security and strong on defence, those paternal characteristics that so underpin conservative politics. As we understand from Labor's contribution yesterday, the bill's been questioned by the closed-shop, black-box joint parliamentary committee of Labor and the Liberals. It's been questioned by them. We understand the government won't be tabling advice from the Solicitor-General, which no doubt also questions the legality and constitutionality of this bill. It's been rammed through this place, and for what purpose? Well, I reckon it's for political purposes. You can argue all you like that the government needs more powers to hold foreign fighters to account—or whistleblowers or journalists to account—but it can't be done at the expense of due process. It can't be done at the expense of taking power away from the parliament and giving more power to the executive.

And I've got to say: I heard Senator Keneally's contribution in here yesterday and she provided a very detailed, very moving account of why we should be rejecting this bill. Considering all that Labor have provided in the last 24 hours about why this bill shouldn't be passed by parliament, why it should be rejected, for the life of me I don't understand why Labor would vote for this bill in the end. I get that they believe they're a party of government and there's this longstanding convention that they support each other in matters like this, but I don't accept it. That's not a good enough reason. It's actually weak. I get that they want to play small target so they're not criticised by the government's propaganda arm in some of the Murdoch publications. I get it. But it's not a good enough reason for turning your back on a very sinister piece of legislation and a new law that gives extraordinary powers to a minister and our national security agency.

I haven't heard anything from Labor—even though they might say, 'We're a party of government and we don't want to be criticised for this; we've got other things we want to focus on'—about them repealing these laws. I'm happy to be proven wrong, if they become a party of government. This is the problem: with this ratchet effect, I'm highly doubtful and very cynical that Labor, if they got into government, would claw back any of these extraordinary powers that have been given to our Border Force minister.

I stand with my colleagues the Australian Greens, Senator Patrick and others, who are the real opposition in this chamber, who are prepared to stand up and say, 'This is totally unacceptable.' We all agree that we need to work to manage the risks to our citizens. We all understand the importance of national security. But some of us understand the importance of due process and not giving too much power to the executive. I'm sorry, but I do not see the people that we have pulling the levers in this country as the kinds of people I want to give new extraordinary powers to. There must be checks and balances. There must be due process. It is simply unacceptable that we can't do our job in this place—that we can't access documents and we can't have a Senate inquiry into the kinds of processes we're seeing set up, outside the two major parties, who are a closed shop on national security and always have been. Given this day and age, with the multitude of threats and challenges we face, it needs to be opened up to the Senate and it needs to reflect what the Australian people voted for, and that is a diverse Australian Senate.