Rex Patrick (SA, Centre Alliance) Share this | Hansard source

I think most people would be quite surprised to learn that ministers of state do not require a security clearance, that ministers of state get access to the most sensitive of government information, including having access to cabinet information, yet there is no security check. So I'm pleased to have this opportunity to add to the observations I made in my second reading speech when I first introduced the Ministers of State (Checks for Security Purposes) Bill 2019.

On 4 July, the Senate referred the bill to the Finance and Public Administration Legislation Committee for inquiry and report, due by 11 November. That committee will, one hopes, conduct a thorough and long overdue examination of the important issue this bill seeks to address, which is security at the highest levels of government.

The exemption of ministers from any mandatory security-checking process is a dangerous anomaly and a significant gap in Australia's protective security framework. The bill establishes a framework for ministers to undergo a security-checking process by ASIO that is equivalent to and as rigorous as that imposed on all other persons with access to our nation's most sensitive and highly classified secrets. The purpose would be to provide security advice to the Prime Minister.

In the event that the security background check reveals an area of security concern, the Prime Minister would be free to determine what steps might be required to resolve the matter. The PM is, and would remain, the absolute decision-maker with regard to who is recommended to the Governor-General to serve in a ministerial office and have access to our nation's innermost decision-making and most sensitive secrets. What this bill will do is ensure that the PM is fully advised of any security issues that may arise from a comprehensive background check—something that is not mandatory now. To be very clear, this security check could not be used for any other purpose other than to inform the Prime Minister, and only the Prime Minister, of the day—and it's so framed in the bill. If the Prime Minister changes, the new Prime Minister cannot have access to previous assessments, only to assessments on ministers who are members of their cabinet.

The necessity for improving security across the board was again highlighted last week by the outgoing Director-General of Security, Duncan Lewis, who, in an interview with The Australian newspaper, warned in blunt terms that Australia faces an 'unprecedented' wave of espionage and foreign interference. Mr Lewis warned that 'the espionage threat showed no sign of abating/, while 'unwelcome influence within Australia’s political system is now widespread'. He said:

It is an unprecedented level of activity … it’s not visible to most people.

The government and the parliament have already responded to these national security challenges, notably with the introduction of new laws to deal with foreign espionage and covert political interference and with the establishment of a foreign influence transparency scheme, which is administered by the Attorney-General. This bill supports the objective of the recent legislation by providing the Australian public with greater assurance that security will be maintained at the highest levels of the Australian government.

Regrettably, it cannot be assumed that persons appointed to high political office will always be free of characteristics, activities, associations, connections or obligations that may compromise or risk the compromise of national security within the executive government. Human frailty being what it is, elected parliamentarians and ministers are not immune to weaknesses and temptations that in rare but significant cases may lead to involvement in espionage and, indeed, treason. At the end of the Cold War, the publication of secret Soviet intelligence files showed that the KGB had enjoyed success in recruiting as agents not just Western government officials but also parliamentarians and ministers in a number of Western countries. In the United Kingdom, for example, at least two former British Labour MPs were identified as agents recruited by the KGB. Two other Labour MPs, including one minister in the Harold Wilson government, have also been confirmed as having been paid agents of the communist Czechoslovakian intelligence service, the StB. Here in Australia, the publication of KGB archives, as well as the release of ASIO files by the National Archives, revealed that a former federal member for Hunter, the late Bert James, was a covert source for the Soviet embassy. Another Labor MP, the late senator John Wheeldon, was involved in a sex espionage scandal involving the chief KGB officer in Canberra and a French embassy official. Wheeldon was later a minister in the Whitlam government.

The Cold War is long over, but, if anything, the counterespionage and challenges that Australia now faces a much greater than ever before. China, the rising regional power, already enjoys considerable access to and influence within the Australian political system, from local governments to state parliaments and here, the national parliament. Security issues involving elected MPs and ministers have always been politically sensitive, and there has long been a reluctance to require ministers who are elected representatives to undergo any security checking processes. I might point out that there are some suggested constitutional concerns because of the separation of powers, but we must remember that members of parliament and senators, who are in a separate pillar in respect of our government, are occasionally ministers, and it is when they are ministers that they fill a role in the executive, so there is no constitutional impediment to this bill proceeding. We don't have security clearances. In the current security environment, this can no longer be acceptable.

Recent experience concerning the noncompliance of MPs and senators with constitutional requirements for election to parliament shows that the party preselection processes and electoral and media scrutiny, as well as selection to serve on the ministry cannot be relied on to identify matters that would be an issue in a security background checking process. Instances of corruption or other embarrassing incidents involving Australian political figures show that ministers may succumb to temptations that may make them vulnerable to compromise. Over the past decades, specific security issues have arisen in relation to ministers and shadow ministers. One case which I have previously discussed in the Senate, in an adjournment speech, is the relationship between member for Hunter and former defence minister Joel Fitzgibbon and Chinese Australian property developer Helen Liu, a person who is directly linked to senior Chinese military intelligence operatives. Senators would also be familiar with matters that lead to the resignation of former senator Sam Dastyari. He was a very buoyant chap, and I'm sure he would have gone on to become a Labor minister. I make no judgement about the member for Hunter, or, indeed, former Senator Dastyari. Suffice to say, these matters are precisely the sorts of issues that would be appropriately addressed by a security checking regime.

As I pointed out in my second reading speech, Canada has taken up the practice of security checking its federal ministers. That process has been adopted by successive Canadian governments and also extends to security checking MPs who serve on Canada's National Security and Intelligence Committee of Parliamentarians, the equivalent of our Parliamentary Joint Committee on Intelligence and Security. Once again, we now see in legislation, slowly creeping in as we introduce more powers, the ability of the PJCIS to examine some elements of what it is that our security services do. Yet, none of the members who are on that committee are required to have a security check of any sort. So, an additional issue which the Finance and Public Administration Legislation Committee might wish to consider is the question of security checks for members of the PJCIS.

This bill is designed to be fully consistent with the Prime Minister's responsibilities in selecting and leading the cabinet and ministry. It would be naive to think that Australian ministers of state will always be immune from failings that may make them vulnerable to compromise or tempt them into behaviour that may harm national security. They should be subject to security checking equivalent to what is done by or that applies to many thousands of public servants and Defence Force personnel who have access to highly classified information.

I'm not suggesting, and the bill does not suggest, that the security services have any vetting role over a minister—to be very, very clear about that. The bill requires that a report be compiled for the Prime Minister and only for the Prime Minister, and what the Prime Minister does to deal with any concerns that may be raised in the report it is at the discretion of the Prime Minister. When he has finished with that report, it returns to the Director-General of Security, where it will be locked away, and the bill explicitly states that report can be used for no other purpose.

I might just reflect on last week when we were discussing the TEO bill, the temporary exclusion order bill. A process has been enacted in law now—unfortunately, in my view, on account of the lack of protections for flawed evidence. In that particular bill, the home affairs minister makes a determination based upon advice from ASIO—presumably classified advice. He or she then passes their decision to a review authority, who is security cleared, to conduct a quick review. But the bill allows for the minister not to pass on the ASIO assessment if it's not in the public interest to do so. The irony—the dichotomy—of that particular arrangement is that the review authority is required to be security cleared, but the minister who makes the decision, who sees the most sensitive information, is not required to be cleared. That creates an anomaly. I'm not suggesting anything in relation to our current home affairs minister; I'm just using that as an example that most people would say is odd.

At the very start I suggested that most Australians would be unaware and would think it very odd that our ministers who access briefings from all of our intelligence services, see sensitive information from foreign governments, get access to sensitive information from companies, and generate their own sensitive information are not security cleared. This bill will plug a major gap in Australia's protective security framework, and I commend it to the Senate.