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

I rise to speak on the Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019. The laws we are debating today are extraordinary, both in the powers they infer and the story of how they came to be before us. These laws were enacted in 2003 as Australians faced a very different world after 9/11 and the Bali bombings. The parliament sanctioned these laws because they thought them necessary to combat the threat of terrorism on our shores.

The powers allow ASIO to question or to question and detain individuals for the purpose of obtaining intelligence in relation to terrorist activities. With the consent of the Attorney-General, ASIO could request either a questioning warrant or a questioning and detention warrant from an issuing authority. A questioning warrant requires a person to appear before ASIO at a particular time and place for questioning in relation to a relevant terrorism offence. Questioning may occur for up to 24 hours, or 48 hours if using an interpreter. That pales in comparison to the questioning and detention warrant. Under that power, a person can be taken into custody and detained for the purpose of questioning for up to seven days. Under both the questioning warrant and questioning and detention warrant a person enjoys no privilege against self-incrimination and must not fail to give any information requested under the warrant or face up to five years in prison. A person does not have to be suspected of any wrongdoing. Rather, there must only be reasonable grounds for believing that issuing the warrant will substantially assist in the collection of intelligence—that is important in relation to a terrorism offence. Among other things, the person may be required to surrender travel documents, be subjected to strip searches and be prosecuted and imprisoned for up to five years for even disclosing the existence of the warrant itself.

These powers are clearly extraordinary—in fact, the then Attorney-General described them as such—but they were indeed for extraordinary times. Thankfully, ASIO and successive Attorneys-General have been very responsible in their use of these powers. The questioning power has been used sparingly. As at March 2018, it had been used only once since 2006 and not at all since 2010. Meanwhile, the questioning and detention power has never been used—never, not once.

Noting the extreme nature of these powers, the politicians who introduced them rightly included a sunsetting clause that would allow the parliament to consider the ongoing need for these laws as the environment changed. Now, more than 16 years after they were first introduced, we are debating whether we should extend the sunsetting provision. That is deeply disturbing on two levels. The terrorist threat in Australia has been elevated since September 2014, with our official national terrorism threat advisory set at 'probable'. As the Australian government notes, this means there is credible intelligence assessed by our security agencies that indicates individuals or groups continue to possess the intent and capability to conduct a terrorist attack in Australia. Australia and Australians continue to be viewed as legitimate targets by those who wish to do us harm and believe they have an ideological justification to conduct attacks. In the face of this threat, you would expect that this Liberal-National government would be leading the way on strengthening our defences and ensuring our national security. After all, the Minister for Home Affairs has told us that his responsibility as the home affairs minister is to do 'all that I can to keep Australians safe'. But the Australian people are fast getting used to Minister Dutton letting them down.

Mr Dutton's tenure as home affairs minister will be defined by the things he failed to do. He's failed to protect our borders. The 80,000 people who have been trafficked through our airports and exploited by criminal syndicates since 2014 are a testament to this neglect. Mr Dutton's own assistant minister, the member for Latrobe, said:

Organised crime and illegitimate labour hire companies are using this loophole to bring out illegal workers who are often vulnerable and open to exploitation. This represents an orchestrated scam that enables these criminal elements to exploit foreign workers in Australia until their claims are finalised.

Yet this government does nothing. In fact, they can't even get their story straight. Senator Reynolds told the Senate last week that this really wasn't an issue. She said, 'As the numbers increase, of course we will get an increase on all sorts of categories of people arriving …' She backed that up by saying, 'Between 1 January and 31 May 2019, there was a 20 per cent decrease in the number of protection visa applications lodged across all nationalities. These declining figures are noteworthy. The minister doesn't even know if the numbers are going up or down; she's contradicted herself in one answer to the Senate.

Minister Dutton has clearly failed to explain to his colleagues the severity of the situation or even its existence at all. He's also failed to provide medical care for people in his custody on Manus and Nauru and failed to show a modicum of human decency when the parliament decided to offer them the help he wouldn't. He sustained efforts to stop sick people from seeing doctors, and that will place him on the wrong side of history. He's failed to properly support his own department; Mr Dutton allowed over $300 million worth of cuts to the Home Affairs operating budget. Our ABF patrol boats are supposed to protect our territorial waters but they ended up stuck, relying on fuel rations because Mr Dutton took the razor to the department's funding. We've had boat arrivals come with him in charge.

The first boat to arrive on our shores in years occurred the very week that Mr Dutton challenged then Prime Minister Turnbull for his job—talk about taking your eye off the ball! Just last week we learned of the 40 so-called jihadis who were able to return to Australia unmanaged because Minister Dutton failed for four years to introduce a temporary exclusion order scheme to control the return of foreign fighters. The UK brought in such a scheme in 2015. Which brings us to today, where yet again we're talking about another piece of critical national security legislation that Minister Dutton has done nothing about. Even though Minister Dutton lamented in 2017 that 'Too often governments are forced to act in the midst of a crisis or its immediate aftermath,' he has shown zero capacity to take a proactive approach to national security and modernise these laws before we are in the midst of that exact crisis again.

We need reform now and the opposition is not alone in holding this view. Over the past three years, ASIO itself, three independent national security legislation monitors and the Parliamentary Joint Committee on Intelligence and Security, which has a Liberal-dominated membership, have all said these powers are in need of reform. This call for reform should not be surprising. After all, the questioning and detention warrant power has never been used. It has played no role in keeping Australians safe. Review after review has found that laws like this have no place in a modern liberal democracy like Australia.

In 2016, the honourable Roger Gyles AO QC, appointed by Tony Abbott as the independent national security legislation monitor, concluded that no case could be made for the questioning and detention warrant power and described it as 'odious'. The previous independent national security legislation monitor, Brett Walker SC, and the current monitor, James Renwick QC, also agreed that the laws should be repealed. A unanimous bipartisan report by the Andrew Hastie led Parliamentary Joint Committee on Intelligence and Security recommended that the power be repealed and that the government ensure appropriate amendments made to the questioning power. This was a position supported by ASIO itself when the Parliamentary Joint Committee on Intelligence and Security was told by ASIO that it supported the repeal of the questioning and detention power—again, a power that has never been used. ASIO said it needed significant reforms to the questioning warrant power to provide it with the tools it needs to keep Australia safe. ASIO has requested amendments that would enable the questioning power to be used for purposes beyond intelligence gathering in the specific context of counterterrorism, such as in instances of espionage and foreign interference matters.

We have a great deal of unanimity here. Three independent national security legislation monitors, the bipartisan intelligence and security committee of the parliament, and ASIO itself have all said that we must change these laws. They have requested those changes because they want to keep Australians safe. The PJCIS specifically requested that the powers be fixed by no later than 7 September 2019. Now, with that deadline looming, what has been the response from the home affairs minister to this request? His response has been nothing. He has not done anything to reform these laws to give ASIO the powers they want and need.

This is simply not good enough; in fact, it's incompetent. The coalition are once again seeking an extension of these powers, despite having been in government since 2013. The time line the minister has worked to could only be described as glacial. One thousand days ago the Tony Abbott-appointed independent national security legislation monitor said that change was needed. 800 days ago the Parliamentary Joint Committee on Intelligence and Security commenced their work, with the member for Canning clearly making the case that the powers deserved close scrutiny. 430 days ago the Parliamentary Joint Committee on Intelligence and Security delivered their carefully considered bipartisan report, which concluded that reform was desperately needed. The committee generously provided the government with more than a year to introduce legislation into this parliament to fix this issue.

What the parliament gets today with this bill is an IOU on our national security legislation. Make no mistake: the opposition understands that getting national security legislation right is hard and complex work. But, with some 17,000 employees and more than a thousand days notice, it beggars belief that the Minister for Home Affairs still needs another 365 days to get this legislation right. I note that the minister said in his second reading speech that 'this government is unwavering in its commitment to ensure Australia's counter-terrorism and national security framework continues to be as robust and responsible as possible.' I wonder how many ASIO officials, independent national security legislation monitors or members of the PJCIS would be willing to describe Minister Dutton's efforts as 'robust and responsive' today?

Actions speak louder than words. It is clear that, despite the bluster, Minister Dutton is simply not up to the job of managing our national security. Rather than following the will of the national security community, Minister Dutton has missed another deadline, one that could have serious consequences for the safety of our community. It would be shocking if it hadn't become so commonplace. An inability to complete the core responsibilities of his role has become the defining trait of Mr Dutton's time in the Home Affairs portfolio. As a result of either his own incompetence, his contempt for this parliament and our foundation on democratic principles, or both, the Minister for Home Affairs and his Prime Minister have unconscionably sought to place the parliament of Australia in a very difficult position. The parliament must now choose between rejecting the bill, thereby leaving ASIO without any questioning power at all for however long it takes government to get its act together; or agreeing to the bill and, in so doing, leaving an extraordinary, odious and totally unnecessary power on the books for another year.

Labor will not help the government cover up for Minister Dutton's incompetence; but nor will we allow ASIO and the Australian people to bear the consequences of the government's apathy and laziness. Minister Dutton and the Prime Minister like to frame issues of national security as if they're some sort of test for Labor. The only test for national security legislation—for this legislation—in this place should be the national interest.

This bill today is a report card on the government's ability to keep Australians safe, and there is a huge fail next to the names of Minister Dutton and the Prime Minister. They have failed this test of the national interest. That is why we are proposing to amend the bill to extend the sunset date on the questioning power—a power ASIO has used before and for which there is a continuing need—by three months. This will give Mr Dutton and his department 90 more days on top of the thousand days they have already had to propose a revised questioning framework, which is simply the thing requested of them by our national security agencies so they can do their job. Our amendment will also repeal, to use Roger Giles' phrase, the odious questioning and detention power—a power which has never been used and which no-one can justify why it should remain in Australian law.

Both the Labor Party and the coalition have a long tradition of working together to ensure Australia's national security legislation is fit for purpose and has the right safeguards in place. By effectively rejecting the PJCIS's recommendations with a wave of the hand, this bill constitutes a serious breach of the bipartisan working arrangement between the government and the Labor Party, which has been premised on an understanding that the recommendations of the Parliamentary Joint Committee on Intelligence and Security are to be respected and implemented. This is becoming a worrying trend. We call on the Prime Minister to exercise his authority by making clear to his home affairs minister that he has to lift his game and to recommit his government to working with the parliament to ensure that Australia's national security legislation is working.

Make no mistake: even ASIO does not want the home affairs minister to retain the questioning and detention powers on the books. These powers—the questioning and detention warrant and the questioning warrant—are two incredibly blunt instruments that exist beyond the realms of what we expect in a modern democracy, and they are simply not fit to task to protect Australians against modern and emerging threats. What ASIO actually wants is reform: powers that are shallower but wider, powers which better reflect the nature of our current climate and the unique challenges posed within it. Because of the complete and utter apathy of the home affairs minister, ASIO won't get that today. Frankly, to borrow a phrase, expecting minister Dutton to fix this legislation by 2020 would be the ultimate triumph of hope over experience.

And so this parliament is caught between a rock and a hard place. This bill has some elements that are necessary and some that are not. That's not just our view; it's the same view that's been held by experts. We move amendments to this bill because the home affairs minister is asleep behind the wheel of national security and we cannot rely on him or this government to do the right thing. ASIO cannot wait any longer. Time is up. I cannot imagine the disappointment some must feel within our national security agencies when they see the issues Mr Dutton is choosing to spend his time and effort on. He isn't prioritising the powers that our agencies need and he's certainly not prioritising ordinary Australians and their safety.

I call on the crossbench and those opposite to support this amendment today. The amendment does three things. It takes away an odious power. It forces the government to provide ASIO with the powers that they actually want and need. And it serves as a reminder to Minister Dutton he cannot keep ignoring the fundamental responsibilities of his job. We cannot keep kicking the can along the road out of deference to a minister who has shown no appetite to help our national security agencies keep Australians safe.