Rex Patrick (SA, Independent) Share this | Hansard source

I rise to speak briefly in this debate on the Australian Security Intelligence Organisation Amendment Bill 2020. The bill implements the government's response to the report of the Parliamentary Joint Committee on Intelligence and Security into ASIO's questioning and detention powers by amending the ASIO Act 1979 in relation to compulsory questioning powers and tracking devices. I won't go into the detail of the bill. It has been eloquently spelt out by Senator Keneally. I indicate I will, at the committee stage, talk to my amendment. I did listen to Senator Keneally's contribution and I'm not sure whether her amendments have been circulated at this point, but they were certainly circulated in the House—and the Clerk's giving me a nod saying they have been circulated, so I'll talk to those. I do actually support the idea in Labor's amendments that basically brings a judge back into the process of issuing warrants. I think that's a really important thing that ought to take place.

Those of you who were in the chamber yesterday would have heard me talking about a decision handed down by the AAT yesterday. I want to come back to the contribution I made yesterday and talk about how it relates to this particular bill. Back in 2018, the Attorney-General censored an Auditor-General's report into the Hawkei combat vehicle, using a power under section 37 of the Auditor-General's Act to ensure that information that he considered to be sensitive from a national security perspective and sensitive from a commercial perspective was basically redacted in the Auditor-General's final report. The interesting thing about that is that, when that power is used by the Attorney-General, the Auditor-General is not required to answer questions from the Senate. It's one really unusual provision in the statutes which basically curbs the parliament's own powers—obviously, parliament's done that itself—so we never get to see whether or not that power was exercised responsibly. I was concerned about that and I looked for a way to, in some sense, review the decision of the Attorney. It did go to an inquiry—the JCPAA looked at it. But in fact, when the Attorney-General censored the Auditor-General, the act required that a report be provided to the Prime Minister. That report was provided and I sought that report under FOI.

A range of claims were advanced to try to prevent me having access to that particular document, but eventually, after some of the quite complex claims were abandoned by the Department of Prime Minister and Cabinet, represented by the AGS, we finally got to the nub of some exemptions that were claimed by the Prime Minister on national security and commercial sensitivity grounds. Yesterday a decision was handed down that basically stated that the information in this Auditor-General's report was not sensitive: it was not sensitive from a national security perspective and it was not sensitive from a commercial perspective. The significance of that to this bill and to the proposal flagged by Senator Keneally is that we now have a ruling from the AAT that shows the Attorney-General's judgement was actually grossly incompetent—it was incompetent from a legal and parliamentary perspective. I'm referring to the exercise of his powers as a minister, and that has relevance here.

Here we have a bill presented to the parliament that grants the Attorney the power to issue warrants without the supervision of a judicial officer or consultation or connection with a judicial officer. We now know without doubt, from a decision made by a prominent deputy president of the AAT, that the Attorney does not have the capacity to exercise good judgement in these sorts of matters. I could mention Witness K, Bernard Collaery, Richard Boyle and David McBride—all whistleblowers who have been prosecuted under the current Attorney's watch, even though section 71 of the Judiciary Act allows him, in his responsibility to this parliament, to end prosecutions that are not in the national interest, not in the interests of justice.

If indeed Senator Keneally moves those amendments I will certainly be giving them support. They are a good safety measure. Quite frankly, I can't understand why such amendments would not be supported by the government, because they're quite sensible, quite reasonable and serve the right balance between the exercise of powers and the checks necessary when such powers are exercised.