David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I rise on behalf of the Greens to speak to the Crimes and Other Legislation Amendment (Omnibus No. 2) Bill 2023. I first note that we are yet to see a credible explanation from the government about why this bill should not have the usual scrutiny—should not at least lay on the table for five days in each house—to allow stakeholders, to allow engaged observers, to have a look at these significant amendments to the Crimes Act, the Australian Crime Commission Act, the Criminal Code, the Customs Act and the Defence Force Discipline Act. These are significant proposed changes that are going to affect three quite significant parts of legal practice.

Perhaps the most significant proposed change is the one that's snuck in at the end: the amendments to the Australian Crime Commission Act 2002. Notice of this bill was given I think two days ago, was introduced in the other place yesterday and is being rammed through while it's literally still warm from the photocopier. What's the rationale for doing that? Well, to be quite frank, there is none—at least, no publicly available rationale is being given by the Attorney. I note that my colleague the Leader of the Greens in the other place, Adam Bandt, sought to get some kind of justification from the Attorney about the unseemly rush of the bills; what is the rationale? The answer from the Attorney was basically, 'Computer says no—we're not going to tell you why we're rushing through legislation without the usual scrutiny.' Of course, that's when warning bells start going off, particularly when you are dealing with things such as validating prior actions of the Australian Crime Commission and actions that have been taken subject to decisions of the Australian Crime Commission.

This bill has three distinct elements to it. As I said, we've been asked to ignore standard legislative due process and rush all three elements through, as an urgent bill. In order to assist our understanding of the need for urgency, we of course sought a briefing from the Attorney-General's Department, and from Attorney-General's office, to explain the need to forgo the usual legislative process and rush this legislation through. We had the briefing—and I mean no disrespect to the officials there; no doubt they were doing the best they could, with clear instructions, no doubt, from the Attorney's office—but no credible explanation was given for the urgency of any of the three elements of this bill.

The aspect of the bill that creates most concern is the proposed retrospective authorisation of covert surveillance and other activities of the Australian Criminal Intelligence Commission. In 2022, just last year, this parliament, after due process, supported significant reforms to the way in which the ACIC authorised certain controlled activities. We're talking about covert surveillance, wire taps—very intrusive activities that the ACIC authorises and that are then often done by the AFP and other offices. These are activities that trespass across most of our accepted traditional liberties: the right not to be snooped on by the government unless there's a valid reason, the right to privacy, the right to due process. Those are all compromised when a decision is made by the ACIC to permit covert surveillance and other activities. Our law has always said that if that is going to be authorised it should be legal. It should be appropriately authorised with a clear legal basis for it, because otherwise we just have illegal snooping by the police and covert agencies—ASIO and the like. And from illegal snooping by security agencies it's a pretty short pathway to trashing the rule of law. If you allow the illegal use of covert surveillance on Australian citizens, that is a pretty clear trashing of the rule of law.

As I said, in 2022 this parliament supported significant reforms to the way in which the ACIC authorised controlled activities. We were told it was to simplify things, to make it simpler going forward. That rationale seemed quite clear. We scrutinised the legislation, we spoke with stakeholders and we supported those provisions, which we were told were designed to clarify and simplify the process and ensure that, going forward, there was clear legal certainty and protection for activities that they purported to authorise. At the time, there was nothing from the Attorney-General's Department and nothing from the Attorney-General himself to suggest that actually things needed to be sorted out because activities up to that date had been illegal. There was nothing at all about that in the debate in 2022. It was all about, 'We're just tidying things up going forward.' There was no mention at all that, perhaps for a decade, the ACIC had been purporting to authorise activities which, as it turns out, were probably illegal. There was nothing at all about that in 2022, so, in good faith, we reviewed the changes to the mechanisms and supported those legislative measures.

Now we're being asked—without any due process, without any proper scrutiny—to support this bill to provide broad retrospective legal protections for activities undertaken by, or in accordance with authorisations given by, the ACIC. It appears, from our reading of the haste and the smoke and mirrors, that the bill is designed to save the Attorney's bacon and to protect past illegal activities by these agencies, because there is no other explanation for the rush. We have been given no other credible explanation as to why these retrospective changes are needed, absolutely no explanation, despite asking what the urgency is.

The only credible urgency is that they know the activities were illegal, and they've probably been illegal for a decade, and a whole bunch of covert warrants and surveillance is likely to have been found to be unlawful and therefore won't stand up in court. If that's the case, why didn't the Attorney just say it? Not only should there be frankness and honesty with us as senators and legislators in this place, there should be honesty with the Australian public. Now we have this disturbing twostep. In 2022 they put through the change, which was allegedly just to simplify and clarify, but now it looks like it was underpinned by a bunch of advice that maybe what they'd been doing up to that point was illegal. Now, a year later, we have legislation being rushed through with unseemly haste to retrospectively validate everything that happened before 2022, and we have no explanation given for it—none at all. The only credible inference you can get from that is they know there's a bunch of quite significant legal challenges in the pipeline, all ready to happen, about unlawful illegal activity by federal agencies over the last decade. There is no other explanation for this.

The Greens believe you should legislate with honesty and directness. The Greens believe the parliament and the government have an obligation to be honest and frank with the Australian public when they are doing things like this, and we're getting none of that from the government—none at all. When we ask direct questions, we get obfuscation and diversion and a 'watch my hand' process. It is not good enough. It is not good enough when you're talking about legislation that so significantly infringes upon our traditional rights and liberties in a society that is meant to be governed by the rule of law.

We won't be supporting this bill, and we don't support the undue haste. We call upon the government to be frank next time and to be honest. We call on the government to tell us their real motivations, and perhaps if they had said to us, 'Well, look, we have real concern here about a bunch of authorisations that were done in good faith and we thought were lawful and had the right checks and balances in them but because of a technical drafting error may have been unlawful, and we're worried that a number of significant organised crime figures may avoid legal sanctions because of this legal technicality, so we just want to fix that,' and they'd laid out their credible argument, absolutely we would have listened. There potentially might have been an explanation for haste, and there might have even been a credible explanation for retrospectivity. But in the absence of any frankness, any explanation, just 'bundle it up and trust us', it is not how legislation is meant to work. We're in the same week that the government has had a significant part of its detention regime for refugees struck down as unconstitutional. Are we meant to take on trust the same lawyers advising the government that it is all fine? It just does not stack up.

The other aspects of this bill, apparently also urgent, are to clarify that the Attorney can make a parole determination even when the strict period for that time for termination has expired, and the determination will be valid. This is needed because there are occasions when the non-parole period is shortened on appeal or by a period that is credit for time given in remand. The government says that the Attorney has been, for as long as anyone can remember, making parole decisions in those circumstances, and, even though the time has expired for the making of those decisions, those decisions have been accepted. There has never been a legal challenge to it, as far as we can see, but they want to regularise it and make it lawful. We can see an argument for regularising it, but for the life of me I can't make out the urgency. You've been doing it for a decade or more, so why is it suddenly urgent in mid-November 2023? It's not; it's pretend urgency. This is something you tack onto the ACIC provisions to try and hide the real rational for why you're rushing stuff through. You're just tacking it on and pretending this is urgent. It's not urgent; there's no creditable argument that it's urgent. It's probably not bad, but it sure as heck isn't urgent.

The other thing we're told is desperately urgent is the changes to the way in which certain drugs are controlled drugs at the border and require a relevant license before they can be imported—and providing for a significant criminal penalty if those precursor chemicals are imported without a license. Again, there may be a credible argument for that. Apparently, this practice has been under review since 2019. There have been substantial concerns raised about it. This may be a relevant way of regulating it; it may be appropriate to put in place a significantly higher criminal penalty for the unlicensed importation of these drugs. We haven't had a chance to talk with stakeholders in this space to know about what impacts it will have on the plastics industry and on other chemical processes in the country. We haven't had a chance to do that because it's still warm off the photocopier!

What's the rational? Why the sudden rush to put in place these new criminal provisions? What's the urgency? There is no urgency. It's mock urgency; it's pretend urgency. It's other thing that's been attached onto this bill to try and disguise the real rationale, which is they're in a red-hot legal mess because of the ACIC's unlawful activities for the last decade. So why not just say it? Why not just say they're in a red-hot legal mess because the ACIC has been unlawfully purporting to authorise certain covert activities for the last decade and it needs an urgent save from the parliament? I don't know why they're not being honest about it. It would be useful to hear the Attorney explain why that hasn't been clearly explained. But I can tell you now that it's not urgent for any credible reason given by the government. None of this is urgent, and we won't be supporting it.