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

I rise on behalf of the Greens to indicate our very real concerns about this legislation and, indeed, about the overall national security legislation landscape in this country. We know that this bill, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023, came about following the now quite aged review by former secretary Richardson. Former secretary Richardson delivered a report in 2019 that was largely ignored by the coalition, who, I think, implemented a handful of the recommendations put forward by Mr Richardson. Those unimplemented recommendations have now been considered by the Albanese Labor government, which is seeking to implement another handful of recommendations from the Richardson report.

When we're looking at national security legislation, it's useful to look at one of the observations that Mr Richardson made in his report. He said, effectively, that laws that put constraints around national security agencies—organisations like ASIO and others—and laws that put a legal framework around the national intelligence community should not be seen as barriers. They should be seen not as things that agencies try to slip around and avoid but as essential statements of principle that limit their operations and ensure that they perform their functions in accordance with the law.

Just this week we've seen two extraordinary examples from the national intelligence community, which covers parts of Defence, signals, ASIO and elements of the AFP. We've seen two incidents this week which show what a danger the current national intelligence community is to basic principles of a free and open and fair society in this country.

The first was that the AFP have been green-lighting undercover police operatives from the People's Republic of China, permitting and inviting them to come to Australia as recently as 2019—and who knows what they've done since—under the Chinese government's Operation Fox Hunt program, which is effectively a way in which that government hunts down dissidents, people it identifies as economic criminals and others around the globe.

The way you become an economic criminal in most instances in that particular regime is when activities that were accepted in building fortunes and creating corporate wealth whilst those individuals and corporations were in favour with the government suddenly become criminalised when they lose the favour of the government. That's often the way in which economic criminals are identified in the People's Republic of China. If they leave the country and perhaps take some of their wealth with them, they get put on the Operation Fox Hunt list. We know from investigations by organisations associated with the United Nations that over a dozen of those individuals have been hunted down in Australia—often individuals we've given the protection of permanent residency to. They have been hunted down and extracted back to China, and heaven knows what's happened to them in the criminal justice system there.

You would have thought that the AFP would insist upon limiting that and opposing that wherever possible, but instead, under current commissioner Kershaw, they literally invited undercover police operatives to come here to track down a woman who had the protection of permanent residency in this country. This was allegedly under some constraints—some agreement that was struck between the AFP and the Ministry of Public Security in the people's republic. And then, lo and behold, apparently the undercover operatives breached that polite little gentleman's agreement that Commissioner Kershaw entered into with them, and they removed, through whatever level of coercion—and we don't know—that woman back to China, and we don't know what's happened to her.

This was all secret, all undercover and all covered by the secrecy provisions in the national security legislation in this country. No-one said a whisper about it—no-one from the AFP, nobody from DFAT, nobody from the Attorney-General's office. It was all covered under a blanket of security. The only way we found out was that a whistleblower from within the Chinese government's overseas covert operations unit actually told us the truth. We didn't find out from our own agencies. We didn't find out from Commissioner Kershaw or the AFP. We didn't find out from the current or the former Attorney-General. We found out from someone blowing the whistle. And thank goodness we did.

But, of course, if that gentleman had blown the whistle as an Australian officer, we would have seen the Labor Party and the coalition wanting to put him in jail. They would have said: 'Oh, no; a breach of Australia's national security legislation! The national interest is harmed.' Instead of acknowledging him as a brave individual who stood up and spoke truth to power, both the Labor Party and the coalition would be wanting to put him in jail under these very laws.

And why do we know that? Because another event happened this week. David McBride, a former military lawyer who, for his country, served two tours in uniform in Afghanistan has been put in jail by the Labor Party and the coalition. They put him in jail for the crime of telling the truth about war crimes, using this very legislation—with all of its checks, balances, nonsense and secret reviews by secret committees, populated only by the so-called parties of government, which means the war parties and the secrecy parties. They put him in jail because he raised repeated concerns about war crimes, including the murdering of civilians by Australian troops in Afghanistan.

He was concerned about how the senior hierarchy was not being held to account and the key decision-makers were not being held to account. Some of his concerns were that everyone lower in the food chain in the ADF was being hung out to dry while all the big, key decision-makers were being given medals and promotions and being rewarded. Who wouldn't be concerned seeing the current CDF get a medal when he oversaw operations which we now know were deeply compromised by repeated war crimes and the unlawful killing of civilians? No intermediate officers were held to account for the war crimes. Who wouldn't be concerned about the lack of responsibility in the hierarchy?

But, as a Greens senator, I want to be clear: those individuals who committed the war crimes should also be held to account—100 per cent. When none of his concerns were being addressed, when no-one was being held to account inside the ADF and when, as a lawyer, he had this evidence of people being murdered—extrajudicial murders by people wearing Australian uniforms, with some of it captured on video—and no-one was doing anything about it, he then tried to use the PID Act and tried to make disclosures in accordance with law but was completely ignored. Nothing happened.

So, eventually, as you would hope any individual of character would do when they saw evidence of murders and extrajudicial crimes such as those committed by Australian troops in uniform and nobody was taking action, he went to the public and told the media about it. As a result of that, we had the Brereton inquiry, which confirmed dozens and dozens of war crimes likely committed by Australian troops. What does the Labor Party and the coalition do with that? Do they seek to find responsibility in the ADF and hold the Chief of Defence Force to account? Do they even take his medal off him? No—nothing there on the Chief of Defence even though he was in charge of that theatre of operations for a significant part of the time. There was nothing done to the CDF—keep your medal and keep your promotion—and nothing to the other theatre commanders.

Instead, the first prosecution under these very laws, commenced under the former coalition government and backed to the hilt by the now Albanese Labor government, is against David McBride, the whistleblower—not someone who pulled the trigger but someone who blew the whistle. That's who this government targeted, that's who the former government targeted and that's who these laws target—whistleblowers.

This week, after years and years of pressing for a criminal conviction, actively seeking jail time for David McBride, we finally saw the outcome that I'm sure the coalition, elements of the national security organisations in this country and the Albanese Labor government cheered in, because Justice Mossop put him in jail for a minimum 2½ years and a maximum 5½ years. That's 5½ years in jail for telling the truth about war crimes.

We have seen the Albanese Labor government run an attempted character assassination on David McBride and say he's not the perfect whistleblower, that he was concerned that the focus of the investigation was all on the troops at the lower end of the spectrum who were following orders and that no-one higher in the hierarchy was being held to account. They say, for that reason, we should just ignore any kind of public interest. They say we should just ignore it—that he didn't have a public interest. We don't interrogate the motives of whistleblowers; we interrogate the information they give to the public. The information David McBride gave to the public has been essential for the first few—weak and pathetic as they are—steps on accountability for these war crimes. Without David McBride, we wouldn't even know.

When you read the decision of Justice Mossop, who adopted the submissions put to him by the Commonwealth government, there's one word that comes back time after time. There's one word that gets repeated in Justice Mossop's judgement. It's the word that was fed to him by the Albanese Labor government. It was fed to him by the Commonwealth in the prosecution. It's 'deterrence'. David McBride has been put in jail for 5½ years for deterrence. What does that mean? That is a message to every other whistleblower, or potential whistleblower, in this country: 'Don't you dare. Don't you dare tell the truth about what our special forces are doing, what defence is doing, what ASIO is doing or what the AFP is doing. Don't you dare.' That's the message the Albanese Labor government has delivered now through the decision of Justice Mossop, who adopted the position put of deterrence. 'Don't you dare tell the truth'—this is the legislation that supports that. Is it any wonder the Greens don't support the war parties and their moves in this regard?