Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I move:

That so much of the standing orders be suspended as would prevent the Leader of the Australian Greens from moving the following motion:

That the Senate calls on the Attorney-General to provide to the parliament before question time today an explanation of his reasons for authorising ASIO raids on Timor-Leste legal counsel and a key witness for pending Permanent Court of Arbitration hearings in The Hague.

Mr Deputy President, as you would be aware, this is not something that the Greens do lightly. In fact, this is one of the very rare occasions in my entire Senate career when we have decided that it is important enough to actually have this matter dealt with and call on the Attorney-General to make a full explanation and statement. The reason it so important is that Minister Brandis is the highest law officer in the land and he has authorised intelligence agencies to raid the offices of legal counsel who are currently in proceedings in The Hague on a matter that is critically important to East Timor.

What is at stake here, as is being said in the media, is that never before has East Timor taken someone to this arbitration panel in The Hague. Never before has Australia been called to answer questions about spying in a forum such as that. But it is not just about a treaty; it is about the maritime boundary between Australia and East Timor, it is about billions of dollars in resources and it is about the resource-sharing deal that former Minister Downer and the government of the time struck and whether it is valid. It is a shocking thing that, as this negotiation is going on in The Hague, the Attorney-General in Australia authorises the raid on those legal offices.

I have seen the minister's statement trying to suggest that the two matters are unrelated, but it beggars belief that they are unrelated—that, 24 hours after the lawyer has virtually left the country to go and work with Timor-Leste in The Hague, we have the chief law officer in the land authorising a raid on that office to take documents from the office and, at the same time, we have a key witness in those proceedings having his passport taken away so that he cannot travel to provide evidence. What does that say in a nation like Australia? Who is next? Who else's passport is going to be suddenly taken from them in a raid so that they cannot go and do whatever they intended to do overseas?

There is no suggestion here that the whistleblower who was going to attend to give evidence in The Hague was in any way a threat to national security. This is about big companies, the power of those big companies over government, and the question of the extent to which the Australian government is acting in the commercial negotiations of a company in a situation such as occurred in East Timor. So that is why I think it is important that Minister Brandis be required to make a statement before question time as to why he authorised those raids and how they can be justified—if they can be, because this is about the commercial proceedings. At no stage was there any suggestion that the original bugging of the cabinet room in East Timor was anything other than to assist in the commercial deals that were being done at the time. It was not about national security, and it is still not about national security.

It is beyond belief that the timing of these raids has nothing to do with the negotiations going on in The Hague. If it can happen on this occasion, what else is Minister Brandis going to authorise for the agencies to go and raid legal chambers or individual homes and take someone's passport? This is important, and that is why I think it is critical that Minister Brandis be required to make that statement to the parliament today. I am sure it is of grave concern to most Australians when they wake up and hear that that has been authorised by Minister Brandis, and I think it is important that we get on the record from Minister Brandis, before question time today, exactly why he authorised the raid on those legal offices and took that passport away.

Mitch Fifield (Victoria, Liberal Party, Assistant Minister for Social Services) Share this | Link to this | Hansard source

The government will not be supporting the motion to suspend standing orders. It is incredibly important that matters of Australia's national security are dealt with very carefully. The government does not believe that it is appropriate to canvass those matters in the manner which Senator Milne is proposing at this point in time in the proceedings of the Senate. Obviously Senator Brandis, who as Attorney-General has portfolio responsibility for these matters, will look carefully at the contributions of colleagues in this procedural debate. But I just want to reiterate that this chamber does need to be mindful of the longstanding conventions and protocols in relation to the commentary on national security matters.

I know that they were protocols and conventions that the previous government took seriously. They are protocols and conventions that this government takes seriously. National security matters have historically been placed beyond partisanship and so, as I have indicated, the government will not be supporting this motion to suspend standing orders. But as I said, the Attorney-General does pay close attention to the contributions of colleagues in this place.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The opposition will not be supporting the suspension motion moved by the Leader of the Australian Greens. I do note, however, the statement from the minister that the Attorney-General will pay close attention to what is said in this chamber in relation to this matter and I would make a number of points.

The first is this: this is obviously a matter which has garnered considerable attention in the Australian community. The Attorney-General did issue a short statement last night in which he confirmed he was responsible for the issuing of warrants which the Australian Security and Intelligence Organisation later executed on addresses in Canberra. In that statement the Attorney-General asserted that the actions he took would not affect or impede the current arbitration between Australia and Timor-Leste at The Hague.

These are important matters. They do go to the integrity of the rule of law, and for that reason the opposition does believe that the Senate—the parliament, and through them the Australian people—would benefit from a statement from the Attorney-General on this matter. However, we are not prepared on this occasion to support an interruption to the orderly proceedings of the Senate in the manner proposed by the Australian Greens. We will always take a responsible and considered approach in matters of national security. But again I reiterate that I encourage the Attorney-General to consider the merits of making an appropriate statement to the parliament.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I rise to make a brief contribution here on the motion to suspend standing orders. As Senator Milne has said, the Greens do not make these sorts of suspensions lightly. It is not conduct that we engage in unless the matter is of the utmost importance.

I acknowledge Senator Fifield's comments. I think it would be appropriate for Senator Brandis to join us for this debate, but, nonetheless, I acknowledge Senator Fifield's comments this morning. But I take him up on one issue, and that is the issue, crucially, that goes to the reason why we brought the suspension motion forward—that is, that it is not at all apparent to the Greens or, I would suspect, to the general public that this matter has anything whatsoever to do with national security.

I understand and respect the reasons why ministers of coalition or Labor Party orientations would not comment on matters that would prejudice ongoing national security investigations. If ASIS had been exposed bugging al-Qaeda headquarters or wire-tapping international organised crime or money-laundering syndicates, this motion would not be necessary. But what is at stake here is an accusation—and apparently a well-founded accusation that will be tested at a court of arbitration in The Hague this week—that ASIS bugged the cabinet rooms of the government of Timor-Leste during sensitive commercial negotiations that have consequences in the billions of dollars for commercial players like Woodside and then, by extension, the Commonwealth of Australia and the government of Timor-Leste through tax revenues and royalties.

That, I would submit, has nothing whatsoever to do with national security. For that reason the Attorney-General should front us today and explain why he has used the most extreme executive powers that are available to him—calling in intelligence agencies with extraordinary coercive powers, serving warrants on people that they are not even permitted to read, and detaining legal counsel and key witnesses for a matter of hours without any explanation at all. You are not then simply able to wave your hand and call 'national security' as the reason a shroud needs to drop. This parliament, the Australian public and the people involved in these arbitration matters overseas deserve an explanation better than they got last night from the Attorney-General as to why our covert agencies have been called in to exercise some of the most severe powers that are available to Australian agencies.

Minister Downer was the foreign minister at the time that these allegations prevailed that ASIS bugged the government of Timor-Leste to, apparently, advance the commercial interests of Woodside, an oil and gas corporation. Minister Downer then goes and sets up his own lobbying company and, lo and behold, ends up on the payroll of that very same corporation. That is the reason that this ASIS operative has decided to take the extraordinary action of appearing as a witness in these arbitration hearings.

As it has been said, this is not some junior operative. For all the mud that has been flung at the US whistleblower Edward Snowden—noting the deliberate use of the term 'traitor' by our Attorney-General earlier this week—this is not a junior subcontractor who has come into possession of documents. This is a key operative who ran technical operations for ASIS at the time that these allegations are said to have occurred. This is somebody not merely with high-level technical knowledge and competence of the operations that were underway; it is somebody with a conscience.

Our people who display a conscience like that and are willing to go on the public record in defence of one of the poorest nations in the region in their negotiations with one of the richest nations on earth should be protected. They should not be subject to arbitrary intimidation and detention by ASIO at the behest of Australia's Attorney-General. Senator Brandis owes it to this parliament, owes it to the Australian people and owes it to the people of Timor-Leste to front this chamber and explain what on earth he is doing. He is already being compared to former FBI boss J Edgar Hoover, and that story did not end well. This appears to be a chilling abuse of executive power. If it is not that then the Attorney-General owes it to us to front this chamber and explain what on earth he is up to.

John Faulkner (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I think every senator in this chamber would acknowledge that it is important for the Australian public and, of course, the parliament to be kept informed of important matters to the extent possible. That is a principle that all ministers accept. But any minister, particularly those who have national security responsibilities, has to consider also what is appropriate to place on the public record. All ministers who have national security responsibilities have accepted the principle that is outlined in Odgers' Australian Senate Practice. I rarely quote Odgers', but let me do so this morning. It is a very accurate representation of the position. It says:

It has been the policy of successive governments that questions seeking information concerning the activities of the ASIO or the Australian Secret Intelligence Service (ASIS) will not be answered.

It goes on to talk about certain precedents and the fact now, of course, that ASIO officers or the director-general do appear before Senate estimates committees and answer questions. So there is a longstanding precedent which every member of parliament understands: ministers have been and should be constrained on what they say publicly about intelligence and security matters.

That does not mean that a minister with national security responsibilities cannot, if he or she believes it is appropriate, seek the leave of the chamber to make a statement. I certainly did that at times when I served as Minister for Defence. I also, in consultation with other parties in the chamber, used the forum of question time to address important matters that were very significant at the time in public debate in this country.

I have never known of a situation where a minister who seeks to make a statement would not be given leave of the Senate. I believe, certainly in this instance, if Senator Brandis chose to do so then that would be the case—and it should be the case. But the issue here is: should the Senate make such a demand of Senator Brandis? I have read Senator Brandis's public statement, headed 'Execution by ASIO of search warrants in Canberra', and he makes the point:

The warrants were issued by me on the grounds that the documents contained intelligence related to security matters.

I do not know what, if anything, Senator Brandis would be able to add to the public statement he has made. What I am concerned about at this stage, in advance of question time, in advance of the forums of the chamber that are available to us, is putting demands on a minister such as those that are suggested in this motion for the suspension of standing orders. That would be a new precedent, which I think would be inappropriate for this Senate to agree to. There is a longstanding mechanism for us dealing with these matters. It is tried and true; it has stood the test of time; it should continue to stand the test of time. (Time expired)

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I take note of what Senator Faulkner has said, particularly about the responsibilities he has had previously as the Minister for Defence. I note also Odgers' Australian Senate Practice and the constraints placed on those who have the heavy responsibility of dealing with intelligence matters.

I think that this motion to suspend standing orders being moved by the Greens is timely in the context of revelations over the last few months, and in recent days, about the potential metadata surveillance of Australian citizens, and also the extent to which surveillance powers should be more transparent and accountable. I do want to take issue with what Senator Ludlam said about Senator Brandis, suggesting that there are some parallels between Senator Brandis and J Edgar Hoover. I am not sure if he was being serious, but I cannot take that as a serious comment. I think that it is unhelpful to the debate. I accept that Senator Brandis, the Attorney-General, takes his responsibilities in relation to matters such as this very, very seriously.

I agree with the comments made by Professor Clinton Fernandes, Associate Professor at the UNSW Canberra, in an opinion piece published this morning where he describes the raids that are the subject of this suspension of standing orders motion:

The raids were designed to seize and confiscate documents believed to contain intelligence on security matters.

I agree with Professor Fernandes that Senator Brandis, as Attorney-General:

… was probably correct to deny that he had authorised the raids in order to impede the arbitration; it is more likely—

says Professor Fernandes—

that the intention was to see whether the names of Australian spies who had conducted the espionage would be revealed. Protective measures could be taken in advance.

I agree with that. We must protect the identity of those who work for our intelligence services overseas because that puts them and their families at risk.

But there are still a number of important matters that are raised in the context of this motion. It simply seeks to suspend standing orders for an explanation. I think the difference with Senator Faulkner's approach is that we should not force the Attorney-General to make a statement at this time. I think simply requesting that the matter be addressed—and it could be that the Attorney will say, 'I will make a further statement down the track'—would itself be useful. But I think that this motion highlights the importance of this debate in the general community about the issues at stake here.

I also want to make it clear that the Attorney-General is perfectly entitled to take whatever protective measures there ought to be to protect the identity of those security or intelligence officers working overseas. That is axiomatic and that is something that I support. But I agree with Senator Ludlam that there ought to be a suspension of standing orders. It would be healthy and transparent to debate these issues. I reject any comparisons between the Attorney-General and J Edgar Hoover, the former Director of the FBI. I think that diminishes the arguments in favour of the suspension of standing orders. I think it is important that these matters be aired and ventilated, but that does not necessarily imply a criticism on my part of what the Attorney-General has done. But I think an explanation is warranted and justified at this time. That is why, with those caveats, I support this suspension of standing orders.

Question negatived.