Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I have amendments to move in relation to this bill, so I certainly do not want it to stand as printed. I was of the understanding that the Attorney-General would be here to speak to the bill, because I have some questions indeed for the Attorney-General and he might have some amendments to move as well. So I do not see that there is much point in me commencing until the Attorney-General is here to hear my questions.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Perhaps I could facilitate matters by pre-empting the government in moving their amendments and indicate the Labor opposition's position with respect to those amendments. It might save the committee some time later in the discussion. It has consistently been Labor's position that all national security legislation should be rigorously examined to make sure not only will it be effective in protecting our nation but also that it does not unduly infringe on important rights and freedoms. In keeping with that position, Labor insisted to the government that these three new measures be introduced in a separate bill and subject to public scrutiny and a full Parliamentary Joint Committee on Intelligence and Security inquiry. In its report the intelligence committee recommended the bill be passed and made 15 substantive recommendations. Significant recommendations include amendment to the bill to require the AFP to provide the Attorney-General with a summary of facts when seeking consent to apply to the court for each control order, including any facts why it should not be made; retention of the requirement for the AFP to explain to the issuing court each condition in a draft control order—the bill, as introduced, would only require the AFP to justify the control order as a whole; shortening of periods for notification of the relevant minister where agencies issue emergency authorisations; that the government urgently appoint a new Independent National Security Legislation Monitor and task it with reviewing whether recommendations for safeguards on the control order regime recommended by the 2013 COAG review should be implemented; and finally, it recommended a range of oversight measures.

Labor has asked the government to implement those recommendations and the government has agreed to do so. Labor will accordingly support the bill. The recommendations will improve the accountability and transparency of decision making by national security agencies. The recommendations will also ensure that control order applications are closely and appropriately scrutinised.

In the absence of the Attorney, I might move through government amendments number by number, although that possibly would not have been necessary had the Attorney been here to move them. I notice the Attorney is here, so I will let him proceed with his amendments.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I apologise for not being here when the committee stage began. I just became aware of it. I seek leave to move all government amendments together.

Leave not granted.

by leave—I move government amendments (1) to (6), (8) to (14), (17) and (19) to (30) on sheet ES111 together:

(1) Schedule 1, item 8, page 5 (after line 8), after paragraph 104.2(3)(a), insert:

  (aa) the following:

     (i) a statement of the facts relating to why the order should be made;

     (ii) if the member is aware of any facts relating to why the order should not be made—a statement of those facts; and

(2) Schedule 1, page 5 (after line 22), after item 8, insert:

8A Subsection 104.2(6) of the Criminal Code

  Omit "paragraphs (2)(a) and (b)", substitute "subsection (2)".

(3) Schedule 1, item 9, page 5 (line 34) to page 6 (line 4), omit paragraph 104.3(c).

(4) Schedule 1, item 9, page 6 (line 6), omit "the proposed", substitute "each of the proposed".

(5) Schedule 1, item 9, page 6 (lines 9 and 10), omit "the proposed", substitute "any of those".

(6) Schedule 1, item 12, page 7 (lines 9 and 10), omit "the order", substitute "each of the obligations, prohibitions and restrictions to be imposed on the person by the order".

(8) Schedule 1, item 15, page 8 (line 3), omit "12", substitute "8".

(9) Schedule 1, item 16, page 8 (line 6), omit "104.3(1)(b) to (e)", substitute "104.3(b) to (e)".

(10) Schedule 1, item 17, page 8 (line 9), omit "12", substitute "8".

(11) Schedule 1, item 18, page 8 (line 12), omit "104.3(1)(a) to (e)", substitute "104.3(a) to (e)".

(12) Schedule 1, item 19, page 8 (line 16), omit "12", substitute "8".

(13) Schedule 1, item 20, page 8 (line 18), omit "12", substitute "8".

(14) Schedule 1, item 22, page 8 (line 22), omit "104.3(1)(c) and (d)", substitute "104.2(3)(aa) and 104.3(d)".

(17) Schedule 1, item 28, page 9 (lines 28 and 29), omit "the varied control order", substitute "each of the additional obligations, prohibitions and restrictions to be imposed on the person by the order".

(19) Schedule 2, page 12 (before line 4), before item 1, insert:

1A After section 3

  Insert:

3A References to Ministers

     Despite section 19A of the Acts Interpretation Act 1901, in this Act:

  (a) a reference to the responsible Minister in relation to a relevant agency is a reference only to the most senior responsible Minister in relation to that agency; and

  (b) a reference to the Prime Minister or the Attorney-General is a reference only to the Minister with that title; and

(c) a reference to the Defence Minister is a reference only to the most senior Defence Minister; and

  (d) a reference to the Foreign Affairs Minister is a reference only to the most senior Foreign Affairs Minister; and

(e) a reference to the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 is a reference only to the most senior such Minister.

Note: A reference to a Minister mentioned in this section may include a reference to a person acting as that Minister (see section 19 of the Acts Interpretation Act 1901).

(20) Schedule 2, item 18, page 18 (after line 19), after subsection 9B(4), insert:

Notifying the responsible Minister

  (4A) An agency head who gives an authorisation under this section for an activity or series of activities must notify the relevant responsible Minister of the authorisation within 8 hours after giving the authorisation.

(21) Schedule 2, item 18, page 18 (lines 21 and 22), omit "An agency head who gives an authorisation under this section for an activity or series of activities must", substitute "The agency head must also".

(22) Schedule 2, item 18, page 19 (line 5), omit "being", substitute "the responsible Minister is".

(23) Schedule 2, item 18, page 19 (after line 13), after subsection 9B(8), insert:

Oversight by Inspector -General of Intelligence and Security

  (8A) Within 30 days after the Inspector-General of Intelligence and Security is given the documents, the Inspector-General must:

  (a) consider whether the agency head complied with the requirements of this section in giving the authorisation; and

  (b) provide the responsible Minister with a report on the Inspector-General's views of the extent of the agency head's compliance with the requirements of this section in giving the authorisation; and

(c) provide to the Committee a copy of the conclusions in the report.

(24) Schedule 2, item 18, page 19 (line 14), omit the heading to subsection 9B(9), substitute:

Status of instruments

(25) Schedule 2, item 18, page 19 (line 15), after "authorisation", insert ", report".

(26) Schedule 2, item 18, page 20 (line 11), omit "Advising", substitute "Notifying".

(27) Schedule 2, item 18, page 20 (line 12), omit "advise", substitute "notify".

(28) Schedule 2, item 18, page 20 (line 15), omit "advice", substitute "notification".

(29) Schedule 2, item 18, page 20 (lines 17 to 23), omit subsection 9C(5), substitute:

(5) The notification must be given:

  (a) for a notification given to the ASIO Minister—before the end of 8 hours after the authorisation is given under section 9A or 9B; and

  (b) for a notification given to the Inspector-General of Intelligence and Security—as soon as practicable, but no later than 3 days after the authorisation is given under section 9A or 9B.

Oversight by Inspector -General of Intelligence and Security

(6) Within 30 days after the Inspector-General of Intelligence and Security is given the notification, the Inspector-General must:

  (a) consider whether the agency head complied with the requirements of this section in giving the authorisation under section 9A or 9B; and

  (b) provide the responsible Minister with a report on the Inspector-General's views of the extent of the agency head's compliance with the requirements of this section in giving the authorisation under that section; and

(c) provide to the Committee a copy of the conclusions in the report.

(30) Schedule 2, page 22 (after line 29), at the end of the Schedule, add:

32 Paragraph 29(1)(bb)

  Repeal the paragraph, substitute:

  (bb) to review, by 7 March 2018, the operation, effectiveness and implications of the following:

     (i) Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 and any other provision of that Act as far as it relates to that Division;

     (ii) Division 3A of Part IAA of the Crimes Act 1914 and any other provision of that Act as far as it relates to that Division;

     (iii) Divisions 104 and 105 of the Criminal Code and any other provision of the Criminal Code Act 1995 as far as it relates to those Divisions;

     (iv) sections 119.2 and 119.3 of the Criminal Code and any other provision of the Criminal Code Act 1995 as far as it relates to those sections; and

These amendments give effect to the recommendations of the Parliamentary Joint Committee on Intelligence and Security. The committee recommended that the bill be passed, with amendment, and these are the amendments arising from the committee's report. They include further strengthening the bill to include the safeguards, transparency and oversight mechanisms I explained in my second reading speech. I should add that there are also some recommendations by the PJCIS for amendments to the explanatory memorandum and those amendments will be made when a revised explanatory memorandum is tabled in the House of Representatives. Beyond that, that is all I have to say.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I indicate that the Australian Greens will be supporting the amendments. Indeed, they replicate some amendments that the Australian Greens were intending to move ourselves and we will not necessarily have to do that now. We are pleased that the government has introduced amendments to act many of the 15 recommendations made by the Parliamentary Joint Committee on Intelligence and Security and we consider that these changes constitute the absolute minimum necessary to begin to bring the bill closer to what is acceptable in terms of incursions on human rights and civil liberties. However, it is our view that these remain seriously inadequate to remedy the full range of human rights concerns that have been raised by many organisations and, indeed, by the Parliamentary Joint Committee on Human Rights of this parliament.

There are three of the Parliamentary Joint Committee on Intelligence and Security recommendations that are not reflected in the government's amendments and I would like to take the opportunity to ask the Attorney-General about those and why the government was not minded to take up those recommendations. The first I want to advert to is the PJCIS recommendation 1, which refers to the need to finalise the appointment of an Independent National Security Legislation Monitor 'as a matter of absolute urgency', to quote that recommendation. Attorney-General, given that the government has stated in the media that it accepts this recommendation, when can we expect to see a fully-qualified, well-resourced person in this role, given that there has never been a time when a person in that role has ever been needed as much as they are today.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

There is always a time when an Independent National Security Legislation Monitor is needed. Even more importantly though, it is important that the Independent National Security Legislation Monitor be heeded. Unfortunately, when the Independent National Security Legislation Monitor was eventually appointed by the previous government, none of his reports was responded to in a timely fashion. In fact, when the government changed 14 months ago, we inherited most of the reports of the Independent National Security Legislation Monitor which had not even been responded to by the previous government and they have been responded to by this government. Senator Wright, you or one of your colleagues asked me about this recently, and I said that the Independent National Security Legislation Monitor would be appointed soon. I think I can tell you, Senator Wright, that I have written to the Prime Minister—who ultimately makes the appointment—recommending some names, with one preferred name of someone who, I think, would satisfy you as a man of very, very great eminence and suitability. I expect that that announcement will be made any day now.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Attorney-General. It is interesting that you have often waxed eloquent about the importance of the role and, indeed, you have often claimed credit for being one of the people who moved to have the role introduced after the initial tranche of national security legislation was introduced during the Howard government. But, with respect, you cannot have it all ways. We have to actually look at not the talk but the walk. We have had this office vacant for seven months. Prior to that, you acknowledge that, in fact, your government was going to abolish the position. Given the importance that you put on the role, you will be very pleased to hear that I will be introducing a private senator's bill to require that the role be filled with alacrity in the future and that, indeed, the reports of the Independent National Security Legislation Monitor be responded to by governments within a timely period. I agree with you that it has been somewhat scandalous that report after report has not been heeded, as you say. With respect, I would suggest that it is now an opportunity for your government to take those previous reports seriously and to heed them now. Certainly, one of the major concerns that was consistently raised by the Independent National Security Legislation Monitor was with the control order regime—and we will come back to that in some questions that I have for you later. As much as it is nice to hear that soon we may have someone within that office, what kind of heed has the government paid to the previous discussion of the control order regime by the INSLM? And how can you point to that being reflected in the legislation that we are considering today?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The legislation speaks for itself. The government has reviewed the whole range of Australia's counter-terrorism laws. We do not necessarily share the views of the previous INSLM. The INSLM is a person who contributes in a well-informed and intelligent way to the thinking of the government of the day and, indeed, to the thinking of the parliament. That does not mean that the INSLM is like a final authority on the policy merits of any particular proposal. The policy merits of the particular proposal is ultimately a matter for the government of the day, subject to the will of the parliament. The government respectfully disagreed with some of the views about the control order regime of the former Independent National Security Legislation Monitor, and our views were closer to the views expressed by the COAG review of these laws. The fact that you had one respected person of one mind and another respected person of another mind, neither of them political partisans, should tell you that there is a variety of views about this. But the view of the parliament, or at least the view of the overwhelming sentiment of the parliament as reflected in the unanimous report of the Parliamentary Joint Committee on Intelligence and Security, should tell you that both sides of politics—not, of course, you 'Green' people—are of the view that there is a role for control orders. That reflects the overwhelming sentiment of the elected representatives sitting in parliament. It reflects, no doubt, the overwhelming sentiment of the Australian people who want to see this government pass laws that are suitable and appropriate to deal with the issue of terrorism.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Thank you, you 'Green' Chair, Senator Whish-Wilson! No, Chair, I should be more respectful. I will take this opportunity to address in some detail the various amendments by the government. I think it might help Senator Wright, particularly on her first question where she was asking for advice from the Attorney in relation to the position on control orders. Perhaps I will address Labor's position, as reflected in these amendments, issue by issue. If the committee will bear with me, I will probably be dealing with some matters that are in what I expect will be in the second tranche of amendments that we will deal with with the next question—that certain items of schedule 1 stand as printed. But they go across issues, if the committee can bear with that.

Government amendments (1), (3) and (14) relate to requesting interim control orders. These, as with, I think, all of the amendments, are the implementation of recommendations of the intelligence committee. Labor accepts that the purpose of this bill is to improve the operation of the control order regime. We support the bill's intention to reduce unnecessary duplication of decision making by the Attorney-General and then the issuing court. However, the Attorney-General's consent is required for an application for a control order for a reason. The Attorney-General's involvement is necessary to provide an appropriate level of oversight and accountability at the highest level of executive government for the exercise of what is an extraordinary power. The intelligence committee's recommendation that the AFP provide the Attorney-General with a statement of reasons related to why a control order should be made and, also, any facts of why the order should not be made is, therefore, a very sensible suggestion. These amendments strike the right balance between the operational effectiveness and appropriate oversight. For this reason, we are supporting them.

I will move now down to amendments (4) and (7) and (15) to (18) regarding details of limitations. Again, these follow the recommendations of the intelligence committee. The committee recommended retention of the requirement under the current law for the AFP to explain to an issuing court each condition in a draft control order The bill as introduced would only require the AFP to justify the control order as a whole. Again, while Labor accept that the purpose of this bill is to improve the operation of the control order regime, we would not support removal of proper testing by an issuing court of the appropriateness and necessity of proposed control orders. Control orders allow for the imposition on a person of conditions, obligations and prohibitions which deprive that person of their usual rights. It is appropriate, therefore, that each and every one of those stipulations is assessed to see whether it is necessary to Australia's national security. Labor believe that extraordinary measures like control orders must always be rigorously justified, and we support these amendments which make sure that this will be the case.

Regarding amendments (8), (10), (12) and (13) around obtaining the Attorney-General's consent, this was another recommendation of the intelligence committee. The government's bill as introduced extended the time which the AFP would have to obtain the Attorney-General's consent to an urgent interim control order from four to 12 hours. As the intelligence committee noted, it is difficult to imagine circumstances where the Attorney-General would be unable to be contacted for a period of 12 hours and that eight hours should be sufficient for any reasonable contingency. Labor agrees, and we will support the government's amendments to implement this recommendation.

We understand amendment (9) to be a technical correction. Amendment (19), regarding references to ministers, implements a recommendation from the intelligence committee. It clarifies a drafting issue the committee raised and it ensures that references to ministers in the Intelligence Services Act are taken to refer only to the most senior responsible ministers. Again, this amendment is consistent with Labor's focus on oversight and accountability. The powers granted in the act should be exercised by senior ministers with the requisite experience and departmental support. The powers granted in the act should be subject to the oversight of the most senior levels of government.

Regarding amendments (20) to (29), this is a further intelligence committee recommendation. The amendments provide that where an agency head gives an authorisation when a minister is unavailable, the minister must be notified within eight hours. Although the bill as introduced imposed an obligation for agency heads to notify ministers as soon as practicable, the bill provides for this time period to not exceed 48 hours at the outside. There can be no justification for such a long delay. Labor supports these amendments, which will ensure that ministers are promptly notified when decisions are taken by agency heads in their absence. This will ensure the oversight and accountability that Labor insists on when powers are exercised under the Intelligence Services Act.

Finally, regarding amendment (30) and the inquiry, this amendment implements the previous intelligence committee's recommendation that new provisions of national security legislation be reviewed by the intelligence committee ahead of sunset periods, now set two years after the next federal election. Labor supports this amendment. There should be proper, sober consideration of new national security measures, and we welcome the guarantee provided by a statutory and timely review.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Coming back to the response of the Attorney-General to my question regarding the INSLM, I would observe that you are quite right, Attorney-General: we 'Green people' did not have an opportunity to be part of the Liberal-Labor club on the Parliamentary Joint Committee on Intelligence and Security because, as everybody knows, it is a committee for which sole membership is available to the two old parties and none of the crossbenchers have an opportunity to be part of that—to examine the proposed legislation, to ask questions and to hear from the witnesses in person.

Coming back to the point that you made, Attorney-General, in relation to the Independent National Security Legislation Monitor's previous recommendations and reports, you were the person who used the word 'heed' in terms of how important it is to have a person in that role and how you will be moving to have someone in that role, but again you are trying to have things all ways. You are saying that it is important to have someone to heed their reports. I have just checked, because my initial reaction was that the word 'heed' is not a neutral term. It is not a term that means just 'take note of'. It has connotations of being guided by, taken to heart, to follow, attend to, listen to, pay due regard to. I do not know what your attitude will be to the new Independent National Security Legislation Monitor that you are proposing to appoint, but it would seem to me logical and reasonable that if someone is appointed to that position—a position that is acknowledged to be an extremely important position, a position which the Parliamentary Joint Committee on Intelligence and Security indicated should be filled with absolute urgency—it would be sensible to heed their advice. In fact, it is interesting that you suggested that, because Liberal and Labor members of parliament on the Parliamentary Joint Committee on Intelligence and Security were able to come to a consensus on the recommendations for changes to this legislation, that that would somehow reflect the overwhelming view of the Australian public. I do not think you can logically conclude that, and certainly I think it is pretty clear from the submissions in relation to this bill that the bill, as it stands—even with the amendments that are being moved by the government today—will not reflect the overwhelming views of those organisations in Australia who are in a position to understand the implications on civil liberties and human rights in Australia by dint of their longstanding work and understanding of these issues and also their experience in seeing how these sorts of issues play out overseas.

I could come back to the fact that, much as you extol the virtues of the Parliamentary Joint Committee on Intelligence and Security, the government has not seen fit to pick up all the recommendations of that committee. If I could take you to recommendation 2, which refers to ensuring clarity around the terms 'supports and 'facilitates' in the provisions in the bill that extend the control order regime, certainly this is a term whose potential and vagueness has concern among people who have made submissions on the bill. Recommendation 2 was seeking to ensure clarity around the term 'supports and facilitates'. I note that the government has apparently accepted that recommendation, so, Attorney, can you please explain how these terms have been redefined in the redrafted explanatory memorandum?

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Minister?

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Can I clarify that I am not going to get a response to that, Attorney-General?

The TEMPORARY CHAIRMAN: The minister does not want the call, Senator Wright. Senator Wright.

Then I ask the next question. I am interested because this is a very vague, broad term that has been—

The TEMPORARY CHAIRMAN: Senator Wright?

I am not going to get a response to that question, I imagine, but I do have a follow-up question. I put this to everyone really, and particularly the Attorney-General. I am not playing a game here; I am seriously interested in having clarity from the government which is proposing this legislation, to help answer, reassure people about or clarify the concerns that have been legitimately raised by organisations in Australia who are concerned about the implications of this legislation. The question is: can you, as Attorney-General, give us and give the Australian public—anyone who might be listening, or reading the Hansard transcript—an example of what this term 'supports and facilitates' will mean in context?

The TEMPORARY CHAIRMAN: Senator Brandis, I am going to get Senator Wright to repeat the very last question she asked so that you can listen to it, because you were in conversation with the Clerk.

Given that the government has accepted PJCIS recommendation No. 2, referring to ensuring the clarity around the term 'supports and facilitates' in the provisions in the bill that extend the control order regime, I am asking, Attorney, if you can give us an example of what that will mean in context.

The TEMPORARY CHAIRMAN: Senator Wright, I do not have the right to call you again because you have just spoken twice.

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

I am not sure what kind of procedural games the Attorney-General is playing here. Senator Wright asked a series of reasonable questions about the operation of the bill and the context in which it has been drafted, and I draw the Attorney-General's attention to the reasonable questions that have been put to him. This is the stage of the bill debate where senators are able to establish how the bill is going to work in practice. Chair, I ask you to draw the minister's attention to the questions that are being put to him.

The TEMPORARY CHAIRMAN: I think the minister is aware of the questions that are being put to him. Senator Wright, do you want the call?

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Yes. I am going to ask a further question. With respect, I think this is an outrageous abuse of process. Some of my questions later will go to the fact that we have a Parliamentary Joint Committee on Human Rights, established in this parliament, which has sought clarification on some of the same questions that I am asking. Some of that information that was sought was in relation to the previous national security law, which has now passed—the foreign fighters bill—and that committee is still waiting for clarification and answers, for justification on the basis of necessity, reasonableness and proportionality, which are an acknowledged human rights frame of reference in matters such as this. The committee is still waiting for responses from the Attorney-General in relation to that significant law affecting the rights of people living in Australia in 2014.

This is, in my understanding, an opportunity to clarify the way this legislation will play out if it is passed. I am not abusing the process. I am asking reasonable questions, many of which have been asked by other organisations, and I can only assume that the Attorney-General does not have answers for these questions, or presumably he would be putting those answers on the record. So I am going to go now to Parliamentary Joint Committee on Intelligence and Security recommendation No. 7, another of the recommendations which—although I understand the government has accepted them—have not been put into the form of an amendment to this bill. This concerns schedule 2 of the bill. This is from the Parliamentary Joint Committee on Intelligence and Security. This is the coalition and Labor committee. The recommendation relates to the need for clarity around what constitutes a class of Australian persons for the purposes of the expanded powers given to ASIS to conduct activities in respect of Australians overseas. My question is: given that this recommendation is accepted, how is 'class of persons' defined in the redrafted explanatory memorandum?

The TEMPORARY CHAIRMAN: Before I put the question—

I have some questions to ask. I will ask them. They will remain on the record. The Attorney-General's silence will speak for itself. I know there are many people in Australia who will be watching this with great interest. So my next question is: Attorney-General, can you give us an example of what the phrase 'class of persons' for the purposes of expanded powers given to ASIS to conduct activities in respect of Australians overseas means in context?

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

Mr Temporary Chairman, I seek a ruling from you. We have all participated in these debates before and I have never seen a minister behave like this one. I would like a ruling from you, Chair. If a minister refuses to answer a legitimate question put by a senator from any part of this chamber, the senator is entitled to put a different question. We cannot compel the minister to put information into the public domain—it is his choice—but it is the case I believe—and I am seeking your ruling, Chair—that senators are entitled to put other questions to the minister and he can choose to answer them or not.

The TEMPORARY CHAIRMAN: Senator Wright, if you or Senator Ludlam have a number of questions, you will have 15 minutes to speak. You should outline those questions in the time allocated to you rather than perhaps asking them one by one. You will not be allowed to speak twice in a row. Senator Wright, after you ask one question, Senator Ludlam can ask another question but you will not be allowed to ask two questions in a row.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Mr Temporary Chairman, I have a point of order. I seek the standing orders you are referring to on those two aspects of that ruling: the first is not being able to ask two questions in a row and the second is why the time limit of 15 minutes. Where does that come from?

The TEMPORARY CHAIRMAN: My understanding is it is standing order 189(3) in relation to two questions in a row. In relation to the time allocated, 15 minutes is standard. It was my advice to you to put a number of your questions in that 15 minutes if you want to get them all on the record because under standing order 189(3) you will not be able to ask two questions in a row.

Mr Temporary Chairman, I am seeking clarification again. So the 15 minutes only pertains if I try to speak twice in a row?

The TEMPORARY CHAIRMAN: Senator Wright, you have a full 15 minutes and you would be allowed to speak for another 15 minutes but after that you would have to have another senator ask a question in between. Is that clear?

Yes, thank you, Chair. That is clear. That was the clarification that I was seeking.

The TEMPORARY CHAIRMAN: Senator Wright.

I want to following on the same theme in relation to the class of persons I was asking about—and I did not receive an answer so we are none the wiser as to the government's understanding of how that would be applied in context, what it means, how it is defined and then how it might actually be applied in practice. I take the Attorney to the Parliamentary Joint Committee on Human Rights' report. It is the 16th report of this parliament. It was tabled today. There were issues raised about the expansion of the ASIS powers in relation to class of persons in that report. Paragraph 1.73 of that report states the expansion of powers will:

… enable the Minister for Foreign Affairs to give an authorisation to ASIS to undertake activities for a purpose which includes producing intelligence on a … class of Australian persons or to undertake activities that will … effect … a … class of Australian persons.

This is a significant shift away from where it would be in relation to an identified individual person. This is where ASIS is providing support for the Australian Defence Force.

So my first question—and these are questions that are raised by the Parliamentary Joint Committee on Human Rights—is: why is this necessary? The statement of compatibility that accompanied the legislation we are considering today, which is a requirement from the legislation that established the Parliamentary Joint Committee on Human Rights, provided by the Attorney-General's Department does not actually identify this particular expansion of powers as engaging human rights and certainly does not explain why it is necessary. The frame through which human rights issues are considered is whether they are necessary. When human rights are engaged they may be limited on the basis that it is established that it is reasonable to do it, necessary for a legitimate objective and proportionate to achieving that objective. We have a situation where we have ASIS being able to provide support to the Australian defence forces, to obtain intelligence or to undertake activities which may affect a class of Australians in a foreign country—and the statement of compatibility did not acknowledge that that was engaging human rights, and has not explained why it is necessary. My question to the Attorney-General is: it may well be necessary, but there is not information on the public record as to why this significant step is necessary—so why is it necessary to have that expansion of powers?

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

I have some questions as well, but I just want to note, for those who might be observing this debate from outside the building, that this is the most extraordinary abuse of Senate procedure that I have seen since I have been in here. This is the stage of the bill where senators from the government side or the crossbenchers or the opposition get to put reasonable questions to the minister about the operation of the bill in practice. This is not a trivial bill that we are debating. This is the third in a series of national security bills that the government has brought forward with very little explanation that has provoked, I would say, very strong consternation and opposition in people who follow human rights closely—people who care about the operation of the law in this country and the way in which our civil liberties are protected. And the Attorney-General—the first law officer of the country—is treating this chamber with profound contempt. There is nothing unreasonable, Senator Brandis, in anything that Senator Wright has put to you this afternoon. They are reasonable questions that have been asked not just by the Greens but by people who made submissions to the parliamentary joint committee—people who have been observing the way that this bill has run through parliamentary process. They are entirely reasonable questions, and I would seek at the outset an explanation from the minister—maybe just to short-circuit this debate and save us all a bit of time. Does the minister intend to answer any questions put to him from any MPs on the operation of this bill? I see he is maybe even going to dignify us with an answer, so let us start with that: does the minister intend to grace us with any answers to any questions at all this afternoon?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I intend to answer all the questions, but I do not intend to allow the Greens, through the misuse of standing order 189(3), to filibuster this debate the way you, Senator Ludlam, tried to filibuster the debate on the first of these pieces of national security legislation. So, rather than refresh your opportunity to continue to prolong the debate by responding to each question sequentially, I will, as the chair has suggested on the advice of the Clerk, respond to all the questions asked of me in one go, and that way we will get through this a lot faster.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

It is interesting. I have observed in life how people suspect other people of doing things that they are capable of themselves. Earlier on I was actually asked by a member of the opposition how long I thought this debate would go on for; they had a particular interest in other legislation not coming on. I said to them: I have absolutely no intention of filibustering. I have a series of legitimate and reasonable questions to ask, and once I have asked those I will sit down. I have absolutely no intention of filibustering. I am interested in asking these questions, and I feel in some ways that I am performing the role of asking questions that the committee of which I am a proud member, the Parliamentary Joint Committee on Human Rights, has asked the Attorney, and is in the process of asking the Attorney, in terms of not being able to finalise their consideration of this legislation because those questions are still unanswered. As I said, questions pertaining to the previous national security legislation—which has now been passed, is on the books and will be affecting the lives of everyday Australians from now on—still remain unanswered. But this is an opportunity for me to at least ask those same questions in this chamber and to try and get some clarity for the people in Australia who actually care about these issues. So I am not filibustering, and I take exception to that suggestion. I think it will be very interesting, Attorney-General. I am quite pleased to think that you will be answering these questions—and I hope you are writing them down, because there are quite a few here and I hope that we will be able to see that we have responses to the various questions that I have asked.

As a result of you refusing to answer them as we go, if I am not clear on what you are saying or I need some further explanation, then obviously that puts me at a disadvantage because that will not necessarily be possible. When you have given your answer, maybe I will be able to come back and ask some more questions about those.

For people who may be listening to this debate and who may think: 'Maybe she is filibustering,' I will go to the Parliamentary Joint Committee on Human Rights report and go to the paragraph which I think really encapsulates why this particular issue of having powers expanded to allow ASIS in overseas countries to support the Australian defence forces in relation to a class of persons—not individual identified persons about whom there may be serious concerns because of their behaviour or their likely behaviour, but indeed a class of persons—is an issue. I will go to the Parliamentary Joint Committee on Human Rights report to explain why that might be an issue. I am referring to paragraph 1.75 of that report:

As a result of these proposed amendments, ASIS would be able to collect intelligence on an Australian person, including using surveillance techniques on that person, simply because that person belongs to a specified class. The committee is concerned that in the absence of detailed legislative criteria for the determination of a class of persons, a class of persons may include, for example, all Australian persons:

That sounds horribly reminiscent to me of the way, throughout history, classes of people have been categorised according to things like their religious beliefs, political or ideological beliefs, or ethnic backgrounds. We are making laws today that will have an effect into the future. We do not know who will be making these decisions in the future. We are putting these laws on the books. These are unprecedented laws, and I am asking questions to clarify why it is necessary to go this far and how this may potentially affect people who are living today and in the future—until these laws, if passed, are revoked. Section 1.76 of the Parliamentary Joint Committee on Human Rights report says:

While the committee acknowledges that there are a number of safeguards in the ISA, the committee considers that a class authorisation power has the potential to apply intrusive interrogation powers to a group, which do not apply to the broader community and as such could be indirectly discriminatory because, although neutral on its face, it disproportionately affects people with a particular personal attribute such as religious or political belief, or ethnic background.

It is on that basis that the committee has sought the advice of the Attorney-General:

… as to whether the amendments in Schedule 2 are compatible with the right to equality and non-discrimination, and in particular whether the limits imposed on human rights by the amendments are in pursuit of a legitimate objective, and are proportionate to achieving that objective.

That is why I am asking this question and that is the question I am asking the Attorney-General now.

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

What the Attorney-General is doing in deciding to behave like a child in the course of this debate is preventing us from having the kind of dialogue you normally get in the committee stage of the bill. Some of these questions, I suspect—those of Senator Wright or myself or others—could be resolved on the spot and we could just move on. The problem with Senator Brandis just sitting there mute, instead of providing us with answers, is that we do not know for which of the issues we are chasing the government has a measured and considered response, and for which it does not. I would like to record the profound contempt with which this chamber is being treated. This is not the way in which committee debates are meant to proceed. I suspect, also, that as a result this debate is going to take a lot longer than if we were getting sensible answers to questions as they were being put. I have never come across a minister who treated the rest of us with this kind of contempt.

The questions I am interested in are those that relate to collaboration between ASIS and the ADF. I know Senator Wright has concentrated largely on the control order regime and other elements in the Attorney-General's portfolio, but one of the things Senator Wright indicated in her second reading contribution is the possibility that increased cooperation between ASIS and the ADF may in fact lead to the targeted killings of Australian citizens fighting in Iraq and Syria. It may be that is not remotely the government's intention. Even calling it an allegation is pretty strong, because we simply do not know if that is what the Australian government intends to enable with this bill. Our intelligence services are prevented from this by law at the moment—as section 6.4 of the Intelligence Services Act states quite explicitly:

In performing its functions, ASIS must not plan for, or undertake, activities that involve:

(a) paramilitary activities; or

(b) violence against the person; or

(c) the use of weapons.

If it is the case that this amendment is a backdoor allowing ASIS to directly contravene section 6(4) of the Intelligence Services Act, or to be complicit in the targeted killing of Australian citizens who have not been charged or convicted of any criminal offence, that takes us into uncharted territory.

Senator Brandis, you may thoroughly repudiate that. I am not even putting it to you as an allegation; it is genuinely a question. I am interested to know: is it the intention, in allowing this closer collaboration between ASIS and the ADF—which is sensible on its face—to allow either ASIS or the ADF to specifically seek out Australian nationals fighting in overseas theatres of war and target them for killing or capture? Is that the Australian government's intention? If it is not, Senator Brandis, and you are able to set our minds at rest, I will not continue with the rest of this line of questioning. If you are intending on sitting there for the rest of the afternoon and not providing us with answers, then I am going to continue this line of questioning. You could choose to set this to rest if it is simply not Australian government policy to proceed that way.

I will put the question directly; I think you know where this is heading. Is it the intention of these amendments to allow the targeting of Australian nationals fighting in overseas theatres of war or is that not the case?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Wright, if you want to ask your questions, go ahead and ask them and I will respond to them. That is the most efficient way to conduct this debate. But do not deny that you are filibustering and then spend the next five minutes avoiding putting questions.

Senator Ludlam, you should know that the proposition you put is preposterous. Section 6(4) of the Intelligence Services Act contains an absolute prohibition against those agencies engaging in acts of violence. There is no way at all that these amendments can limit or confine or otherwise qualify the operation of the absolute terms of section 6(4), which is not the subject of amendment at all. I explained that, by the way, Senator, in winding up the second reading debate, but you were not in the chamber. So the issue has already been addressed in this debate; but since you raise it again, the answer to your question, 'Is it the Australian government's intention to use this legislation to target people?' is that it is a preposterous suggestion which I dismiss with complete contempt. Section 6(4) of the Intelligence Services Act, which is absolute in its terms, is absolutely unaffected by this legislation.

In relation to the further progress of this debate: Senator Wright, if you are the principal spokesman for the Greens, I am making a note of each of your questions as we progress through. I suggest that rather than comment on your questions you just put the questions and sit down and I will then answer the questions.

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

Senator Brandis, you have said that we should put the questions and you will answer them, so I would like to follow up on the question that Senator Wright asked with regard to what constitutes a class of Australian persons for the purpose of the expanded powers, given that ASIS can conduct activities in respect of Australians overseas. I note the Parliamentary Joint Committee on Human Rights report, on page 19, points out that, as a result of these proposed amendments, ASIS would be able to collect intelligence on an Australian person, using surveillance techniques on that person simply because that person belongs to a specified class. The committee is concerned that, in the absence of detailed legislative criteria for the determination of a class of persons, that class of persons may include all Australian persons adhering to certain religious beliefs, adhering to certain political or ideological beliefs or who have certain ethnic backgrounds. It goes on to say that the committee considers that a class authorisation power has the potential to apply intrusive interrogation powers to a group which do not apply to the broader community and, as such, could be indirectly discriminatory because—although neutral on its face—it disproportionately affects people with a particular personal attribute such as religious or political belief or ethnic background. So it is not unreasonable to ask you to point out, as Senator Wright has done, how 'class of persons' is defined in the redrafted explanatory memorandum. What does it mean in context? What do you mean by a 'class of persons' that will now be subjected, if this legislation were to pass, to these surveillance powers being unleashed upon them?

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

There is one issue that Senator Wright raised earlier that I would like to go back to for a moment, because she was asking questions in relation to revisions to the explanatory memorandum, which arises also from some of the recommendations of the intelligence committee. For the committee's benefit, I should indicate that my understanding is that a revised explanatory memorandum or supplementary additions to the explanatory memorandum will be dealt with when this bill is dealt with in the House. It concerns me that questions relating to such matters be dealt with in the Senate consideration. I can understand the Greens' frustration that—at least in the earlier stages—some of their questions did not appear to be progressed in the committee consideration. I take Senator Brandis's point now that he is dealing with some questions as they are being presented and I would encourage him to consider to do so, because, whilst the Parliamentary Joint Committee on Intelligence and Security has considered some of these things in detail and satisfied the Labor Party's concern, we do not think that that is a substitute for the role of the Senate committee stage consideration of a bill. We would encourage that consideration to continue in a substantive manner.

I earlier provided the Labor Party's position on all of the government amendments and what we understood them to be doing and why we were supporting them. Any other substantive matters that need to be raised should be addressed at this stage.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Senator Collins. As I indicated at the outset of this, the questions that I was asking at this stage were actually about the recommendations of the Parliamentary Joint Committee on Intelligence and Security which have not been reflected in the government's amendments. That is why I am asking the questions—to get more clarification. They were issues that were fairly and squarely raised by that committee, and that is why I have been asking the questions. It is not helpful to not have the answers as we go. It might be, as Senator Ludlam indicated, that we have dealt with those, that I have the best answer that I can have, that I am as clear as possible on it and that we can move on. Hopefully, a lot of information will come from the Attorney-General later, and then there may be further questions that need to come out of that. So I think it is not a very efficient way to do this.

I am going to go to a question. The government amendments include changes to the Intelligence Services Act, relating to what matters the Parliamentary Joint Committee on Intelligence and Security must review. The date set for this review is 7 March 2018. This was the date set by the Foreign Fighters Bill, which, among many of its significant changes, pushed out the date set for the Parliamentary Joint Committee on Intelligence and Security to review ASIO's questioning and attention powers from January 2016 to March 2018. My first question is: on what basis was 7 March 2018 set as the date for review of these very serious provisions relating to the Intelligence Services Act and the matters that the PJCIS must review? What was the basis of that date being set?

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Just briefly in response to Senator Wright, I should indicate that the Labor Party is completely satisfied that the full recommendations of the intelligence committee have been addressed by the government. Some of those matters are dealt with by amendment; some of them are dealt with by what will be a revised explanatory memorandum; and some of them are dealt with by other means. But I should not let the committee have the view, at least from our point of view, that all of those recommendations have been satisfactorily met.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I am genuinely interested in seeing where these clarifications are reflected, and that is why my questions included: 'Where in the explanatory memorandum?' If the Attorney-General or, indeed, you, Senator Collins, or anyone, could point us to where these recommendations are reflected such that there is clarity about the issues raised legitimately by the PJCIS, then that may answer the question. I do not know if you are in a position to do that.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Senator Wright, I think my earlier comments made the point, which is that I would encourage the Attorney-General to do so.

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

I thank the Attorney-General for actually providing an answer. As I suspected, it does allow us to move the committee stage debate forward on the areas that I am interested in. I should acknowledge, in response to the Attorney-General's helpful advice about who he wants to take questions from and who he thinks should be running the debate, that I am here in my capacity as a shadow spokesperson for defence. The area of questioning that I want to put to the Attorney-General mainly revolves around the operation or interoperation of ASIS and the ADF. This may be a question that goes outside the Attorney-General's portfolio so if you want to take this on notice I will understand.

I thank the minister for clarifying that nothing in this act impinges on section 6(4) of the Intelligence Services Act, so it is not that ASIS's role has profoundly changed and this is about intelligence-sharing between ASIS and the ADF. The question really goes to back to a statement that was reported in the Sydney Morning Herald in a piece by Heath Aston on 12 November 2014—not that long ago:

Chief of Joint Operations Vice Admiral David Johnston said Defence is prepared to deliver strikes against Australian citizens fighting for Islamic State, also known as ISIL, provided they are a legitimate target.

The piece noted:

An estimated 71 Australians have fought in Iraq and Syria.

It said that roughly 15 were known to have been killed. I am interested, I guess, Attorney, to know whether it is a change in defence posture that the Australian Defence Force is seeking out and targeting Australian citizens who are fighting Islamic State—or, I guess, on any side of that conflict.

You have, I think, confirmed for us that this will continue not to be ASIS's role, which is something of a relief. Nonetheless, my reading of the way that this bill has been drafted is that it will effectively streamline intelligence-sharing between ASIS and the ADF. If it is an ADF policy to seek out and target Australian nationals fighting for Islamic State then I think that is an area of concern.

Recognising that you would be outside your portfolio in terms of the positioning of the ADF in these matters, I wonder nonetheless whether you can enlighten us as to whether it is the policy of Australian Defence personnel fighting in Iraq—or potentially in Syria if we end up there—to seek out and target Australian citizens. Is that the purpose behind allowing ASIS these more streamlined intelligence-sharing powers with the ADF?

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I was going to seek clarification from the Attorney-General. In the interests of genuinely debating and discussing this legislation, I would like clarification about when the Attorney-General is proposing to answer this bulk lot of questions. Is he going to answer them at the end of the debate, in the last speech, so that there is no opportunity for any further discussion or clarification of the answers and when there is no opportunity to point out that he may have missed one of the questions that I asked because he has taken so many at once? I put that question to the Attorney-General.

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

I am not sure whether this is the point of order. With great respect I request from the Attorney-General an answer for that last question, which I think is reasonable. At what stage in this debate does he propose to answer the dozen or more questions that have been put to him already?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I will respond to Senator Ludlam. As I said, my only interest here is to make this debate proceed in an appropriate and prompt manner and not allow it to be filibustered by the very cynical exploitation of the provisions of standing order 189(3) which we saw from you, Senator Ludlam, during the last debate.

I regard you as an honest person, Senator Wright. If you tell me that you are not filibustering I will accept that. I would not accept it from Senator Ludlam but I will accept it from you. What I urge you to do, Senator Wright, is to ask all of your questions and I will answer all your questions. This is a little bizarre, frankly, because you announced in your first contribution that the Greens support these government amendments. So we are debating government amendments that you have announced you support. You then asked a series of questions that have nothing to do with the amendments. You have asked a series of questions which relate to aspects of the PJCIS report which do not bear on the amendments which are the question before the chair.

But, be that as it may, I understand that a degree of latitude is allowed in these debates to range over matters that are not precisely on the point of the question before the chair, which is why am not saying that you are out of order here. In order to deal with your questions and progress this debate in the most efficient manner—and to avoid the cynical abuse of standing order 189(3), which we saw from your colleague Senator Ludlam not long ago—I am proposing to listen to your questions carefully, as I have been doing, make a note of each of them and, when you have finished asking all your questions, respond to all of them. You may have subsequent questions of clarification arising out of that. That is a matter for you.

Perhaps you are being made the play thing of a more Machiavellian colleague to your immediate right. Senator Wright, I do not want this debate filibustered. These are important matters. You have announced that you are supporting these amendments and yet, between you, Senator Ludlam and Senator Milne, somehow we do not seem able to get to a vote. Nor, indeed, do we seem able to get to a position where you have asked all your questions so that I can answer all your questions.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

There is quite a lot there, Chair. Firstly, I am a big girl—I am a very big girl—and I am big enough and ugly enough to determine my own questions. I do not need to be patronised in any way by anyone. Secondly, yes, I am halfway through my first term in this parliament, but I have sat through enough committee stages of debate to be very, very clear that the purpose of this process in the Senate is to enable questioning, debating and understanding about the implications of any legislation that is being proposed either by the government or whoever has introduced the bill. It is by no means unusual to ask broad-ranging questions. I am also a lawyer, and I know that to some extent even comments that are made in the course of parliamentary debates can provide information and assistance in limited circumstances when interpretation of the legislation is ambiguous and needs to be clarified. It is very useful to have an opportunity to ask questions where there are provisions that are begging explanation and which are not clear. As I have said consistently throughout this debate: this is not something I thought up in the shower this morning; these are questions that have been legitimately put by a range of organisations, and to parliamentary committees in some cases, and I am seeking clarification. This is the national Parliament of Australia, these are significant laws and people in Australia have a right to understand how they may work once they are passed. That is the basis on which I am asking these questions.

I am reassured to think that if you give answers to the questions I have asked, Attorney-General, then there will not be some game played whereby it will be the last speech and then we will have to go to a vote, but that I will have an opportunity to clarify, in good faith, those aspects that I am not clear about. That being the case, I am happy to hear now the responses to my questions. They were all the general questions that I had, and in relation to the amendments. As I said when I was asking my first question: while these amendments go to some of the recommendations of the PJCIS, they do not go to all of them. They certainly do not allay all of the concerns that the Australian Greens have, but given that they do improve the bill we will be supporting them. I am happy to hear answers to those questions now, if the Attorney-General is minded to provide those.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Thank you, Senator Wright. I thought you had more questions, I must say, but if those are all your questions then let me give you the answers. In fact, Senator Wright, there are really only three issues you have raised.

First of all, you addressed recommendation 2 of the PJCIS report. I am asked why it is that the legislation does not define the expressions 'supports' and 'facilitates'. What recommendation 2 in fact does, and what the government has accepted because the government accepted all of the PJCIS recommendations, is to provide guidance in a revised explanatory memorandum of those terms. There is a particular reason why both the PJCIS and the government, in responding to its recommendations, have decided to approach the matter in that way. Those terms are borrowed from the Criminal Code. They are not defined in the Criminal Code either, but they are the subject of a body of judicial interpretation. The word 'supports', as you would know, Senator, as a lawyer, is not a lawyer's term of art; it has its common speech meaning. The word 'facilitates' is not a lawyer's term of art; it has its common speech meaning. Those terms used in a number of sections of the Criminal Code have been interpreted by the courts.

So you will readily understand, I am sure, Senator Wright, that if we were now to introduce a statutory definition of 'supports' and 'facilitates' here, then we would have the logical problem of having the terms undefined in other provisions of the Criminal Code, except by judicial interpretation, but defined in this section in a way which may not precisely mirror the judicial interpretation of the words elsewhere, so there would be the risk of inconsistent sets of definitions. You know the way courts approach these issues, Senator Wright: they would say, 'Well, the legislature, in its wisdom, defined these terms here, but it left them undefined there and there must be a reason for that, so the terms here must have a different meaning to the terms elsewhere in the legislation'. Purely from a legislative drafting point of view, the decision was made by both the PJCIS and by the government, in responding, to maintain consistency throughout the Criminal Code in the use of these terms but, as is commonly done, to give a fuller explanation in the explanatory memorandum. That is what the PJCIS asked us to do, and that is what we are doing.

The second issue you raise is an issue raised by recommendation 7 of the PJCIS report, and it is also an issue raised by paragraphs 1.73 through to 1.76 of the human rights committee report. I should say that the human rights committee report was only tabled during the course of the afternoon. I have not had an opportunity to study it carefully, but I accept what you say: that the paragraphs from which you have quoted—paragraphs 1.73 through to 1.76—raise essentially the same issue—that is, the definition of a class of persons. Recommendation 7 of the PJCIS report also was to the effect that that term should be explained in the EM, not in the bill, and that recommendation has also been adopted by the government.

What the amended EM which deals with this matter will explain is that a class of persons is identified solely by reference to the involvement or likely involvement of all of its members in activities of the type specified in paragraph 9(1A)(a) and not the personal or situational characteristics of individual persons, such as religion, political or ideological orientation, ethnicity or mere presence in a particular location. The activities specified in paragraph 9(1A)(a) are activities which involve a threat to security. The common feature of the class members is their involvement in hostile or prejudicial acts—not whether or not, for example, they happen to belong to a religious group or a political or ideological group or a particular ethnicity. So the meaning of 'class' is both narrow and specific to engagement in unlawful conduct. I should add that the Attorney-General's agreement to a class of persons can only be provided where the entire class of persons is involved or is likely to be involved in an activity or activities that are or are likely to be a threat to security as defined in section 4 of the ASIO Act.

In particular I want to make it clear to you, Senator Wright, that the class of persons is defined solely by reference to the involvement or likely involvement of all of its members in an activity that is or is likely to be a threat to security—and not the personal or situational characteristics of individual persons. That is why, by the way, the identification of a group by reference to a class of persons, as opposed to a nominated individual or individuals, is adopted—because, to be a class member, every member of that group has to be involved in the activity prejudicial to security. This is a compendious way of dealing with one or more activities inimical to security in which a multiplicity of persons are jointly embarked. That is the reason for the adoption of that language. It will be clarified in the amended explanatory memorandum which will be circulated tomorrow. That equally explains the question posed by the Human Rights Committee.

Thirdly, Senator Wright, you asked on what basis 7 March 2018 was set as the date of review of this legislation by the PJCIS. The PJCIS report on the foreign fighters bill, of which this is, in a sense, a further elaboration, recommended that certain powers be reviewed and sunset 18 months and two years, respectively, after the next federal election—18 months for review and two years, potentially, for sunset. Rather than have uncertainty about the dates in the legislation, dates 18 months and two years after the third anniversary of the last federal election were used. Those dates are, respectively, 7 March 2018 and 17 September 2018. The judgement that was made, purely for the sake of convenience and clarity, was to take the date three years after the 2013 federal election and identify dates, respectively, 18 months and two years after that. Those were the three issues you raised, Senator Wright, and those are the answers.

Senator Ludlam, you referred to a report by a journalist called Heath Aston quoting Vice Admiral David Johnston. I of course adopt the prudent practice of never taking anything that you say at face value and I will check the report of Vice Admiral David Johnston's remarks. Nevertheless, your question was, according to my notes: is it the policy of the Australian government to seek out and target Australian citizens and is this the purpose of these amendments? The answer to both of those questions is no.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Attorney. I do have some questions that flow from that. Although you did take good notes of some of the questions I was asking, there were some you did not respond to. I do not know if that was because you did not want to respond to them or because you did not note them. They were questions about the necessity of the measures and about how these things will actually look on the ground—the context.

First, however, there was an issue about which I wanted to seek clarification. You said, I think, that the two phrases that I had asked about—the 'support and facilitate' phrase and the 'classes of Australians' phrase—are in the explanatory memorandum. Is it right that that has not yet been circulated?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

That is right.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

That makes it a little difficult to understand what the implications—

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Wright, I have asked for that explanatory memorandum to be circulated—

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brandis! In your urgency, you did not wait for the call. Senator Wright has not finished her speech.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I was trying to respond to Senator Wright's questions.

The TEMPORARY CHAIRMAN: You have to ask me for the call. You might sit down for the moment, because Senator Wright was on her feet and continuing to speak.

I am not going to ask you, Madame Chair. I am going to reply to Senator Wright.

The TEMPORARY CHAIRMAN: Please take your seat, Senator Brandis. Senator Wright has the call.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I am sorry—I automatically sit down. I am a bit too polite, I think.

The TEMPORARY CHAIRMAN: I appreciate that, Senator Wright. Please continue your remarks.

I just automatically did. The point that I make is that this is genuinely frustrating because, if that explanatory memorandum had been circulated before we were debating this issue, some of those questions that I asked may not have needed to be asked or, indeed, I may have other questions that arise from that when I see it. I was listening carefully to the reading that the Attorney-General gave, but I was trying to understand quickly what the implications of that kind of definition might be.

I will come back to the question—and, Attorney-General, you may want to now respond to that—but I will ask another question in the meantime so that you can respond to that too. I did ask not only how the term 'supports and facilitates' has been defined in the redrafted explanatory memorandum—because I understand now that we will see that tomorrow and, presumably, before we vote on the bill; I am hoping for obvious reasons—but also what that will mean in context. That is because the potential breadth of that phrase has caused concern, and some submission makers have even suggested that it could be used to prevent a person from, for instance, using social media or accessing online banking, if it were thought that it might be useful for a terrorist investigation. So what are the outer limits, in a sense, of that regime that is being proposed in the bill and the definition of that phrase?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I am very perplexed, Senator. You were criticising me a few moments ago for not responding properly enough to your questions and now, Senator Wright, you are criticising me for being too eager to respond to your questions. All I was trying to tell you, Senator Wright, is that I have asked for the explanatory memorandum to be available as early and as quickly as possible. I expect that it will be able to be circulated in the chamber when the debate resumes tomorrow morning. That was the answer to the question that you asked me and then did not pause for the answer when I offered it.

Senator Wright, in relation to the substantive issue you raise, I think I have already addressed this by pointing out that there are accretions of judicial interpretation to the existing use of those terms in the Criminal Code. It is very bad practice, in fact, and productive of confusion, frankly, to define too narrowly generic common speech language in an act of parliament and to rule in and to rule out whether language is caught by generic common speech words on a series of hypothetical examples. That is not what parliaments do; that is what courts do. The word 'support' and the word 'facilitate' each have an ordinary natural meaning in the English language. As those words are used in the existing provisions of the Criminal Code, they have on occasions been applied to the facts of particular cases, and courts applying those general words to the facts of particular cases have developed their meaning, in the way that the law always does when it applies general language to particular instances. That is the way this should work. That is why the PJCIS and the government both decided that it would be bad drafting practice to include a definition within the statute of these words which have an ordinary natural meaning in the English language. I am not going to speculate about what a court might do on a hypothetical case in applying general words to particular hypothetical facts. I am just not going to do it. You said yourself, Senator Wright—and you were quite right in saying so—that on occasions courts, in construing an act, will have regard to what ministers say in the course of parliamentary debates. How wrong would it be of me, as the responsible minister here, to, as it were, dictate to the guidance of a court how it ought to apply these general words in particular hypothetical cases?

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I agree with you: it is the role of courts to determine the meaning of legislation in a particular case when that case goes to the court. However, my view is that it is the responsibility and accountability of parliament to take responsibility for the language that it chooses to enact in legislation which will potentially affect people's lives significantly. It is certainly an accepted principle of law that it is desirable to have clarity in legislation so that a person who is going about their business within the community has some understanding about what behaviour may or may not be caught by what, in this case, are significant provisions which have the effect of potentially destroying someone's livelihood, in the sense that they may not be able to work, there may be an order that they are not able to attend their place of work, and so on. Always, as much certainty as possible is desirable so that people do not have to 'suck it and see'—they do not have to wait and see if they are caught up by behaviour. When there is broad, ordinary language that is encompassed in ordinary meaning—which could be extremely broad; 'support' is a very broad word—I put it to you, Attorney, that it is reasonable to ask about hypothetical examples. I think the requirement for certainty would be directly proportional to the consequences of the legislation or the provisions that are being enacted—and these are significant provisions with a significant effect on the human rights of Australian citizens. That is why I have been asking the question, but I accept that you are not going to give any further answers on that.

I come to the response that you gave to my request for more clarity on the definition of the class of Australian persons. I do not have the explanatory memorandum in front of me, so I do not have the wording here, but I noted that paragraph 9(1A)(a) has defined or indicated that this will not be a class by reference to ethnicity, religious or political belief but will be a class of persons that has to be involved in activity that is prejudicial to security. If I have that wrong, I would appreciate you correcting me on that.

In that case, I am still interested in asking the question: how would that provision operate in context? How would it be possible to identify a class of persons in a foreign country that is involved in a way that is prejudicial to security? How will they be identified? I can envisage various scenarios where—even if people are in a particular geographical area, perhaps dressed in certain clothing, perhaps holding certain flags that might suggest that they are associated with a terrorist organisation—it may still be possible that some of those people are there subject to coercion or for some other reason. I am interested in the parameters again, in how that will operate contextually.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

They are going to be defined by reference to their conduct. It is that simple. If it is the kind of conduct to which section 9(1A)(a) applies, then they can be deemed a constituted class. For that to occur, every such person has to partake of the proscribed conduct. If not, then not.

If I may say so—with all due respect, Senator Wright—this is a very good example of why it is not a useful or a fruitful exercise, in a debate of this kind, to continually propose hypothetical situations. This is for investigators, and prosecutors, and ultimately it is for the courts to determine. It is for the legislature to give clear guidance, which in the nature of statutory language is of necessity at a level of generality. It is for investigators—perhaps prosecutors, perhaps courts ultimately—to apply those general words to a particular case. But, to answer your question about the conceptual level, the way in which membership of a class will be judged is by reference to conduct.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

I indicate that, for the sake of progressing this matter, I do not have any further questions.

The TEMPORARY CHAIRMAN: The question is that government amendments (1) to (6), (8) to (14), (17), and (19) to (30) on sheet ES111 be agreed to.

Question agreed to.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

by leave—I move government amendments (7), (15), (16) and (18) on sheet ES111 together:

(7) Schedule 1, item 13, page 7 (lines 18 to 28), to be opposed.

(15) Schedule 1, items 23 and 24, page 8 (line 23) to page 9 (line 10), to be opposed.

(16) Schedule 1, items 26 and 27, page 9 (lines 20 to 25), to be opposed.

(18) Schedule 1, item 29, page 10 (lines 4 to 14), to be opposed.

I think, in view of the time, I am going to have to make my remarks about these amendments tomorrow when debate resumes.

The TEMPORARY CHAIRMAN: Indeed, I think that may be the case.

Debate adjourned. Progress reported.