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

The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 is the third national security bill the government has introduced into this parliament, though it is essentially ancillary to the second—the foreign fighters bill—which passed the parliament with Labor's support on 29 October 2014. This bill, introduced into the parliament the same day, 29 October, contains one measure recommended by the Parliamentary Joint Committee on Intelligence and Security in its report on the foreign fighters bill but which was not able to be legislated in that bill due to a need to consult with states and territories.

The bill also contains three new measures: further changes to the control order scheme, streamlining the process for the AFP to apply to the Attorney-General for consent to seek a control order from an issuing court and expanding control orders to apply to persons involved in supporting or facilitating terrorist activities; also, provision for emergency ministerial authorisation for the activities of the Australian Secret Intelligence Service, or ASIS, the Australian Geospatial-Intelligence Organisation, or AGO, and the Australian Signals Directorate, or ASD; and, lastly, provision for cooperation between ASIS and the Australian Defence Force on military operations. The three new measures were developed in response to operational needs identified by Australia's anti-terror agencies after the foreign fighters bill was introduced into parliament. The government sought to include these measures in the bill without first revealing these measures to the Australian people and without the full scrutiny of the intelligence committee.

It has consistently been Labor's position that all national security legislation should be rigorously examined to make sure that it not only will be effective in protecting our nation but also does not unduly infringe on important rights and freedoms. In keeping with that position, Labor insisted to the government that these new measures be introduced in a separate bill and subjected to public scrutiny and full intelligence committee inquiry. Accordingly, this bill was introduced into the Senate on 29 October and was referred to the Parliamentary Joint Committee on Intelligence and Security. The PJCIS sought submissions, held brief hearings and tabled its report on 20 November. I would like to thank members of the committee for their diligence in producing their report promptly. The committee's inquiry into the bill followed on almost immediately from the two successive inquiries the committee held concerning the first two of the government's national security bills—both of which were very substantial pieces of legislation. I thank the members of the committee and the committee secretariat for their tirelessness in dealing with this third inquiry. I am also grateful to those community organisations and members of the public who participated in the inquiry, many of whom also participated in the two preceding inquiries.

The intelligence committee recommended in its report that the bill be passed, and it made 15 substantive recommendations. Significant recommendations include, first, amendment of the bill to require the AFP to provide the Attorney-General with summary of facts when seeking consent to apply to the court for an interim control order, including any facts indicating why it should not be made; second, 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. The third significant recommendation is to shorten periods for notification of the relevant minister where agencies issue emergency authorisations. The fourth recommendation is that the government urgently appoint, again, 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 the fifth recommendation is for a range of oversight measures. Labor has asked the government to implement those recommendations and the government has agreed to do so; accordingly, Labor will 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. It is worth remembering that in the amendments to the foreign fighters bill that Labor insisted on, we ensured that the entire control order regime would sunset two years after the next federal election. As I said here when speaking to that bill, control orders are extraordinary and unprecedented measures which were introduced in the mid-2000s in response to the September 11 attacks and the Bali and London bombings. In recognition of their extraordinary nature, the Howard government subjected them to a 10-year sunset period. The Abbott government sought to extend this for a further 10 years. Labor was not satisfied that the case had been made for such a lengthy extension. It is not acceptable that these extraordinary powers could operate for two decades without being properly reviewed by the parliament. Labor will always resource our agencies appropriately to deal with the genuine threats that Australia faces, but we will not abandon scrutiny of agency powers properly considered special or emergency measures.

Importantly, Labor has ensured that these sunset provisions are accompanied by mandatory reviews ahead of time. As amended, the foreign fighters bill provides for statutory review of the control orders regime, among other powers, by both the intelligence committee and the Independent National Security Legislation Monitor. The sunset date and the statutory review which will precede it will ensure that the entirety of the control order regime is again brought before the parliament for its close consideration. That review will necessarily examine the operation of the amendments to the control order regime effected by the current bill.

In its latest report, the intelligence committee has added to this review process by recommending that the government expressly task the monitor with reviewing whether recommendations for safeguards on the control order regime recommended by the 2013 COAG review should be implemented. I note that the office of the Independent National Security Legislation Monitor was created by Labor to review, on an ongoing basis, the operation, effectiveness and implications of Australia's counterterrorism and national security legislation. In carrying out this important oversight role, the monitor assists in maintaining public confidence in our national security agencies.   The monitor's role is particularly relevant in the context of the recent changes to and expansion of our counterterrorism and national security laws, as the monitor is also required to consider whether those laws contain appropriate safeguards for protecting the rights of individuals and that they remain necessary and proportionate to any security threats that our nation faces.

I also note the recommendation by the intelligence committee in its latest report that the government appoint a new monitor to fill that important office, which has been vacant since the expiry of Mr Bret Walker SC's term some seven months ago—which is incredible in itself, given that this is the third significant piece of legislation in this space. Senators may have a sense of deja vu about this recommendation. The intelligence committee recommended in its report on the first bill, the National Security Legislation Amendment Bill (No. 1)—tabled on 17 September—that the government appoint a new monitor 'as soon as practicable'. The intelligence committee repeated itself in its report on the foreign fighters bill, tabled on 17 October, saying the position of monitor should be 'urgently' filled. In its report on the current bill, the committee repeated this recommendation, saying that it was a matter of 'absolute urgency'. Labor is pleased that the government has finally heeded this recommendation and will very shortly announce the appointment of a new monitor. We look forward to the new monitor's contribution at a time of great change in our national security laws.

As I have said here when speaking on the previous two bills, and as the shadow Attorney-General, the member for Isaacs, has said in the other place, Labor approaches national security legislation as a responsible opposition should. Having carefully considered the bill put forward by the government, and having ensured a number of significant improvements to that bill through the intelligence committee inquiry process, Labor has agreed to support the measures being proposed to bolster our national security laws. Here, as previously, Labor has insisted on proper scrutiny. Here, as previously, Labor has worked constructively as an opposition to assist the government in getting the bill right. Here, as previously, Labor is willing to support changes to our national security laws that are necessary and, I stress, proportionate to meet the changing threats that our nation faces. On that basis, I indicate that Labor will be supporting the legislation.

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

I rise to oppose the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014. This is yet another draconian piece of legislation to add to what is becoming an impressive collection of rushed, poorly crafted national security legislation pushed through this place by the government and, despite all their rhetorical protestations, supported by the opposition. This bill is another highly disturbing example of excessive law-making professed to be about protecting Australians from harm but in fact intruding upon the rights and freedoms of Australians at home and, this time, when overseas as well. It has been introduced without regard to concerns raised by legal and other experts, without scrutiny by a multiparty Senate committee and in the absence of an Independent National Security Legislation Monitor.

Next week I will be introducing a private senator's bill to amend the Independent National Security Legislation Monitor Act 2010 to preserve and enhance this crucial oversight and scrutiny role, which has been left vacant since April this year. Among other things, my bill will aim to: ensure that the monitor can review proposed as well as existing national security legislation; make it clear that the monitor is required to consider whether Australia's national security legislation is a proportionate response to the national security threat faced; ensure that the position of monitor is a full-time position, cannot be left vacant and is supported by appropriate staff; and ensure that all reports of the monitor are tabled in parliament and that the government is required to respond to the recommendations of the monitor within six months of tabling, something which has not occurred in the past.

The crucial role of the Independent National Security Legislation Monitor, the INSLM, was outlined by the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, in their recent report into this bill. The Parliamentary Joint Committee on Intelligence and Security recommended that the government finalised the appointment of the Independent National Security Legislation Monitor as a matter of absolute urgency. This is not only a position the government has left vacant for a good part of the last six months; it is also a position the government wanted to abolish. I know this government finds it difficult to take advice from the experts, but its attempts to avoid scrutiny of such important legislation, which will affect the rights and freedoms of Australians, are completely unacceptable.

That the position of Independent National Security Legislation Monitor has remained vacant since April is, I believe, no coincidence. This vacancy has coincided with some of the most significant changes to our national security legislation in my lifetime, and the government has wanted to avoid scrutiny on each of the national security bills at every step of the way. I have stood in this place late at night, when the press gallery is empty and the nightly news has gone to air, and witnessed the government push draconian national security legislation through this place without enough time for sufficient scrutiny, without adequate time for senators to know exactly what they are voting for or against, without a full appreciation of the unintended consequences for our freedom of association, of speech, of movement, of the press—and I could continue.

The Australian Greens understand that our law enforcement and intelligence agencies must have the powers to find and prosecute those who engage in terrorist acts or other such hostile activities, but we do not accept that the rights and freedoms of Australians need to be significantly eroded in order to achieve this goal. It is crucial we are able to protect innocent Australians while prosecuting the guilty, and it is crucial we have independent oversight of national security legislation to ensure it is a reasonable, necessary and proportionate response to the national security threat we are facing.

I will now go to the specific content of this bill. I will go first of all to schedule 1 of the bill, which makes control orders easier to get and for a broad range of purposes. The expansion of the control order regime is one of the most serious aspects of this bill. In its 14th report, the Parliamentary Joint Committee on Human Rights considered the extension and amendment of control orders which was effected by the last national security legislation this Senate considered, the so-called foreign fighters bill. The committee observed that the control order regime involves very significant limitations on human rights in Australia. The committee noted that the control order regime is a coercive regime which engages a significant number of human rights, including the right to security of the person and the right to be free from arbitrary detention, the right to a fair trial, the right to freedom of expression, the right to freedom of movement, the right to privacy, the right to protection of the family, the rights to equality and nondiscrimination and the right to work.

Essentially, the control order regime allows the imposition of controls on an individual, limiting their freedom, without needing to follow the normal and long-established criminal law process of arrest, charge, prosecution and determination of guilt beyond a reasonable doubt on the basis of evidence. A control order can impose a number of obligations, prohibitions and restrictions on the person who is the subject of the order, and these include: where a person must stay and when; preventing a person from going to certain places; preventing a person from talking to or associating with certain people; preventing a person from leaving Australia; requiring a person to wear a tracking device; prohibiting access to or use of specific types of telecommunications, including the internet and telephones; preventing a person from possessing or using specified articles and substances; and preventing a person from carrying out specific activities, including in respect of their work or occupation—their livelihood. Control orders can be applied to people who have not been charged with a criminal offence and even to people suspected of harbouring a criminal intent.

These orders have been consistently criticised by domestic and international human rights bodies and described by independent experts as in urgent need of reform. They have been used only twice in Australia and are supposed to be directed at serious criminal activity when a threat is eminent and decisive urgent action is needed to prevent serious harm—serious criminal activity, like participation in terrorism, terrorist training or hostile activities. They exist alongside an ever-expanding arsenal of counter-terrorism that allows police and ASIO to go undercover with immunity to put people and their friends and family under extensive and intrusive surveillance, to arrest, question and detain people without charge, to stop and search people and places, and to charge people on the basis of who they know or what they say. This is Australia in 2014.

This bill would make it possible to get a control order if a police officer suspects on reasonable grounds that it would prevent the provision of support for, or facilitation of, a terrorist act or hostile activity overseas. This bill would also dilute the existing safeguard that requires the court to consider whether each obligation, prohibition or restriction contained in the control order is proportionate and necessary and will make other procedural changes to make control orders easier to get. Some submission makers to the PJCIS inquiry suggested that this would mean that control orders would be sought against controversial street preachers or others who spread extremist interpretations of Islam and expressed their support for violent acts overseas or to prevent engagement in online media, online banking, community or religious meetings, or religious activities, such as attendance at a mosque. The Australian Greens consider this to be a completely unnecessary extension of an already faulty regime that has been consistently criticised by human rights bodies and the Independent National Security Legislation Monitor.

The Australian Greens oppose the changes proposed in schedule 1, particularly those proposing additional grounds for which control orders can be obtained and the provisions in schedule 1 which would remove the requirement for an Australian Federal Police officer applying for a control order and the issuing court to consider the necessity and proportionality of each of the obligations, prohibitions or restrictions on a person. The PJCIS also shared some of these concerns and has made a number of recommendations for amendments to schedule 1. If contrary to this position schedule 1 of the bill is pursued, the Australian Greens have proposed sensible amendments to at least ameliorate the harsher aspects of this schedule.

The Australian Greens' amendments limit the use of control orders to require a clearer, stronger nexus between the activity of the person and the commission of a specific criminal offence. The amendments do this by requiring the police officer who is applying for the interim or confirmed control order to demonstrate that he or she suspects on reasonable grounds that the person has in fact provided support for or otherwise facilitated a terrorist act or a hostile activity in a foreign country. As drafted, the bill allows control orders to be sought if reasonably suspected to be necessary to prevent the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country and preventing the provision of support for, or the facilitation of, a terrorist act. This is a very slippery slope. It is absolutely unacceptable that a control order would be sought purely as a preventative measure, which is what this bill is seeking to do, when there is no clear evidence that the person subject to the order has actually formed a criminal intent or taken any specific action towards the commission of a criminal offence. Our amendments would ensure that control orders are available only in the most serious of circumstances where the authorities have real evidence to demonstrate that they are necessary to protect the public from a terrorist act or to prevent engagement in a hostile activity overseas.

As currently drafted, the proposed changes in schedule 1 of the bill would significantly expand the scope of the control order regime from one of last resort, which was its original intent, to one available at the early stages of a foreign incursion or terrorist investigation. Expanding the scope of the control order regime goes against expert advice, including that of the former Independent National Security Legislation Monitor, Bret Walker SC, who found that control orders were 'not effective, not appropriate and not necessary' and recommended that they be scrapped. Yet here we are with the government once again ignoring the expert advice and ploughing ahead with an expansion of this faulty regime without making the case for these changes.

As the Gilbert + Tobin Centre of Public Law wrote in their submission to the PJCIS, the bill's explanatory memorandum justifies the expansion of the control order regime by pointing to the threat posed by Islamic State and the return of foreign fighters to Australia. Their submission goes on to say that this assertion is 'not sufficient to justify the significant expansion of measures that have already been discredited by major inquiries'. The Gilbert + Tobin Centre of Public Law submission states:

In the absence of some significant evidence presented by the government as to why these changes are necessary to prevent terrorism, we believe that the Committee should recommend against their enactment.

Law enforcement and intelligence agencies in Australia already have a broad range of powers at their disposal. They have extensive surveillance powers, can go undercover with immunity and can already arrest, question and detain people without charge. Why they must continue to significantly expand the flawed control order regime is beyond me, and beyond many others it seems. One of the reasons the INSLM recommended the control order regime be scrapped was that such significant restrictions should not be placed on an individual's liberty in Australia in the absence of a finding of criminal guilt.

I will turn now to schedule 2 of the bill, which relates to ASIS and defence related assistance. Schedule 2 of this bill makes changes to the Intelligence Services Act to make it clear that Australia's overseas spy agency, the Australian Secret Intelligence Service, which I will refer to as ASIS, can help the ADF, the Australian Defence Force, in support of military operations. It also dilutes procedural safeguards relating to the grant of emergency ministerial authorisations. These changes greatly extend the functions of ASIS that are already extremely broad in scope and that already exempt ASIS from criminal and civil liability, without providing any new limits or safeguards to ensure that ASIS does not engage in activities that cause harm or result in the breach of fundamental rights. The Gilbert + Tobin Centre and some other commentators have expressed concern that the changes proposed in schedule 2 may lead to ASIS being involved in the targeted killings of Australian citizens fighting in Iraq and Syria. They say that such killings raise significant and difficult questions of domestic policy, human rights and international law. Having a government being able to kill its own citizens in foreign countries, and in the absence of greater parliamentary and public debate about these matters—this should not be facilitated by this bill.

There is also strong concern among legal experts that the Intelligence Services Act does not contain a general prohibition on torture. Other concerns with schedule 2 relate to the changes to the authorisation process. The proposed changes in schedule 2 are of concern as they would enable a minister to authorise an ASIS operation to apply to a class of Australian persons rather than requiring individuals of concern to be identified. This then subjects whole groups of Australians who are overseas to surveillance by ASIS without requiring the authorisation process to actually identify a particular individual. This would vastly extend an already invasive surveillance regime to cover people who have not been identified as raising any particular risk or concern to the safety of others or to the security of Australia, provided they are within the class of persons specified by the minister—doing it in a 'job lot', if you like.

The Inspector-General of Intelligence and Security has flagged that this may pose difficulties for effective oversight. The proposed changes in schedule 2 also expand the circumstances in which 'emergency authorisations' can be sought—meaning that authorisations can be made orally by the minister, or even by ASIS itself in certain circumstances. Many of these features of schedule 2 have been criticised sharply by those who have made submissions to the PJCIS, and have led to the PJCIS making numerous recommendations for reform of this bill—reforms that would begin to restore some fairness to this process. It remains to be seen if these reforms are adopted, but, even if they are adopted, the government has failed to make the case for why such extensive powers are needed, and why adequate safeguards and limitations have not been introduced.

The Australian Greens consider this to be a completely unnecessary extension of an already overly expansive regime. The Australian Greens oppose the changes proposed in schedule 2. If these features of schedule 2 are pursued, the Australian Greens have proposed an amendment that would specifically prohibit ASIS from engaging in any conduct that would amount to torture in accordance with Australia's obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Torture has absolutely no place in Australia. Under section 14 of the Intelligence Services Act, ASIS officers are not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency. This has given rise to concerns that, if this bill extends the scope of ASIS's activities to include the provision of assistance to the ADF, this could lead to the targeted killings of Australian citizens fighting in Iraq and Syria, or to other acts constituting serious human rights incursions—including torture. There are currently no specific protections in the Intelligence Services Act to guard against the use of torture by ASIS in its overseas activities. There is, however, limited protection against direct use of violence or weapons by an ASIS officer. The Australian Greens' amendments would make it crystal clear that ASIS officers must not be involved in any conduct that would be contrary to Australia's obligations under the convention against torture.

In closing, I want to reiterate the serious nature of the bill which we are debating. We are talking about expanding a flawed control order regime. No longer would control orders be used only as a last resort. This bill risks control orders being sought during the early stages of a foreign incursion or terrorist investigation. We are debating a bill that may lead to ASIS being involved in the targeted killings of Australian citizens. Once again, the Australian Greens condemn acts of terrorism in the strongest possible terms. But we do not support this government's insistence on eroding the rights and freedoms of Australian people. The Australian Greens will be opposing this bill.

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

Senator Wright has just said that this is a very serious piece of legislation, and indeed it is. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 is the third serious piece of legislation about national security which this chamber has considered in recent months. I know that Senator Collins talked about the process that we followed in terms of the bills following each other, but, just to put it on the record, this particular bill actually looks at taking a step further from the recent bill on foreign fighters. It has three new measures: changes to the control order scheme, which we have heard discussed by previous speakers; streamlining the process for the AFP to apply to the Attorney-General for consent to seek a control order from an issuing court; and expanding control orders to apply to persons involved in supporting or facilitating terrorist activities. Secondly, there is the provision for emergency ministerial authorisation for the activities of the Australian Secret Intelligence Service, or ASIS, the Australian Geospatial-Intelligence Organisation, or AGO, and the Australian Signals Directorate, or ASD; and the provision for cooperation between ASIS and the Australian Defence Force on military operations.

These three new measures were developed in response to operational needs and to needs which were identified by the agencies after the foreign fighters bill was introduced into parliament. That reflects the evolving nature of this area, particularly as we are facing a situation which I believe everyone agrees is a real threat—an international threat and also a local threat—to our security with the rise of the insurgencies in Syria. The important thing for Labor is to ensure there is a very strong balance between the need for intervention and for powers to be given to our security agencies, and the need to ensure the Australian community has trust and confidence in the system and does not lose the rights we have always valued in our community—the kinds of rights Senator Wright was discussing; both our human rights for our own citizens and our international obligations. It is a balancing process—looking at the threat, assessing the threat and responding to the threat and, in those circumstances, ensuring we have the strongest possible scrutiny of our legislation and our operations in our system at home. That is what we expect of our security systems, and it is what I believe the community expects.

I believe there has been some shaking of that trust over a period of time. I believe a lack of trust has been building in the community because of the speed at which some of the changes have been introduced and also because of the feeling that there has not been appropriate scrutiny of the changes proposed. We have looked at making very significant changes to our processes. In the current system, we ensure this kind of change is appropriately scrutinised through the processes that are already inbuilt. Core to that is the operation of the joint parliamentary committee, the PJCIS. This joint committee must have the power, the time and the resources to effectively scrutinise the major changes the government has brought forward. On each occasion when the three bills came to this place there was an extraordinary rush in terms of the time the committee had to consider the submissions put forward and, just as importantly, in terms of the time allowed for the community to engage in the process. We know that across our community we have a number of organisations—highly-regarded organisations and groups that do specific research in these intellectual areas—and community members who feel very strongly about national security. They feel very strongly about any threats to individual or community freedoms. They must have the opportunity, in the system we set up, not only to engage in the process but to engage effectively— which means time to research, to prepare information and to see the content of the information that is being brought forward. In each case, over the last few months, there has been a great rush. We have been deeply impressed by the way that range of organisations has taken the time and effort to engage and bring forward their concerns to ensure the government and the parliament hear what the issues are. In short, they have ensured there is scrutiny.

People can put forward submissions; they can come before a parliamentary committee and engage in questioning and raising concerns that can then build on the legislation and make sure it is better. We know that works. We know with the previous bill, which is known as the foreign fighters bill, the joint committee brought forward 34 recommendations through that process. Those recommendations were accepted by the government and passed into law. That made the bill stronger; it made the bill more responsive and it gave the community an opportunity to feel as though their concerns were listened to and, in all cases, responded to. In some cases the concerns were accepted and brought into the legislation.

The joint parliamentary committee has made 15 recommendations on the bill currently before us. It is my understanding those recommendations have been taken up by the government. Certainly, that was what was in the media this morning, so why would we doubt it! Senator Wright went through, in some detail, some of the issues raised by the people who came forward with their expertise to look at the bills and highlight where they thought the bills could be improved and where they thought issues around individual freedoms were threatened.

One of the areas that was scrutinised in the previous process was the feeling of individuals and groups in the community that they were in some way being targeted exclusively by the legislation. Those concerns need to be heard. They need to have a full response from the parliament and the various agencies to ensure there will be neither undue targeting nor an intrusion on the things we hold dear in our community.

We also have the work of the joint parliamentary human rights committee; I know Senator Wright referred to that in her contribution. This is another element of scrutiny in our parliamentary process: looking at what bills are being brought forward across the board and—particularly in the case of the national security bills—looking very clearly at the human rights aspects of these bills. I know the human rights report will bring forward concerns that have been identified; that is part of the ongoing debate.

There will be times when a decision will need to be made by the parliament and the government. They will listen to the concerns raised but they may determine that the level of the threat or the danger is such that decisions need to be made and explained on that basis. As a relatively new member of that human rights committee, that has happened with a number of these issues. The department has put forward the reasons for making decisions that could and do impact on human rights issues. We talk about freedom, and freedom of access, and the right not to be imprisoned or detained. Those things are part of the series of legislation but parliament has decided—at least with the foreign fighters bill—that the level of danger is so great there have to be decisions made. The important thing is that the scrutiny occurs—that there is appropriate scrutiny in our process and that the wider Australian community knows that not only does that scrutiny exist but that it operates effectively. We know, and I know Senator Collins talked about this, the role of the independent National Security Legislation Monitor. We believe that a decision on that position is going to be made very soon. Certainly, the Attorney-General, in response to a recent question in this place, said that there was no need to ask the question, because the government is going to respond. I have always thought it was a good process to ask questions and then get an answer.

In terms of the response, my understanding is that that position will be filled. That has been a regular recommendation of the Joint Parliamentary Committee on Intelligence and Security and also of individuals in this place and in the wider community. It is absolutely critical that the role of the Independent National Security Legislation Monitor be filled at all times—in particular when the government is moving significant pieces of legislation that impact on security issues. At this most critical time, it is important that that position is filled and that the wider community knows that that position is filled, so that those who are interested in these issues are able to see how it operates.

I do not believe that every person in the Australian community is completely engrossed in our national security system, but I know that some people are. I know that it is a really critical element of their knowledge and their experience that they want to know what is going on. In the evidence that has come before the joint parliamentary committee over the last three exercises of looking at legislation, the demand that this position be filled has been consistent—that we have, in our system, the operation of the Independent National Security Legislation Monitor looking at legislation; that we also have the important work of the Inspector-General of Intelligence and Security and her staff, which is a group that operates within the system to ensure that there is effective scrutiny; and, on top of that, because it is part of our job, that we need to have both the Joint Parliamentary Committee on Intelligence and Security and the Joint Parliamentary Committee on Human Rights working effectively. When we have those processes in place, there should be a confidence that, when legislation is brought forward that is looking at security issues in our community, there will be an effective and robust process of scrutiny that must ensure questioning and an expectation that there will be a full explanation from the department and the government on the rationale for the changes and also the operation of the changes and, most importantly, how the changes will be monitored into the future. That would be an expected process for this place.

There have been concerns that, over the last couple of months, those processes have not been as robust as they should be. By now, having three bills in a certain period of time, we should be about getting it right with how it works. When a request comes forward for a change because of an identified danger, then the process of the legislation goes through each of those elements. Public scrutiny in the operation of the parliamentary committee is absolutely critical. We know from our experience over the last three bills that there will be a response. There will be quite detailed responses and there will be a willingness to be engaged. Through this process with the bill before us today, we have 15 substantive recommendations. Those recommendations have made changes to what the original legislation proposed. For me, one of the most important ones is the fact that there needs to be justification for action. It should be a given that, when significant action is taken, there should be a clear justification for that action. One of the amendments that has been put forward is to require that the Australian Federal Police provide the Attorney-General with a summary of facts when seeking consent to apply to the court for an interim control order. This should and must include any facts indicating why it should not be made. When the AFP, as provided for in this legislation, is seeking to have an interim control order, there must be, when putting forward their case to the Attorney-General, a full explanation of why and also why not—what would be the impact of asking for that particular control order change? That would mean that there would be a record of the reasons for the decision that was made.

We know that, over the last few months, the issues of control orders have been very significant in the community—the operation of control orders, to whom they will apply, what will be the arguments for them and the decision-making process for that have all been subject to considerable concern in the wider community. In fact, in the earlier bill, one of the issues was whether there would be a sunset clause into the future so that the whole use of control orders would be considered again—so we would not automatically continue to have this process in our system, because there are questions about whether this is the most effective way. The important thing is that these issues were raised and that there has been, through this piece of legislation, a response to ensure that there will be justification for such a significant decision from the Attorney-General.

There is also the 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. This is a detail of justification, making sure that there is understanding of why each element of the draft control order is justified. This makes sure that a need is identified so that the decision is made with full information. The shortening of periods for notification of the relevant minister when agencies issue emergency authorisation makes sure that there is not an unlimited-time process in place so that, once a decision is made, it would go on into the future without any termination.

One of the issues about which I have been most concerned over the previous months is a feeling that has been put forward in the community that the Labor Party has just waved this legislation through and that we have rolled over and said, 'Okay, government, you can have anything you want. We are not concerned about looking at how these bills will operate.' That is not right. It is very important that the community understands that, through the processes in an effective system of scrutiny, there have been major questions raised about the proposed legislation that has been put forward by the government. There has been an extraordinary effort made by all members of the joint parliamentary committees of intelligence and security, and of human rights. This legislation has not just been waved through. There has been real scrutiny.

Many people will feel that the limitations in the legislation have not been strong enough, and that is their right. They will view the legislation as being too strong. They will believe that there is too strong a focus, and that there is a limitation to rights. Labor believes that there has been a balance struck between acknowledgement of the danger and threat—and that changes have to be made—and ensuring that there is effective legislation and effective review so that people in Australia can feel safe and know that their rights are protected.

That is a tough balance, but we believe that that balance has been reached. That balance can only be maintained if the effective scrutiny in the system is retained and if there is appropriate resourcing to those scrutiny mechanisms. Should that be in anyway diluted, that incredibly important element of community trust—and, indeed, parliamentary trust—will be lost. If that is lost this legislation will lose its impact.

When the government moves legislation that affects the community's freedoms and rights as well as their security, if the community does not believe that the government has their best interests at heart we will have lost, because we will not have maintained the community feeling which is so important to Australians. Our clear message to the government is that we will support appropriate security legislation. We acknowledge that Australians are becoming much more aware of the dangers that are arising out of the militancy and the horrors of what is happening in the Middle East. However, we must ensure that at all times our parliament does its job to effectively scrutinise anything that comes before us. And that will be the message that we will continue to take through what will be an ongoing process.

This process must continue to look at the threats and ensure that we respond appropriately in Australia. But that must mean that the community is involved, as well, because this legislation does not belong to government; this legislation must be supported and owned by the wider community.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I rise to speak against the Counter-Terrorism Legislation Amendment Bill (No 1) 2014. This is the third—and narrowest in scope—tranche of the recent national security legislation, and I am sick of it.

I am sick of this government, with opposition collusion, chipping away at our rights and freedoms—rights and freedoms that took hundreds of years to build up, but that are rapidly being brought undone. Once again—as with the National Security Bill and the Foreign Fighters Bill—at no point has the passage of this bill into law been justified evidentially. In speeches, submissions, and articles on the previous two bills I asked for credible examples of harmful activities that only the passage of such laws would discourage. Once again, I make the same request. And once again I expect to hear nothing—because, I am sure, there is none.

On a first pass, part of this bill is actually useful—the proposed enactment of a statutory basis for ASIS to provide assistance to the ADF in support of overseas military operations. I understand that support of this nature has previously been provided only in an ad hoc way, without clear parliamentary authority. Government on the fly is never a good thing, and if this were all there was to the bill, I would support it. However, that useful change to existing law has been bolted onto an expansion of the control orders regime—something, in and of itself, obnoxious because it confounds the basic principle that people should not be deprived of their liberty without a finding of guilt.

This bill will make it much easier to obtain a control order, because it allows two extra grounds on which one can be issued. One, that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or, two, that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.

In my submission to the Parliamentary Joint Committee on Intelligence and Security—which I remind the government and opposition the crossbench is not represented on—I pointed out that these provisions are vaguely drafted and are not even linked to existing definitions in the Criminal Code. I believe they could be used—and I see no evidence to the contrary—to constrain speech: in particular, speech that falls short of incitement but endorses one or another form of extreme Islam. As I have already said, I believe that the main target is Hizb ut-Tahrir, and I am sure there will be further legislation if this law fails to silence them.

To their credit, the PJCIS, in its advisory report, agreed with me on this point, and recommended that the terms 'supports' and 'facilitates' be based on language in the existing Criminal Code. Yet, while the government says it accepts the recommendations of the PJCIS 'in principle', its response on this point is to make a change in the explanatory memorandum to this effect. This is ridiculous. A court will only look at the explanatory memorandum when the legislation is unclear. If there is potential for a need to look to the EM to understand what is intended, why not put it in the bill in the first place? I suspect the government is hoping the court will come up with its own interpretation of these words, which will be more broad than that in the Criminal Code.

Quite apart from the PJCIS's concerns, I wish to repeat my point that this bill catches all sorts of legitimate objections to foreign tyranny. Historically, and more recently, Australians have involved themselves in conflicts in the former Yugoslavia. I personally have no objection to anyone who advocates the violent overthrow of the regimes in Pyongyang or Harare. I suspect many people in this place would agree with me on the last two at least. As it stands, it is simply impossible to know in advance which foreign conflicts will attract censure and which will not.

Finally, control orders are civil orders—the grounds for one need only be made out on the balance of probabilities—yet to breach one attracts a penalty of five years' imprisonment. The idea of sending someone to jail for five years for something he says, on a balance of probabilities, should not be entertained in a liberal democracy.

The second 'bolt on' I find concerning is what amounts to a derogation from the convention of ministerial responsibility. As the law currently stands, emergency authorisations under the Intelligence Services Act must be made personally by a relevant minister—any one of the PM, the defence minister, the foreign minister or the Attorney-General. The authorisations, understandably, are very serious. They concern military operations against Australians who have taken up arms in countries like Iraq for terrorist organisations like Daesh. Leading lawyers—Professor George Williams of the University of New South Wales among them—point out that this amounts to a targeted killing regime. In principle, I have no particular difficulty with this, unlike some people. There comes a point where utterly demented hatred of Australia has to be recognised for what it is. However, the authorisation regime also has to be recognised for what it is and the buck really should stop with an elected minister, not an unelected civil servant.

When it comes to emergency ministerial authorisations for ASIO, ASIS, ASD and the AGO, this bill proposes that the relevant minister may have his emergency authorisation power exercised on his behalf by the head of one of those agencies in the event that he cannot be contacted or is unavailable. The traditional common law caution regarding authorisations where significant individual rights and liberties—in this case life, movement, association—would be affected is in play. To my mind, a regime where at least one relevant minister is always contactable should be instituted. Surely this is not beyond the organisational skills of the government. I am not alone in this view. Both the New South Wales Council for Civil Liberties and the Muslim Legal Network made similar observations in their submissions to the PJCIS.

The loosening of definitions in the previous two tranches of national security legislation when it comes to advocating terrorism, hostile acts in a foreign country and facilitation has been carried over into this bill. There is likely to be a serious chilling effect on speech, such that it may become even more difficult to establish who or what is a genuine threat to Australia and its people. The expanded grounds for the issuance of control orders not only abrogate the presumption of innocence but also introduce unwanted vagueness into the law, inviting misuse by future governments. Finally, where an emergency authorisation concerns a matter of life and death, as it almost certainly will, then the minister should exercise that authority personally. The convention of ministerial responsibility demands nothing less. I condemn this bill.

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

I begin by thanking the opposition for its bipartisan support for the important reforms in schedule 2 to the bill and for its recognition of the need to ensure that our intelligence agencies are supported by a legislative framework to act with agility in circumstances of urgency. The government will move amendments in the committee stage to implement the seven recommendations of the Parliamentary Joint Committee on Intelligence and Security which require legislative amendment.

I will deal with two matters raised in the contribution, on behalf the Greens, of Senator Wright. I am afraid, Senator Wright, that once again you misunderstand the purpose and effect of this bill. It has been suggested that the proposed amendments to confer an explicit capacity on ASIS to assist the ADF in support of military operations may enable ASIS to engage in or facilitate targeted killings of Australian persons overseas. That is, as the PJCIS recognises, a baseless assertion. The amendments will not confer any new functions upon ASIS. ASIS can and does support the ADF in its military operations already. The amendments will simply make this explicit. ASIS remains subject to a statutory prohibition on the use of violence, so given that ASIS is subject to a statutory prohibition on the use of violence, and given that these amendments do nothing to change this other than to put on a certain legislative basis what is the existing practice, it is a little hysterical, if I may say so, to suggest that the amendments will enable ASIS to kill people.

In addition, in making use of intelligence provided by ASIS, the ADF is bound by its rules of engagement, which are developed in consultation with the Office of International Law in my department to ensure that compliance with Australia's human rights and other international obligations is observed. So, Senator Wright, the ADF functions ethically, consistently with the laws of war, consistently with its rules of engagement and consistently with Australia's international obligations. ASIS has a prohibition on the use of violence. There is no possible way the assertion that you have made is supported or, indeed, consistent with or made possible by these amendments.

Senator Wright, you have also falsely suggested that the absence of an express prohibition on torture may mean that intelligence services and agencies, including ASIS, can engage in such conduct. As the PJCIS acknowledged in its report on the bill, there is no legal merit in that suggestion. No Australian intelligence agency—none—can or does or is at liberty to engage in torture. Were it to do so, if would be breaking the law. Nothing in this bill changes that position.

The statutory functions of our agencies cannot allow for torture. Intelligence agencies are expressly limited by sections 9, 12 and 14 of the Intelligence Services Act to activities that are necessary for the proper performance of their functions. Given that there is a prohibition on the use of violence by ASIS, there can be no sensible suggestion that conduct constituting torture could be necessary for the proper performance of its functions. Indeed, the use of violence is explicitly prohibited by our law. I know, Senator Wright, that you make these contributions in good faith, but I am afraid that in both respects you are completely wrong.

In closing the debate, I thank in particular the members of the Parliamentary Joint Committee on Intelligence and Security, who made an important contribution to this discussion that resulted in recommendations the government has been glad to accept—through the amendments that have now been circulated. As I said in relation to the previous tranche of this national security legislation, this is a very good example of our system of parliamentary democracy working well. The executive government develops legislation as a result of a parliamentary inquiry. It then submits that legislation to the scrutiny of a parliamentary committee. The parliamentary committee examines the legislation and comes up with its own ideas, as we would expect. The government considers those ideas and, where it thinks they are good ideas, it adopts them. What this illustrates is that we do not think that all wisdom resides in the executive government. We want the parliament, in particular through its committees, to be our interlocutors. They have been in this area and the outcome commands bipartisan support and the support of all sensible commentators in this field. It is only criticised, really, by those who take what is, if I may say so, a rather paranoid fantasist view of the national security apparatus of our country. As a result of the process I have described, we arrive at a sensible position with appropriate powers governed by appropriate safeguards.

While I have access to sensitive and classified intelligence reports that I am unable to share publicly, media reporting over recent days points to an increasingly concerning picture—and not just in Syria and Iraq. According to media reporting, as many as 48 Nigerian fishermen were ruthlessly slaughtered over the weekend by members of the Nigerian Islamist group Boko Haram. As I have said on numerous occasions, the first priority of government is to ensure the safety and security of its citizens. It is instructive that the two sides of politics that, from time to time, take on the great and burdensome responsibility of government in this country—the coalition and the Australian Labor Party—both contributed to the development of and support these measures.

Currently, Australia's domestic counter-terrorism legislation concentrates on those intent on committing acts of terrorism. Advice from law enforcement is that some Australians have taken on the roles of supporting and facilitating Australians either to engage in terrorism offences in Australia or to travel to conflict zones and return to Australia with capabilities acquired from fighting or training with proscribed terrorist groups. The threat to Australians posed by these individuals is as great as the risk posed by those engaging in terrorist acts or foreign incursions. This bill expands the preventive purposes of the control order regime to counter this threat so as to allow the Australian Federal Police to seek control orders in relation to a broader range of individuals of security concern—namely, those who support or facilitate terrorists and foreign fighters. There is an innate logic in saying that, if the control order regime ought to be available to deal with foreign fighters and those who engage in actual terrorism, then it should certainly also embrace those who facilitate those very acts.

The bill also amends the Intelligence Services Act—the act that deals with the national security agencies other than ASIO—to streamline procedural authorisation requirements. This will ensure that our agencies are as agile as they need to be in the contemporary security environment, particularly in emergencies.

Following my introduction of the bill on 29 October, I referred it, as I have said before, to the Parliamentary Joint Committee on Intelligence and Security, which is chaired by my colleague Mr Tehan, the member for Wannon. The committee made 16 recommendations in its advisory report, which was tabled on 20 November, involving mostly minor changes to enhance operational and administrative safeguards and oversight mechanisms. Most importantly, the final recommendation of the committee was that the bill should be passed. As I announced on 24 November—yesterday—the government accepts or accepts in principle all of those recommendations, and I will move amendments to the bill to implement 11 of them. It is important to bear in mind that not all the recommendations of the committee were recommendations for changes to the bill as initially published. In addition, when the bill is debated in the House, the government will table a revised explanatory memorandum that includes additional information further elaborating on the justification for various measures in the bill—in line with the committee's recommendation.

The bill will make targeted amendments to the Criminal Code to further enhance the control order regime, as I have said, so as to ensure that it extends to the facilitation offence. Placing control orders on individuals engaged in facilitation of terrorism will help the AFP disrupt the activities of enablers, thereby preventing acts of terrorism in Australia and hostile activities overseas. The bill also implements recommendation 8 of the PJCIS inquiry into a previous bill, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, by authorising the committee to review any proposed legislative instrument listing an alias or removing a former name of a terrorist organisation.

The PJCIS supported the need for amendments in the bill that, as I said a moment ago, would expand the control order regime to facilitators. These included: keeping the existing requirement for the AFP to provide an explanation to the issuing court of each of the requested restrictions, obligations and prohibitions; requiring the AFP to provide the Attorney with additional information when seeking his consent to request an issuing court to make an interim control order, including information about why the order should or should not be made; increasing the period of time before the AFP must seek the Attorney-General's consent after obtaining an urgent interim control order from four to eight hours, rather than 12 hours as initially proposed by the bill.

The government agrees with PJCIS recommendation 2 that the language of the bill should be consistent with the existing language of the Criminal Code. The Criminal Code uses some terms without defining them. To ensure greater explanation around the terms 'supports' and 'facilitates', the government will amend the explanatory memorandum to provide additional information about those terms, consistent with the language of the Criminal Code. The bill will make targeted amendments to the Intelligence Services Act to improve the ability of ASIS to provide timely support to the ADF in support of military operations and to streamline the statutory authorisation process to enable Intelligence Services Act agencies to collect intelligence on Australian persons overseas, in emergency circumstances—the Intelligence Services Act agencies being ASIS, the Australian Geospatial-Intelligence Organisation and the Australian Signals Directorate.

The need for the proposed amendments to the Intelligence Services Act has arisen in the context of the ADF's operations in Iraq against ISIL and the number of Australians who are fighting with or alongside terrorist organisations such as ISIL and participating in the hostilities in that theatre. As I noted in my second reading speech on the bill, these circumstances mean that there is a heightened need for urgent intelligence collection on such persons. While agencies have a legislative basis under the Intelligence Services Act on which to undertake all relevant intelligence and collection activities, the agencies have identified some procedural requirements which are not as streamlined as they need to be in circumstances of urgency or emergency. The bill proposes amendments, therefore, to clarify and streamline—without reducing safeguards—those procedural arrangements that enable Intelligence Services Act agencies to collect intelligence on Australian persons overseas, to enable them to operate effectively in circumstances of the kind I have outlined.

Importantly, the amendments do not expand the functions of the Intelligence Services Act agencies or confer any new powers that would enable agencies to engage in activities that they would currently be prohibited from undertaking. Rather, the bill is directed to improving procedural arrangements to ensure our agencies are as agile as they need to be in the contemporary security environment. The inclusion of an explicit function for ASIS concerning assistance to the ADF appropriately enhances the transparency of this role, rather than conferring a new function.

The PJCIS, in its advisory report, supported the need for all proposed amendments to address these issues. The PJCIS made nine recommendations in relation to the proposed reforms to the Intelligence Services Act, including recommendations for seven largely technical amendments to schedule 2 of the bill, primarily to improve ministerial control over relevant decisions made by agency heads in circumstances of emergency and to strengthen the oversight of the IGIS and the parliament over such decisions. As announced earlier today, the government has supported all of those recommendations. As I said before, I will move those amendments in the committee stage.

Of the PJCIS's two remaining recommendations on the Intelligence Services Act, one is directed to amending the explanatory memorandum of the bill to further explain the limitations on the ability of the foreign minister to authorise ASIS to undertake activities in relation to classes of Australian persons for the purpose of providing assistance to the ADF in support of a military operation. The government intends to include this detail in the revised explanatory memorandum.

I note that my department and relevant intelligence agencies gave extensive evidence to the committee on these matters, and the committee concluded that it was satisfied by the existing limitations provided for in the Intelligence Services Act and the bills introduced. Those submissions are on the public record. The committee also directed one of its recommendations to the Inspector-General of Intelligence and Security. It recommended that the IGIS pay close attention to one aspect of the amendments—that is, concerning the issuance of emergency authorisations via non-written means. While recognising that this is a matter for the IGIS, consistent with the statutory independence of that office, the government supports the principle that oral emergency ministerial authorisations should be subject to appropriate independent oversight by the IGIS. The bill has been prepared on the assumption that such rigorous oversight would, in any event, occur as a matter of practice. I note that a number of honourable senators have expressed their support for the implementation of the committee's recommendations. The government looks forward to working constructively with other senators when the amendments to the bill are considered in committee.

I conclude by once again thanking the opposition and those colleagues representing the overwhelming majority opinion of this chamber who recognise the need for these important reforms. The government is undertaking comprehensive reform of our national security to ensure that our counter-terrorism legislative framework is as effective as it can be and is targeted to the current national security threat. The bill will have a direct impact on the ability of our law enforcement and intelligence agencies to support our defence force in particular and to protect the Australian public. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.