Anne McEwen (SA, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

I table an explanatory memorandum and I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

At the outset, it is appropriate to acknowledge the contribution of former senator John Faulkner to the creation of this Bill, which represents an example of his longstanding efforts in protecting the role of the Parliament in the oversight of intelligence and security agencies.

Of all the responsibilities of the Australian Parliament, none is more important than ensuring the security of our nation and its people.

Today we confront emerging and serious threats to our national security.

The Australian Parliament's responsibility is clear.

It must ensure our intelligence and security agencies have the necessary powers and resources to protect Australian citizens and Australian interests. However, these powers can impinge on the values and freedoms on which our democracy is founded – values and freedoms which Australian citizens rightly expect Parliament to protect.

So Parliament must strike a balance between our security imperatives and our liberties and freedoms.

Key to achieving this balance is strong and effective accountability. Enhanced powers demand enhanced safeguards. Public trust and confidence in our security and intelligence agencies can only be assured through strong and rigorous oversight and scrutiny.

Since 11 September 2001, new threats to Australia's national security have emerged with Australians targeted by terrorist organisations at home and abroad.

Close to home, the threat of terror became a shocking reality with the 2002 and 2005 Bali bombings, the 2004 bombing of the Australian Embassy in Jakarta, the 2009 Holsworthy Barracks terror plot, and other planned attacks on Australian soil, prevented by authorities.

On 12 September 2014, based on advice from agencies, the Australian Government moved the Australian terror-alert level from Medium to High for the first time.

Over the thirteen years since the 11 September 2001 attacks, the Australian Parliament has debated and enacted 65 pieces of anti-terror legislation.

With the exception of the first ASIO Bill, which was laid aside in December 2002, there has been a high level of cooperation in the Parliament to secure bipartisan agreement on national security legislation.

The ASIO Bill as presented in 2002 would have given ASIO extraordinary powers with inadequate safeguards.

The Parliamentary Joint Committee on ASIO, ASIS and DSD (the PJC) considered the ASIO Bill 2002 and provided a unanimous and scathing Advisory Report on 5 June 2002. In the report, the Chairman of the PJC (the Hon. David Jull) noted:

The Bill is one of the most controversial pieces of legislation considered by the Parliament in recent times... The committee has been confronted with the challenging task of balancing the proposals in the Bill with the need to ensure that the civil liberties and rights under the law that Australia provides as a modern democracy are not compromised. The Bill, in its original form, would undermine key legal rights and erode the civil liberties that make Australia a leading democracy. 1

These differences, between not only the government and opposition but also the cabinet and the government's own backbenchers, were the exception to the rule, and indeed an amended Bill was passed in 2003, providing ASIO with substantial new powers but with enhanced safeguards.

Parliament determined an appropriate balance.

Agencies are again seeking additional powers to meet the current enhanced threat of terrorism. If security powers are to be extended, scrutiny and oversight must again keep pace.

In recent years, Australia has benefited from professional and well run intelligence and security agencies; respecting the parliament, the government of the day and our laws. But effective safeguards against the abuse of security powers cannot depend on the personal integrity and quality of the leaders of our agencies. It is the responsibility of Parliament to prescribe safeguards that keep pace with the expansion of security powers.

The purpose of the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015 is to ensure that the adequacy and effectiveness of Parliamentary oversight of intelligence and security agencies keeps pace with the agencies' enhanced powers. This Bill amends the Intelligence Services Act 2001, the Independent National Security Legislation Monitor Act 2010 and the Inspector-General of Intelligence and Security Act 1986 to change the membership, powers and functions of the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

In Australia, as in many other similar democracies, the powers of intelligence and security agencies have changed dramatically in recent years - the product of an increasingly complex and unpredictable security landscape. The maintenance of public security in the current security environment does require enhanced powers for the agencies charged with this responsibility. However, the protection of our hard-won democratic freedoms equally demands enhanced oversight of the exercise of these powers. With legislative change extending the powers of security agencies, the requirement for reliable, effective external oversight arguably becomes more critical to maintaining an essential level of trust in the community about agency operations.

It is the parliament to which the agencies are accountable, and it is the parliament's responsibility to provide oversight of their priorities and effectiveness, and to ensure agencies meet the requirements and standards it sets. There is no greater or more important focus of political activity in this country than Parliament itself, and the Australian Parliament has no better or more authoritative forum than the PJCIS to do this job.

This Bill removes current constraints on the membership of the PJCIS to provide that except for a minimum representation of one Government Member and Senator and one Opposition Member and Senator the balance of the 11 member PJCIS can be drawn from either chamber.

Currently, the Intelligence Services Act 2001 mandates a composition of six House of Representatives Members and five Senators on the PJCIS.

Removing the current constraints will enable greater flexibility in determining PJCIS membership.

The Bill does not amend the requirement for the Government to hold a majority.

The Bill also:

In Australia, as in many other similar democracies, the powers of intelligence and security agencies have changed dramatically in recent years - the product of an increasingly complex and unpredictable security landscape.

The maintenance of public security in the current security environment does require enhanced powers for the agencies charged with this responsibility. However, the protection of our hard-won democratic freedoms equally demands enhanced oversight of the exercise of these powers.

With legislative change extending the powers of security agencies, the requirement for reliable, effective external oversight arguably becomes more critical to maintaining an essential level of trust in the community about agency operations.

The greater the potential for that power to infringe on individual liberties, the greater the need for accountability in the exercise of that power. This is not to suggest that our security and intelligence agencies are acting perniciously or misusing their powers. I do not believe that to be the case. But in the relatively recent past those powers were used inappropriately, with a consequent erosion of public trust, and we must be conscious that enhancements we agree to now may lend themselves to future misuse in the absence of appropriate and effective accountability mechanisms.

Of course, ultimately the constitutional duty to control executive conduct as to its lawfulness lies with the High Court of Australia. This is a fundamental but only partial aspect of the oversight of intelligence agencies. Australians need continuing assurance of much more than simply the absence of illegality. They need to be assured the agencies are serving the purpose for which they were created and that they are doing so in a cost effective way.

It is the parliament to which the agencies are accountable, not the judiciary, and it is the parliament's responsibility to oversight their priorities and effectiveness, and to ensure agencies meet the requirements and standards it sets.

There is no greater or more important focus of political activity in this country than parliament itself, and the Australian Parliament has no better or more authoritative forum than the PJCIS to do this job.

The Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015 will enable the PJCIS to undertake its responsibilities and fulfil its critically important role more effectively.

I commend the Bill to the Senate.

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1 An Advisory Report on the Australian Security Intelligence Organisation Amendment (Terrorism) Bill 2002, Chairman's Foreword, 5 June 2002, p.vii.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.