Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

This motion amends the government's motion to appoint senators to the PJCIS and the Northern Australia committee in the terms circulated in the chamber. The Greens are calling for these nominations to the Parliamentary Joint Committee on Intelligence and Security to not to be approved because the current proposal fails to comply with the requirements of schedule 1 of the Intelligence Services Act 2001; namely, that nominations should not be considered or finalised until after the Senate is notified by the leader of the government that appropriate consultation has occurred, and that the committee membership reflects the representation of recognised political parties in the parliament.

At the last election a third of the population of Australia voted for someone other than the Labor and coalition parties. They elected a diverse parliament, including a record 16 Greens. It was a clear message that people are ready to move beyond a limited two-party system and towards a parliament whose decision-making reflects the diversities of the communities that we represent. Before nominating the members, the Leader of the Government in the Senate must—according to that schedule 'must'—consult with the leader of each recognised political party that is represented in the Senate and isn't currently in government. This has not happened. The Intelligence Services Act 2001 is clear that the Prime Minister must consult with the leader of each recognised political party—so not just the Leader of the Government in the Senate, but the Prime Minister must consult—that is represented in the House and does not form part of government. That has not happened either.

Instead of consultation, we've received a letter with the government's proposed nominations. It's simply a statement. It's not a consultation, and so it's not what the act requires. The act also requires:

In nominating the members, the Prime Minister and the Leader of the Government in the Senate must have regard to the desirability of ensuring that the composition of the Committee reflects the representation of recognised political parties in the Parliament.

A committee comprised entirely of Labor and coalition members clearly fails that requirement—that statutory requirement.

Mr Adam Bandt, Leader of the Greens, and I have written to the Prime Minister and to the leader in the Senate to alert them to this. We've proposed that Senator Shoebridge, who holds the relevant portfolios on behalf of our party, be included on the committee in compliance with the act. But this has been ignored. Not only have the Greens been ignored but the whole crossbench has been ignored. The PJCIS has long been a stitch-up by the two big parties without a single dissenting voice to the old party consensus, and we need that dissent because all too often complex national security legislation is presented to this parliament with a phone book of amendments coming out of the PJCIS, with little to no warning, and is often rammed through this place in a matter of hours. When we on the crossbench raise concerns with that or want to refer it to a Senate committee for scrutiny, we're refused because the bill's already been through the PJCIS. But we don't get to participate in that inquiry. We don't get to properly weigh the impact of these laws and the ramifications that they'll have—serious ramifications, in many cases, which often involve the curtailing of rights to procedural justice, rights to privacy and other very significant civil liberties. So, when it comes to protecting rights, when it comes to ensuring that we hold our security agencies accountable, when it comes to protecting the rule of law, it is critical that all voices in this parliament are able to fully participate in the process of deliberation on those laws.

But instead, the PJCIS, the closed shop of the Australian security state, the two-party stitch-up in this creeping surveillance state, makes all of these decisions without any dissenting voice or any third-party input. And that is not good for democracy. It is certainly not good for protecting human rights. It is not good for the parliament. It is not good for the people that we are put here to represent. For all of these reasons, we are moving this amendment, because we're sick of the two big parties thinking that you own committees like this, ones that make crucial decisions that impact on people's rights and daily lives. It's not good enough, and it's in breach of the act. So vote how you will, but this isn't over.

Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Link to this | Hansard source

The government opposes the amendment to the motion moved by Senator Waters, and I think we would disagree strongly with Senator Waters's presentation in her remarks that the government has not complied with relevant clauses of the Intelligence Services Act. The Leader of the Government in the Senate has consulted with all leaders of each recognised non-government political party in the Senate about the membership of the committee, as required by clause 14. It might not have been the consultation process that you were after, but we have met the requirements of the act. We have consulted as required by clause 14 of schedule 1.

Yesterday the Leader of the Government in the Senate sent correspondence to Senator Waters, as Leader of the Australian Greens in the Senate, in accordance with statutory requirements. The correspondence was also provided to the Leader of the Australian Greens, Mr Bandt. No response to that correspondence has been received from Senator Waters. The Leader of the Government in the Senate sent the same correspondence to other party leaders, including Senator Birmingham, Senator McKenzie, Senator Lambie, Senator Hanson and Senator Babet.

I can assure Senator Waters that extensive consideration was also given by the Prime Minister to the desirability of ensuring that the composition of the committee reflects the representation of recognised political parties in the parliament. I table the correspondence sent by Senator Wong to Senator Waters.

Simon Birmingham (SA, Liberal Party, Shadow Minister for Foreign Affairs) Share this | Link to this | Hansard source

I don't wish to detain the Senate, as the appointment of members to this committee should be a relatively straightforward process. I think Senator Gallagher has just outlined the government's actions in relation to compliance with the provisions and requirements in relation to appointments to this committee. This committee is unique in relation to the functions it fills and the way in which appointments processes are undertaken with the stewardship of the Prime Minister and the government in that regard. The opposition respects the processes that have been put in place in that regard in terms of ensuring that this committee is composed in a way which can enable it to fulfil the very sensitive undertakings that it is tasked with. The opposition also respects the process that the government has applied and the conventions attached to that process. It therefore does not support the amendment proposed by the Greens and would urge the Senate to proceed to ensure that this important committee can get on with the work that it is tasked with doing. I thank the Senate.

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

It's not a good start for a new government to directly flout the law in relation to one of the key committees that it seeks to establish in the life of a new parliament that has, if I might remind members of this chamber, about one in four senators from the crossbench, who are totally excluded from this committee. About 15 per cent of the other place is on the crossbench and is totally excluded from this committee. As Senator Waters said, one in three Australians voted for non-government and non-coalition representatives in this parliament, and then this government and the opposition—Labor and the coalition—have this old-boys club stitch-up to start the new parliament. That's not the parliament that Australia voted for.

Limiting the membership of this committee to just the Labor and Liberal parties is more than the closed-shop politics as usual we saw under the Morrison government. It's remarkable, though, because the law requires full consultation, in clause 14 of schedule 1 of the Intelligence Services Act:

In nominating the members, the Prime Minister and the Leader of the Government in the Senate must have regard to the desirability of ensuring that the composition of the Committee reflects the representation of recognised political parties in the Parliament.

That's what the law says, and you have directly flouted the law. We hear these mealy-mouthed comments from the opposition, seemingly okay with the government breaching the law. We have this nonsense proposition from the government that they have consulted. The problem with not consulting is that it is mandatory. You can't choose to consult or not consult, because the law requires you to consult. In relation to the Senate, it says:

Before nominating the members, the Leader of the Government in the Senate must consult with the Leader of each recognised political party that is represented in the Senate and does not form part of the Government.

The Greens put you on notice of your legal obligations to do this, in correspondence co-singed by the Leader of the Greens in the Senate, Senator Waters; by Mr Adam Bandt, the Leader of the Greens in the parliament; and by me. We sent you that correspondence, trying to be helpful, on 26 July 2022. We said, 'These are your legal obligations.' We tried to be helpful. We didn't want you to be breaching the law. We were worried that you were just going to do the usual old boy's club thing and exclude the crossbench. We were trying to be helpful and trying to tell you what you had to do, but you just ignored it.

The offence isn't ignoring the correspondence we sent; the offence is ignoring the law and acting unlawfully in setting the membership for one of the key security and intelligence committees in parliament—acting unlawfully in establishing the committee membership of a core legal oversight committee. There's a deep irony in what the government has done here. And the opposition signed on meekly. They just want to keep the club going, so that when they get into government they can hand out the bounty just between the two parties. You think the rest of the country thinks this is acceptable, but it's not.

Then we get the specious argument from the government that they have consulted--because they sent a letter. Let's read the letter and work out if anybody in the world, apart from Senator Gallagher, thinks this is consultation. This is what it says: 'Dear Senator Waters, re appointment of members of the Parliamentary Joint Committee on Intelligence and Security. In accordance with clause 14 of schedule 1 to the Intelligence Services Act 2001, I advise that I intend to nominate the following senators to be members of the Parliamentary Joint Committee on Intelligence and Security: Senator the Hon. Simon Birmingham'—he has an interest in this—'Senator Raff Ciccone, Senator James Paterson, Senator Marielle Smith, Senator Jess Walsh'. If that's consultation, there's a lovely little bridge in Sydney that I'd like to sell you.

This is nonsense. It's unlawful. It's a stitch up. It's the worst of the kind of politics that the electorate rejected just 108 days ago. This is an unlawful stitch up. I have to say, it may not end here in the Senate. You can't just choose which laws you comply with and which laws you don't. There's nothing super special about being a senator that says you can act contrary to the laws. This isn't just the Senate committee established under rules of this place. This is a statutory joint committee established under laws passed by both houses of parliament and signed off by his nibs the Governor-General. This is the law which you are directly breaching. You think it might end here. Well, it may not end here. This is not going to go away. You can't start a new government by flouting the law and signing on to the old boy's club and think we're just going to take it. We won't.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

I just want to observe that this is a continuing pattern from this new government. Let's be really clear with the public as to what is happening here tonight. The government and opposition have come into this place—as Senator Shoebridge has clearly outlined for the chamber—with flagrant disregard of their obligations, legally, under the relevant parliamentary pieces of legislation, as to the composition of one of the most important bodies within the parliament: the oversight committee which provides recommendations to the parliament in relation to, particularly, security legislation. It is an incredibly influential committee in this place, because of the way in which the major parties operate a closed shop between the two of them on matters of so-called national security.

When it was my privilege to have the portfolio for the Greens of IT and digital rights, I witnessed firsthand the ways in which the recommendations of this committee are manipulated and utilised to close down the debate of this place in relation to legislation impacting on the privacy of Australian citizens. I lost count of the number of times, in my role as the digital rights spokesperson for the Australian Greens—whether it be metadata retention or whether it be backdoors into encrypted messaging applications—I would ask question after question on behalf of some of the most intelligent and engaged stakeholders in our community as to the blatant technical flaws within pieces of government legislation, opening the Australian public up to heinous violations of their privacy, and the answer from the government and the opposition was, 'That was addressed during the PJCIS inquiry, and the recommendation addresses it.' Can I see the minutes? Can I see the content? Was I able to be part of the deliberation? 'No. Just trust us; we had a chat about it. Accept the recommendation to pass the legislation, sit down and shut up.' It is one of the key mechanisms of this closed shop operation, which is not just in relation to this security committee, by the way. In the last sitting of the parliament, the very first time we came together since the election, the first vote this Senate took was to ensure there was no ability for the Greens to chair the Joint Standing Committee on the National Disability Insurance Scheme, to maintain the closed shop there too.

Here's the reality that everybody watching at home understands about Australian politics—both sides, Liberal and Labor; and let's not forget the Nats too, those great country cosplayers who come into this place pretending to represent the voices and the needs of rural and remote Australians. The deal is this: whichever side wins the election, there are a certain number of gifts and rewards that each side are able to hand out to the factional players, the people that were able to get the donations, the people that want to advance their careers, within the internal mechanisms of the parliament and of the party. There are a second set of rules that operate together at the same set of times, particularly in the Senate, which is, let us remind the entire place once again, the house of review, created manifestly to review legislation on behalf of the community. This place has within its power the ability to properly scrutinise many pieces of legislation, demand the attendance of ministers and act as a true check and balance upon the executive of the government of Australia, yet again and again the ability of this Senate to play that oversight role is given up because on key questions of integrity and oversight the Senate leaders of both sides get together and say, 'It's been a longstanding practice of the so-called parties of government in this place that we shall observe this convention, meaning that there is no need for us to depart from the previously established process. That would be to upend convention. It would be to let anarchy reign. Scrutiny may break out in the halls. Accountability—nay, responsibility—may become part of our culture. We can't have that. Sunshine might come in from the roof, and we would burst into flames.' So they maintain the closed shop and the shadow of this place.

Quite seriously, in these times there is so much in our political debate that is silenced based on two words, national security. It is so easy to shut down a debate in this nation, in this political system, by mentioning the words 'national security'. So much is able to be swept under the rug and out of the way. Now more than ever alternative perspectives are urgently needed to scrutinise legislation in relation to national security policy, particularly in the context that one in three people who voted at this election voted for a party which was not the Liberal, Labor or National parties. You people are not trusted by growing and greater and ever greater portions of the Australian public for very good reason, particularly because of the decisions you make in relation to national security, whether it is the exorbitant expenditures on defence programs such as the submarines, such as the frigates, such as the various pieces of military capacity which are purchased without any thought of value for money to the public or what we might otherwise do with those funds; or whether, indeed, it is the pieces of national security legislation which are rammed through this place, making Australia one of the weakest nations in the world in relation to its human rights structures and in relation particularly to the digital rights protections that are available to its citizenry.

We will only have the capacity to understand exactly what is being done, and the public will only have the ability to access the information that they need to make informed decisions in relation to national security and security policy, when parties that are not part of this closed shop are able to access the information available to members of committees such as the PJCIS. I commend the amendments put forward to the Senate by Senator Waters, our Senate leader. Senator Shoebridge would do a fantastic job in that role. It is exactly the type of independent oversight offered by the addition of crossbench members to such committees which is so urgently needed to inform properly these debates.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question before the chair is that the amendment to the motion to appoint senators to committees moved by Senator Waters be agreed to.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

I now intend to put the original motion, moved by Senator Ayres, that senators be appointed to committees, as set out in the document available in the chamber and listed on the Dynamic Red.