James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

I rise to speak on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023. Regrettably, the coalition is not in a position to support this bill as it is currently drafted. While the majority of the amendments proposed under the bill are sensible reforms, most of which flow from the Richardson review, which the previous government commissioned back in 2018, this government has unfortunately decided to play games with this legislation by adding an additional amendment to change the composition and the size of the Parliamentary Joint Committee on Intelligence and Security without consulting anyone. They are now trying to rush this change through, hoping that no-one will notice.

The bill proposes amendments to enhance the legislative framework of the national intelligence community by implementing a number of the recommendations of the Richardson review. It proposes amendments to 13 related Commonwealth acts to support these proposed enhancements. The bill also proposes to amend the Intelligence Services Act to clarify the level of detail required to describe activities issued under a ministerial direction to ASIS. This particular change to the legislation was not a recommendation of the Richardson review, but I have been briefed through the PJCIS on the need for this change, and it is an important and timely change that goes to the operation of an important and sensitive capability of the Commonwealth and its relationship with the foreign minister. We do support this change. Of course, the opposition always supports sensible changes to support the work of our intelligence agencies, which is why we agreed to all of the relevant recommendations in our government's response to the Richardson review back in December 2020.

The only point of contention between the government and the opposition is the proposal in this bill to increase the size of the Parliamentary Joint Committee on Intelligence and Security from 11 to 13 members and also to change the required composition from each chamber of parliament. Currently, the act requires that six members come from the House of Representatives and five come from the Senate. The bill proposes to allow the government of the day much more flexibility in deciding the balance between the two chambers.

We were not consulted on these changes before they were introduced, which is contrary to the bipartisan spirit in which legislation around this committee has normally been engaged with. I submitted a question on notice to the Attorney-General's Department to clarify who may have been consulted on this change and when. In response, the department disclosed:

The Attorney-General's Department did not consult with or advise non-government parliamentarians on the proposed changes to the membership and composition of the Committee.

This measure was a recommendation of Government.

Of course, it had to be a recommendation of the government, because it wasn't a recommendation of anyone else. It wasn't recommended by Dennis Richardson. It wasn't recommended by the Independent Intelligence Review of 2017. It's never been recommended by the PJCIS. I'm not even aware of a single submission to the PJCIS, in its history, which has ever recommended this change. In fact, the only place that this change has ever been recommended from, as far as I can tell, is either the Attorney-General's office or the Prime Minister's office—nowhere else.

Labor is now trying to rush through what is actually quite a significant reform to the operation of one of the most important committees of the parliament. The PJCIS was, remarkably, only given one month to consider this bill and conduct an inquiry, and, shamefully, it only opened submissions for one week. In my service on this committee in this parliament and the previous one, I'm not aware of any other occasion where submissions were open for only a week for an important bill that goes to the operation of this committee and the intelligence legislation which governs our national intelligence community.

In fact, I do remember distinctly that, in the previous parliament, when I was chair of the committee, when relatively short periods of opening for submissions were contemplated, the then shadow Attorney-General, Mr Dreyfus, was the loudest to object to rushing any legislation through the committee or to any short period of consultation or seeking submissions. As chair, I agreed with him and from time to time, when necessary, requested, sought and received from the government of the day extra time to consider these bills and provided extra time for witnesses to make submissions. To rush this through in one week is a totally unreasonable imposition on the people who seek to assist the committees of the parliament with their work and was a particularly underhanded tactic in the handling of this bill.

There has been no evidence provided to the committee, the parliament or the public as to why this change is required, and it is incumbent on the government in this debate in the chamber to explain where it came from. Does the government intend to appoint a crossbench member of the Parliamentary Joint Committee on Intelligence and Security or a member of a minor party as part of its decision to increase the size of the membership from 11 to 13? I have it on good authority and I have good reason to believe that that is exactly what they intend to do, although they have failed to be upfront with the parliament or public about that intention. In my view that would significantly and detrimentally change the character and culture of the committee, which has otherwise always been, save for one exception, a committee of the parties of government. That is a very important distinction, and I will come to why that is the case in a moment. I really do think if a crossbench or minor party member were added to the committee that would risk undermining the bipartisan consensus on critical national security issues that the committee has dealt with and has long been a feature of the PJCIS.

When I chaired the PJCIS in the previous parliament, it was one of the busiest and most intense periods in the committee's history. In fact, in roughly a 12-month period the committee handed down 23 reports and inquiries. Every single one of those reports was bipartisan. Every single one of those reports was unanimous. That's not because we started those inquiries from a place of universal agreement, that's not because there weren't genuine philosophical differences that arose during an inquiry, but it was because the committee had a spirit, a culture and a willingness to work through those difficult issues to achieve consensus in the national interest. And we were only able to do so because of the trusted culture and environment that has been fostered in that committee.

It is often widely remarked upon outside of this place, by people who deal with this committee or observe its work, that it is one of the most functional committees of the parliament, perhaps one of the last functional committees of parliament. They say that it is not like other committees, which are often defined by bipartisanship and rancour. They say that members of the committee work constructively and well together in the national interest. We should pause and reflect on why that is the case. It's also the only committee which has always been, with one exception, comprised of members of the government and the opposition only. Those are parties of government, and that is an essential feature which has allowed it to be a secure and trusted negotiating forum for those parties of government to resolve, away from sometimes the theatre of this place and away from the media, important national security matters in the national interest and get the balance right when it comes to the very important national security and civil liberty matters which we consider.

The addition of two member to the PJCIS, in my view but not just my view, also increases the risk of classified material being leaked, either intentionally or inadvertently. In fact, a no lesser authority on this issue than the Director-General of ASIO stated this in his evidence to the PJCIS. He noted that, all else being equal, a greater number of people having access to sensitive classified information increases the risk of material being leaked. This in turn could undermine the trust that the committee has earnt with the intelligence community, who would then be obviously far more reticent to disclose sensitive information that is critical for the robust consideration of issues by this committee.

The truth and the art of the PJCIS are that the intelligence agencies, in my observations particularly while I've been a member, have often disclosed more and shared more with the committee and members of the committee than they are required to share under the letter of the law. The reason they do that is that they want us to be informed about the decisions we have to make in the national interest. But they are not required to do so. If ever they are concerned about the ability of the committee to keep its deliberations confidential and the classified material that we receive confidential, they can retreat back to the letter of the law and seriously curtail the amount of information provided to the committee, which would fundamentally undermine the committee's operation.

I was recently read an interview for a profile of a former colleague in this place, former senator Keneally. She was reflecting on her time in the parliament, and I was struck by her observation that one of the most enjoyable things she did in the parliament was serve on the PJCIS. She described how bipartisan it was, how constructive it was and how well the committee members worked together. I think she is right, and it is an observation that many other former members of the committee have made. Former deputy chair of the committee Anthony Byrne has spoken about this. Another former deputy chair, Senator McAllister, has also spoken about this, and I enjoyed working with both of them. I even, I must confess—and I'm hoping not to damage my reputation or his—occasionally enjoyed working with the former shadow Attorney-General, and now Attorney-General, on this committee. In fact, we spent many, many hours negotiating in a painstaking way to achieve consensus on these issues. I did my best as chair to give the Labor Party when in opposition the space and the time they needed to arrive at a position that allowed the committee to achieve consensus, and I pushed back on the government and ministers whose party I shared when it was necessary to achieve that.

One of the reports that we handed down in the previous parliament that was unanimous and bipartisan, like all others, was the annual report on committee activities in 2021. One of the recommendations of that report was that after the election—that is, in this new parliament, the 47th Parliament—at the commencement of the parliament whoever was in government should refer to the committee an inquiry into the provisions of the Intelligence Services Act that govern the operation of the committee so that the committee could inquire into, receive submissions on and consider the scope and activities of the committee in its remit. That was a unanimous recommendation of the committee. It was signed by the then shadow Attorney-General, Mr Dreyfus, now the Attorney-General. He has broken with that recommendation of the committee which he himself helped author in the way in which he has handled this issue. These changes have been proposed in a unilateral way. No inquiry has been referred to the committee to consider these issues. No consultation occurred on this. That is a gravely disappointing thing.

I also note that the government has some other bills that propose changes to the operation of the committee which have been introduced to the parliament—in particular, the Intelligence Services Legislation Amendment Bill 2023. It was introduced in the House of Representatives on 22 June and is now before the PJCIS for an inquiry. Among other things, this bill proposes to expand the powers of the PJCIS and broaden its oversight of the national intelligence community. In isolation, I think there is some merit to some of the proposals in that bill. I think the opposition would be willing to negotiate with the government on some of those provisions to try to achieve consensus. In fact, some of those areas of broader and deeper oversight that the bill proposes I have previously recommended as chair of the PJCIS. However, I made that recommendation, and the committee agreed to that recommendation, only in the belief that the committee would continue to be a committee of the parties of government, not that it would be a committee in the future that had members of the crossbench or minor parties on it. Our support for that expanded or deepened oversight is conditional, and must be conditional, on the composition of the committee remaining the same as it is today. It would be a great regret for me if we are not able to have those negotiations in a good-faith way with the government. The now shadow Attorney-General, Senator Cash, and I have written to the Minister for Home Affairs and the Attorney-General to indicate our willingness to negotiate on those matters. We remain willing to do so. I hope before this chamber concludes consideration of this bill we are able to do so because, if we are not, it is going to be very difficult for the opposition to support either this bill or the other.

I am concerned that the primary motivation and driver for the changes proposed to this committee is in fact internal politics within the government. We know that the last committee established in this parliament was the PJCIS, arguably the most important committee in the parliament. The media has reported that the reason why that was the case is that the government had great difficulty determining the membership of the committee. They had great difficulty balancing competing factional demands and competing demands between the houses of parliament, between the House and the Senate. So they are increasing the membership to compensate a member of their caucus who missed out on membership of the committee after the last election and to give them more flexibility in the future about who they can appoint from their own caucus to the committee but also, notably, give them the opportunity, if they choose to take it, to appoint someone from the crossbench or the minor parties. That is not the way that a committee like this should be treated. This is not just any other committee of the parliament and shouldn't be treated that way.

Finally, I will just foreshadow that, if we are not able to reach agreement with the government on this bill and the other, the opposition will be moving amendments to this bill that seek to remove the changes to the PJCIS membership from this bill so that the other important provisions of this bill can pass, can be enacted and can be changed.

I have one final appeal to the crossbench. I know it will be intuitively appealing to you to support this bill because you will think, 'Great, this is our opportunity to get on the PJCIS,' but my warning to you is that, if you have not already had a call from the Prime Minister telling you that you or one of your party members is going to be on the committee, it's not going to be you because the person who is going to be joining the committee already knows that they are joining the committee. So please don't vote for this bill in the expectation that it will be to your benefit. I assure you that it will not.

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

I rise on behalf of the Greens to speak to the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023. This bill has both positives and negatives. There are elements of the bill that take oversight of national security agencies forward, and there are elements of the bill that take it backwards. The bill does a number of things, but I'd say at the outset that national security laws and outcomes should not be part of a quiet gentlemen's club deal between what has been described in the earlier contribution today as 'parties of government'. I've had a look at the Constitution. 'Parties of government' doesn't feature. It's a made up club. The concept of this political duopoly having absolute hegemony, regardless of who the Australian people elected into this parliament, is deeply undemocratic and has no founding in our Constitution or, indeed, in the theory of Westminster government—absolutely none. It's a statement that the parliament as elected by the people shouldn't have the power the people have granted it. It's a statement that, outside of the formal structures of parliament, there should be a quiet side deal between what might be described as parties of government but what other people might call 'the war parties'. They can have their own separate private arrangement regardless of what the Constitution or the result at a federal election provides.

It is interesting to hear it put in such bold terms by the opposition. The intellectual underpinning of it seems to be that they're comfortable with each other. They know the members of the club, and they are comfortable with each other—and that that comfortable arrangement somehow benefits Australia's national security interest. I would suggest any review of defence expenditure, defence outcomes or procurement outcomes over the last two decades would suggest that that comfortable club has not been working very well. We spent $5 billion plus on a series of iterations about submarines that the club told us were a great idea. It was uncritically supported. That club came together and said, 'We desperately need to get some French submarines, and they're the only submarines that will possibly keep us safe.' They agreed. There was a series of unanimous reports from the committee. We ended up spending more than $5 billion and wasting a decade, and how many subs did we get for that? None. We now are facing the cost of billions more retrofitting the Collins class submarines because of a wasted decade from the club.

It's the same club that has allowed the Department of Defence to breach procurement rules, to breach legal requirements and to enter into what will be now a $45 billion contract—it was originally going to be a $30 billion contract—for Hunter class antisubmarine vessels that, at every time, key parts of the Department of Defence and the defence establishment said were an extreme risk of not being fit for purpose. That's what the club has produced. How many of those have we got in the water? None. Why? That's because, at each point, if you'd critically listened and analysed the evidence, you would have realised that key people in the Department of Defence who were silenced by the current and former secretary had said this project was an extreme risk, that it won't get in the water, that it may not do what we think, that it is untried and untested and that we shouldn't be dropping $30 billion to $45 billion on an untested, experimental design that we probably can't build. What did the club do? The club asked no hard questions. It didn't query the secretary—current or former—about it. It signed off on it. How many of those do we have in the water? We have the exact same number of Hunter class frigates in the water as we do French submarines in the water.

This club has had a discussion about recruitment in the ADF for the last ten years. How has that gone—the uncritical discussion about recruitment and the signing off on the ADF's recruitment plans? For the last decade they've been saying they're going to grow the ADF by 30 or 35 per cent. There are less people in the ADF today than there were a decade ago.

How's the club going? This is the club that says there is an urgent security risk to the country and that our window of threat has moved from 10 years to five years or perhaps even less. What is the primary solution that the club has come up with to that urgent, imminent threat? They think that they might—subject to the US Congress, which doesn't seem to be keen on it—maybe get a second-hand US nuclear sub and prop it into the water at 2030. Fingers crossed! And that is a maybe—if the US Senate agrees to it, and at the moment that's looking pretty wobbly. So, according to their rhetoric, we have an imminent threat, and the club's response is to put one nuclear submarine in the water in 2030. How does that work? That only works if you have uncritical examination of the theory about fear and the theory about imminent threat, and then the irrational responses—the counterproductive responses and the extraordinarily wasteful responses—that we get from the club. There is probably a reason that 'parties of government' is not found in the Constitution; it's because it does not work. It's an undemocratic, uncritical club that, as the opposition said, never produces a dissenting voice. Every report, bar one that they can think of, has been unanimous. That is not a sign of a functioning, robust democracy; it's a worrying sign of a dysfunctional, uncritical club that is making Australia no safer.

National security laws and outcomes should not be done as a gentleman's agreement and should not be part of a quiet, smoke filled club; they should be the subject of robust consideration. Too much work in this space is done secretly. It does not benefit from the scrutiny of the media and it does not benefit from the scrutiny of the parliament, and it is absolutely kept from the people of Australia.

Some positive measures in this bill, though, do take a step forward. They remove the ability of the Attorney-General to delegate powers and, particularly in relation to the ASIO Act, restrict the ability of the Attorney-General to delegate those powers to officials within the department. This bill also aims to amend the Intelligence Services Act to provide that the PJCIS has an expanded membership of 13 members. I think what deeply troubles the opposition is that, with the expansion, there is a threat that there might be a member of the crossbench—almost certainly a member of the crossbench from the other place, but there might be a member of the crossbench—

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

It won't be you, David!

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

I note the interjection, but I think that might be a bridge too far! The fear is that there will be a member of the crossbench. Somebody who is not in the club might get an entry, might get an invite and might see how it works and turn a critical eye on it. Worse still, they might—there is a possibility!—produce a dissenting report and say that the club's quiet little arrangement and their proposals are not in the national interest. Imagine that! Imagine if there were a voice of dissent on the committee. The fear of the opposition is that somehow that voice of dissent, that critical discussion, is going to see the roof collapse and, worse still, it is going to see the security agencies refuse to tell the parliament—the parliament's own secret committee—what is going on. We're literally seeing elected members of the opposition in the Senate worried about the security agencies unilaterally turning the tap off to the oversight committee if, heaven help us, a member of the crossbench is admitted.

Is there such a supine view of the parliament, as against the intelligence agencies, that the opposition seriously thinks they would allow that to happen? Is it the view that if the intelligence agencies just unilaterally of themselves decide to turn the tap off to this committee the parliament will just say, 'Oh well, that's what the security agencies are doing.' Who's running the country? Who's actually making the decisions here? And the comfort with which the opposition put that proposition to the chamber, that the intelligence agencies can just unilaterally shut down the information flow to the parliament and there's nothing they can do about it—you would have thought that anyone who respects their position as a senator, as an elected rep of the parliament would be embarrassed to put that proposition forward. They would feel like they had no agency in this space. They would feel like they had literally handed over the strategic direction of the country to a bunch of unelected members of the security agencies. You would almost think that was the case, wouldn't you? You'd almost think that's true.

The bill also amends the Inspector-General of Intelligence and Security Act to require the Inspector-General of Intelligence and Security to report annually on public interest disclosures received by and complaints made to the Inspector-General. We think that's good. As we said, it's a positive step forward.

I've mentioned the changes to the PJCIS, but there are some negative changes in the bill, and they trouble us. Changes of concern include an expansion to the exclusions in the spent convictions scheme that will enable ASIO to use, record and disclose information about spent convictions. This was raised as a concern by the human rights committee inquiry into the bill, and we share those concerns. Spent convictions should be spent convictions. There should be some point at which ASIO can stop monstering you on the basis of a spent conviction.

The bill also reduces oversight by excluding ASIS, the Australian Geospatial-Intelligence Organisation, the Australian Signals Directorate, the Office of National Intelligence and the Defence Intelligence Organisation from the Commonwealth Ombudsman's jurisdiction. We don't support that. We're deeply troubled by it, and we will likely be seeking amendments to address that. We know that we now have the NACC that picks up a small amount, potentially, of this work, but we can't see a valid argument to exclude the ombudsman from that important oversight work.

We also have some concerns about proposed changes to the AAT Act and the Archives Act, which will require all proceedings in relation to security records under the Archives Act to be heard in the security division of the AAT. We don't think that further secrecy and less oversight in this space is a positive thing. The bill also expands exemptions for IGIS under the FOI Act and Archives Act to mean they only need to provide evidence in proceedings under those acts where the material in the proceedings relates to one or more of the agencies that the IGIS oversees. Again, we see no reason to restrict the information.

From my party's perspective, the Greens perspective, this bill does some good and it does some bad. It takes us forward in some elements of oversight, maybe a little crack in the parties of government, or the parties of war, control of the PJCIS. But then it takes us backwards in other important parts of oversight. It's interesting, isn't it? That's often Labor legislation, isn't it? One step forward, one step back, but you can't clearly define the purpose.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I rise to speak on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023. The first duty of any government is to keep Australians safe, and there are few things in this place that the coalition holds to be more important than national security. As a nation, our security is the bedrock in which our prosperity, industry and freedoms are built, but that security must be a form of security that is appropriate for our parliamentary tradition and our system of government. It is with a heavy heart that I find myself informing the Senate, as has Senator Paterson, that this bill is not in a form that the coalition can pass.

We are a proud democracy. The stability and strength of our system is a matter of tremendous national pride, and because we are a democratic system, from time to time our government will change. But the threats to the safety of Australians do not change just because the government does. We therefore need a consistent approach to national security that will keep Australians safe no matter who is in power. We recognise this fact. The coalition wants a system of national security that will persevere in keeping Australians safe regardless of the side of the chamber on which we sit. A commitment to bipartisanship by the parties of government lifts national security above party politics. It is in Australia's interests, and that is why for years now we have maintained a commitment to a bipartisan approach on national security issues, and that commitment is given effect through bodies like the Parliamentary Joint Committee on Intelligence and Security.

It's worth dwelling for a moment on this committee, because this committee is the forum by which much of the consensus on national security in Australia is derived. It is actually quite extraordinary because, unlike most committees, whether in the Senate, the other place or joint, it was established by legislation. The committee has historical roots in the Australian Security Intelligence Organisation Act, the ASIO Act, going back to the 1980s, but did not really take its modern form until 2001, when it was reconstituted by the Intelligence Services Act, passed under John Howard's leadership.

It is one of the quirks of history that the Intelligence Services Bill was introduced in June 2001 but was not debated and passed by the House until late September of that year. Yes, the bill was passed in the wake of September 11. It was scrutinised following one of the deadliest terrorist attacks in the lifetime of many of us. Its philosophy and approach were tested in this very chamber of parliament in light of attacks that fundamentally reshaped security around the Western world. In many ways, the wisdom that underlies the PJCIS predates the threats of the modern era, but it has since then been continually tested and found to be sound.

One of the unusual things about the PJCIS is that many aspects of its operations are largely dictated by rules set out in the schedule to the Intelligence Services Act. The process for nomination, the procedures for meetings and even the security clearances for staff are set out in the schedules to the act. That is why there is a statutory requirement for staff of the committee to be cleared to the same level as staff of ASIS. That is why there are strict rules supported by criminal offence provisions that govern the production of evidence and the secrecy of materials. This legislative architecture guarantees the ability to receive confidential information and to test the evidence of our intelligence agencies frankly and fearlessly. This is conducive to sound national security policy based on evidence. But there is a factor that is perhaps more important than the legislative structure of the committee, and that factor is its extraordinary history of bipartisanship. The word 'bipartisan' does not appear in the Intelligence Services Act, but the reason that the PJCIS is held in such high regard is that it has such a strong culture of cooperation. Serious security issues can be thrashed out behind the scenes to arrive at a negotiated recommendation. With a single exception more than 10 years ago, the PJCIS has been comprised of parties of government with a shared commitment to facilitating a joint approach to national security policy in this country. As Senator Paterson has so eloquently stated, this bill breaks that commitment. Quite frankly, shame on the Attorney-General of this country for presenting this bill to the parliament!

The majority of the amendments proposed under this bill are actually sensible reforms flowing from the Richardson review. The Richardson review was, of course, a review that the coalition commissioned in 2018, following directly from the independent intelligence review by Michael L'Estrange AO and Mr Stephen Merchant PSM. The Richardson review—to give it it's proper title,Comprehensive review of the legal framework of the National Intelligence Communitywas a seminal piece of work. It wasn't triggered by dramatic circumstances; it was a measured, comprehensive analysis of the frameworks under which our national intelligence community operates. It aimed to ensure that the legal framework governing national security in Australia strikes the right balance between individual liberty and collective security. Many of the recommendations which it produced are sensible and are supported by both the government and the opposition. The amendments in this bill adopt some of those recommendations to enhance the legislative framework of the national intelligence community. To that extent, as Senator Paterson has said, those are sensible recommendations and are reflected in the bill, and we support it.

But this is where the Attorney-General of Australia starts to get tricky. Labor have decided to play games with this bill. And what have they done? As we always say, the devil is always in the detail with Labor, and shame on them that that plays out in relation to one of the most important bills to come before this parliament. They have snuck in an amendment. They have decided to play around for their own crass political purposes with the composition of the parliamentary PJCIS.

Did they do this on the basis of consultation? No, they didn't. Was it actually a recommendation of the Richardson review? No. No-one called for it. But, of its own initiative, the government has decided to increase the size of the PJCIS from 11 to 13 members and to change the required composition from each chamber of parliament. Evidence from the Attorney-General's Department itself makes clear that 'this measure was a recommendation of government.' In answer to a question on notice from Senator Paterson, the Attorney-General's Department advised, 'It didn't consult with or advise non-government parliamentarians on the proposed changes to the membership and composition of the committee.'

So where are we in relation to the breaking of the bipartisanship? There is no evidence that suggests that this change is required. The Attorney-General of Australia needs to explain why he has presented a bill to the parliament changing the PJCIS. Does the government intend to appoint a crossbencher or a minor party member to the committee as a result of the changes, as the Gillard government did during the minority parliament? This would significantly and detrimentally change the character and culture of the committee, which has otherwise been a committee of the parties of government. The change would be detrimental because it risks undermining the bipartisan consensus on critical national security issues which has long been a feature of this important committee. The addition of two more members to the PJCIS also increases the risk of classified material being leaked, either intentionally or inadvertently, as the Director-General of Security stated in his oral evidence to the committee.

One of the most extraordinary things about this change, aside from it being completely unjustified from a national security standpoint, is that the Attorney-General, in his typical style—this is a hallmark of Australia's Attorney-General—has tried to ram it through in the hope that no-one will notice. Well, guess what. Senator Paterson is a little bit smarter than the Attorney-General gave him credit for. Labor gave the PJCIS just one month to conduct an inquiry into this bill, and it gave our intelligence communities just one week—that is the contempt with which it treated them—to prepare submissions on one of the most significant changes to our national security architecture in years. What is worse, none of the reforms were time sensitive. It is an absolute disgrace, and it has led to the most extraordinary result. For the first time in 17 years, the PJCIS issued a dissenting report.

The former and current governments have been working their way through the comprehensive review's 203 recommendations since December 2019, but what do we actually have now before us? We have the Attorney-General of Australia going rogue. He has tacked these reforms onto an otherwise sensible bill and, in a fit of arrogance, tried to foist it on the Australian people before they even knew what was happening. He is dealing with the national security of this country. Every external observer is left thinking this: Why the change? Why the rush? Why the attempt to avoid scrutiny? And let's not quote the now-Attorney-General on his views on scrutiny and transparency, because what he said when he had 'shadow' in his title does not stand up to how he behaves as Attorney-General of this country.

We're concerned that the proposed changes to the composition of the PJCIS are a result of internal politics within the government. After the May 2022 election, the government was not able to resolve its committee membership for three months, and the committee—the most important committee of the parliament—was not able to be reconvened until September 2022. By expanding the committee and changing the rules around its composition, this bill would give the Prime Minister leverage to resolve internal disputes within his own party. What a great way to utilise national security! But that's the Labor Party for you, under Mr Albanese. Alternatively, it will give him a sweetener to negotiate with the crossbench if he suddenly finds his majority in the House at risk.

Let's be very, very clear. The committee's important work should never be held hostage by any party's internal machinations. It should never be a bargaining chip to hold in reserve for when things get tough, because national security is about Australians and what is in their best interests. 'In case of minority government emergency, break glass' is not an appropriate way to approach the PJCIS membership. The approach taken in this bill will tell you two things about this government and the Attorney-General. The first is the utter conviction that this Attorney-General has in the merit of his own views, as I hear so many times from members of the legal fraternity. It wasn't necessary to consult the others who were affected because this government and the Attorney-General had decided. The second thing is the contempt shown for the interests of ordinary Australians and for their safety. I hope the Attorney-General of Australia reconsiders. Senator Paterson and I have said we want to work with the Attorney-General in a bipartisan manner on this issue. Senator Paterson and I have asked him to make changes, and we are trying to negotiate. We are doing this in the best interests of all Australians. But, as Senator Paterson has said, unless and until we can secure agreement and restore bipartisanship, regrettably the bill is not in a form that we can support.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I rise to speak in relation to this legislation, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023, with deep concern. I echo the comment of Senator Cash that the Attorney should carefully reconsider what is being proposed in this bill.

The Parliamentary Joint Committee on Intelligence and Security is one of the most important committees in this parliament, if not the most important committee. It is also one of the most respected committees. As someone who entered the parliament during the last term, I have always had deep respect for that committee and the way in which it has conducted itself in a nonpartisan fashion. And I have always been impressed by the comments that have been made by members of the committee—including former senator Keneally, who Senator Paterson referred to in his remarks—with respect to the satisfaction they've had working in a nonpartisan way on one of the most important committees in this place, dealing with some of the most important issues faced by this nation.

Everyone in this Senate chamber should carefully reflect on the fact that, for the first time in 17 years under governments of different persuasions, the opposition members on the committee were moved to enter a dissenting report. This is of great significance. I call on those sitting on the government benches to consider the magnitude of that. That is incredibly disturbing. For the first time in 17 years the opposition members were moved to enter a dissenting report. And these members are not just opposition members; they're some of the most experienced members of the opposition who have a track record of integrity in this place and have a deep concern for and interest in matters relating to security and intelligence: my friend Andrew Wallace MP, who served with great distinction as Speaker in the House of Representatives; Senator Simon Birmingham; Andrew Hastie MP; Karen Andrews MP, who served with great distinction as a minister in some of the most sensitive portfolios in the Australian government; and my friend and colleague Senator Paterson, who did a remarkable job during the last term of parliament as chair of the committee and maintained that principle of collegiality and nonpartisanship in his committee—he did that extremely successfully and should be congratulated for that. It is such a shame that, for the first time, the opposition has been moved to enter a dissenting report due to the way in which the Attorney, principally, has conducted himself with respect to management of this issue. Those on the government benches should carefully reflect on that.

The first point that Senator Paterson raised was the lack of consultation. There was no consultation with opposition members. How can you possibly think you can maintain a consensus, collegiate approach on a committee if you propose such a fundamental change to the membership and operation of that committee without even having the courtesy to discuss that with the opposition members of the committee? Why would you possibly do that? It has all the hallmarks of hubris and a lack of concern about maintaining the tradition of collegiality and the consensus approach of this committee. Why else would you possibly do that? It has all the hallmarks of hubris. It's extremely disappointing by the Attorney-General.

I say to Senator Shoebridge—he and I serve on a number of committees, and I enjoy serving with Senator Shoebridge on those committees. Quite often we put forward recommendations we both support, with respect to legislation, which are considered by the Attorney.

I ask Senator Shoebridge to consider and reflect on the Attorney's approach with respect to this legislation because, to be frank, it has some of the attributes which we encounter from the Attorney with respect to other recommendations which both he and I have put forward in a collegiate manner. They are simply disregarded. He didn't even enter into the process of consulting with the opposition on this matter—remarkable. Then, when there is a review of the bill, a one-month process, he gives one week for submissions to be made by our national security intelligence agencies, one week for important stakeholders like the Law Council of Australia to make submissions.

I have read the dissenting report of the opposition members and it is extraordinarily concerning. In paragraph 1.16, the Law Council, in its submission—this is the Law Council of Australia, and we are dealing with laws impacting on security—said:

The Law Council has been unable to consider all aspects of the Bill in detail because of the limited time for consultation, nor has it had the opportunity to adequately consult with its membership on the proposed reforms.

That is what the Law Council of Australia is saying, not a politician, not a Senator, not an MP but the Law Council, who, perhaps, are one of the most important stakeholders in considering legislation like this. They were unable due to that one-week time constraint to consider in detail the provisions of this bill. That is unacceptable, especially in circumstances where, as Senator Cash said, there is nothing in this bill which is so urgent that a reasonable consultation period could not have been provided to key stakeholders. There is no ground that has been established as to why only one week would be provided to key stockholders. I say to Senator Shoebridge—I know he has a deep concern about these matters: this is an opportunity send a message to the Attorney that the way in which the Attorney has managed this matter and, indeed, has managed other matters, where both Senator Shoebridge and I have been involved in our committee work, especially on the legal committee, is unacceptable. It is unacceptable. It is full of hubris and a lack of a desire to reach consensus in this place with respect to these very, very important matters.

Senator Paterson said, and this is dealt with in paragraph 1.22 of the dissenting report:

In response to a question on notice, the Attorney-General's Department conceded that it did not consult with or advise any non-government parliamentarians on the proposed changes to the membership and composition of the committee.

That is simply unacceptable with respect to how the matters on the PJCIS should be considered.

Another point I would like to make in responding to Senator Shoebridge's point about the exchange of information between our national security agencies and this committee, the point which Senator Paterson was making, and I think he made very well, is that, from a practical point of view, if the security agencies do not have confidence in the preservation of confidentiality by this committee then it will necessarily have an impact in terms of the information that they pass onto that committee. I mean, that is simply stating the obvious, and I think Senator Paterson was just making the point from a practical perspective, which is why there should have been further time for consultation in this committee.

The last point I want to make is this has all the overtones of a backroom deal having been made between the Attorney and whoever the Attorney has in mind to be appointed to this committee. It has all the hallmarks of that. I did provide a friendly—I'll characterise it; it's my own characterisation—interjection to Senator Shoebridge in relation to his possible membership of the committee in the event that this reform goes in. I simply say to Senator Shoebridge: if you haven't had a call, you won't have a role; if you haven't already had a call, I suspect you're not going to have a role.

I think that underlines the fact that this is all occurring in the backrooms of this place in order to provide some sort of plan B for the government in the event that it loses its majority in the other place. That is the worst possible reason to make a decision to change one of the most important institutions in this place, which has a track record of operating extremely effectively in this place. That is the worst reason you would make a change to our important intelligence and security legislation. That is the last reason why you would do it. But we've got nothing else. There's nothing else that we can assume on the basis of the information that's been provided. You're led inexorably to the conclusion that this is driven by a backroom deal made by the government with someone who, if this bill goes through, will no doubt appear in the membership of the committee.

I say, as Senator Cash has said, as Senator Paterson has said, that the Attorney and the government should reconsider. This is an awful precedent. Just reflect on the fact that, for the first time in 17 years, the opposition members—opposition of either political colour—have been moved to write the dissenting report. It's an awful precedent, and the Attorney should reflect on it. Members of the crossbench should reflect on the non-transparent way in which this proposal has been put forward and on all the hallmarks that it has of some sort of tawdry backroom deal between the government and someone in the lower house, for whatever reason—it has all the hallmarks of that—and should send a message to the Attorney that this is unacceptable. There are too many backroom deals.

I rose in this place, as did Senator Shoebridge, in relation to the Attorney's meeting with the then president of the Administrative Appeals Tribunal in meeting room 3. We don't know what happened in that room, just as we don't know what happened in the room where this deal was concocted. We don't know. And then we heard that the Attorney, in his meeting with the registrar, said to the registrar that their discussion in one of those backrooms was cabinet in confidence, which is one of the most extraordinary things I've heard from any Attorney anywhere in this country. It's just extraordinary. I have so much sympathy for the registrar, who has done a good job in very difficult circumstances. My colleague Senator Cash asked a question. He had to answer it in the estimates context, and he answered truthfully, but he was as baffled as we were as to how a discussion between a single member of cabinet, who actually is the cabinet secretary and wrote the guidelines on cabinet, which say nothing about cabinet in confidence when you have a discussion with the member outside of cabinet. He was as baffled as we were as to how his discussion with the Attorney could be cabinet in confidence.

This is not just about this bill. This is about the behaviour of the Attorney, and this bill provides an opportunity for all of us in this place to send a message to the Attorney that his conduct in this regard is not good enough. It's not good enough. I say to members of the crossbench that they should view this legislation in this context. It is an opportunity for the Senate to send a message to the Attorney, and I believe we should take advantage of that opportunity.

Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

I rise to make a contribution on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023. Noting that we do have a hard marker at 11.15, I suspect I will be in continuation in this particular contribution. Firstly, before I turn to the specifics of what is in this bill, I want to associate myself with the comments made in the debate today by my colleagues Senator Paterson, Senator Cash and Senator Scarr in relation to the importance of the Parliamentary Joint Committee on Intelligence and Security. We know that this legislation that we are debating here today will fundamentally undermine the role that that very important committee plays in ensuring bipartisan agreement on issues, legislation, matters and oversight that impact our nation's security. I think it is really disappointing that we are debating this legislation in such a hurried way and that the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, had such little time to consider this legislation, when it does fundamentally change that bipartisan committee and what it means for that committee to be bipartisan.

The PJCIS has a very important role to play in this parliament, as my colleagues have already alluded to today. It has an important role to play in overseeing issues of relevance to our national security, and its bipartisan nature has, for the last dozen or so years or even longer, ensured that those issues have been dealt with in a bipartisan way. That committee has been bipartisan. The membership of that committee has consisted of the parties of government. There are very good reasons why this is the case. It is important in this country for us to have bipartisanship on matters of national security, because it is in the national interest to do so. I've never had the pleasure of being on the PJCIS, but I do know, from seeing the work that comes from that committee into this place, that an awful lot of work goes into ensuring that that committee makes bipartisan recommendations to the parliament when we're considering legislation in relation to national security. That is a good thing. That is an important thing.

While this bill, in and of itself, will have the impact of undermining that bipartisanship—for reasons I will get into at some point in my contribution, whether now or later this afternoon—I think it is also really telling that this legislation that we're debating here today is the first time in 17 years that a dissenting report to a PJCIS report has been tabled. Like I say, it is important that this committee is bipartisan. I think it is a show of how fundamentally flawed the process to inquire into this legislation was that coalition members of that committee thought that it was necessary to make that dissenting report and put their concerns on the record.

They are very fair concerns. There was a very short process for consultation on this big change to the Parliamentary Joint Committee on Intelligence and Security. It was a short inquiry, and this bill has been rushed into this place today, again, I think, without the good spirit of bipartisanship that that committee is accustomed to, without fully consulting with the parties of government, without proper consultation with the government, being the Labor Party, or us in the coalition, being the opposition. This is a very disappointing state of affairs. Like I say, we all know that the PJCIS does incredibly important work, and I think, frankly, it's quite an insult to the parliament that the government has decided to rush through this big, fundamental change without appropriately consulting with members of the opposition, who, like I say, have an important role to play on that committee in terms of achieving bipartisanship of recommendations. For there to have been a dissenting report to a PJCIS committee report is a pretty big deal.

Going to the substance of the bill, it proposes amendments to enhance the legislative framework of the national intelligence community by implementing a number of recommendations of the Richardson review. The bill proposes amendments to 13 related Commonwealth acts to support these proposed enhancements. The bill also proposes to amend the Intelligence Services Act to clarify the level of detail required to describe activities issued under ministerial direction. We support these—

Debate interrupted.