Jenny McAllister (NSW, Australian Labor Party, Assistant Minister for Climate Change and Energy) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

In December 2020, the Comprehensive Review of the Legal Framework of the National Intelligence Community, led by Mr Dennis Richardson AC— released its final report with 203 recommendations.

This was the most significant review of intelligence legislation since the Hope royal commissions. Although the comprehensive review found that the legislative framework governing our intelligence agencies is largely fit-for-purpose, targeted reforms are required to ensure our laws keep pace with the ever-changing technological and security landscape.

Today, I am introducing the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023. The bill supports our intelligence agencies by making changes to improve their ability to protect the identities of their employees, communicate information to other Commonwealth and state agencies, where appropriate, and clarify approval processes for various activities. The bill also promotes increased oversight of our intelligence agencies by promoting further oversight of ASIO's security assessment work, and making it clear that junior Ministers are not able to exercise certain powers.

In making these changes, the bill would implement 12 recommendations of the comprehensive review. Importantly, the bill delivers on our firm commitment to implementing the recommendations of the comprehensive review as quickly as possible.

Much of the security conversation we've had as a nation over the past 20 years has been dominated by discussions around terrorism. That is always going to remain a core focus of the Australian government. Threats to life are our priority. However, it is no secret that we face enormously significant challenges when we look beyond our borders.

In his 2023 Annual Threat Assessment, the Director-General of Security noted more Australians are being targeted for espionage and foreign interference than at any time in Australia's history. The Director-General of National Intelligence also noted in Senate Estimates earlier this year that Australia is facing some of its most complex strategic circumstances since 1942. The importance of our intelligence agencies has never been greater.

Overview of the Bill

The bill would implement 12 recommendations from the comprehensive review and make a range of other refinements to intelligence-related legislation, including the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and the Intelligence Services Act 2001 (Intelligence Services Act).

Schedule 1 of the bill seeks to clarify and enhance the scope of the security assessment framework in Part IV of the ASIO Act. The bill would achieve this by expanding the definition of prescribed administrative action and allowing for further decisions or action to be prescribed by regulations.

Schedule 1 would make clear that ASIO advice provided for the purposes of informing decisions by the Foreign Investment Review Board are not security assessments for the purposes of Part IV of the ASIO Act. The bill would also enable ASIO to make a preliminary communication under Part IV to a state, or authority of a state, in certain circumstances where the requirements of security make it reasonable to do so.

Schedule 1 would also introduce a requirement for ASIO to notify the IGIS where certain security assessments are not furnished within 12 months. This promotes accountability on the part of ASIO in respect of delayed security assessments.

Schedule 2 of the bill seeks to improve the protections of the identities of Australian Secret Intelligence Service (ASIS), ASIO and Australian Signals Directorate (ASD) staff members.

The bill would improve and enable cover arrangements for ASIO, ASIS and ASD staff by enabling the respective Directors-General to determine one or more authorities of the Commonwealth that may be identified as the employer or place of work for a current or former staff member. Schedule 2 will also strengthen identity protections for ASIO and ASIS staff and agents under the Archives Act.

Schedule 2 would consolidate the secrecy offences in the Intelligence Services Act. However, the scope of these offences would not be expanded.

Furthermore, Schedule 2 would update and modernise the existing publication offence in the ASIO Act to take into account developments in technology and modern communications. Schedule 2 would introduce a new disclosure offence designed to strengthen protections for the identity of ASIO officers and affiliates, bringing them into closer alignment with those afforded to ASIS officers under section 41 of the Intelligence Services Act. These offences have been developed with reference to the principles for framing secrecy offences contained in the Commonwealth Government's Review of Secrecy Provisions Final Report.

Schedule 3 of the bill would make amendments to provide greater legal certainty and clarity with regard to ministerial authorisations and warrants. Schedule 3 would also amend the sequencing of ministerial authorisations in the Intelligence Services Act to enable a more streamlined authorisations process.

Schedule 3 would also ensure that certain powers vested in the Attorney-General can only be exercised by the Attorney-General or a person acting as the Attorney-General.

Schedule 4 of the bill introduces additional oversight in relation to ASIO's security clearance work. The bill would introduce a requirement for ASIO to notify the IGIS where a security clearance decision or security clearance suitability assessment has taken more than 12 months to finalise.

Schedule 4 also amends the ASIO Act to enable the Director-General of Security to delegate their power to furnish non-prejudicial security clearance suitability assessments to an ASIO employee regardless of their position. It does not change the existing legislation relating to the furnishing of prejudicial security clearance suitability assessments.

Conclusion

The measures I have outlined in the bill would make targeted amendments to the legal framework governing our intelligence agencies, as recommended by the comprehensive review. It will also make some related changes which will strengthen protections for the identity of ASIS, ASD and ASIO staff, and clarify or refine elements of the intelligence services act. These changes will support our intelligence agencies in their vital work, while also enhancing oversight in specific areas.

The bill reflects the government's commitment to the continual improvement of Australia's robust national security laws, to ensure that Australians are kept safe and our way of life is protected.

I commend this bill to the chamber.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) 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. 3) Bill 2023. The comprehensive review of the legal framework of the national intelligence community, otherwise known as the Richardson review, was commissioned by the former coalition government. This was the most significant review of Australia's intelligence legislation since the Hope royal commissions in 1974 and 1983. It was undertaken by the former secretary of the Department of Defence Mr Dennis Richardson, and the unclassified version of the review and government response were released on 4 December 2020.

The majority of the national security legislation amendment bill before the Senate now deals with 12 of the recommendations from the Richardson review, all of which the former coalition government agreed to in the 2020 government response. The bill also includes some additional elements that the current government has identified as necessary in consultation with our national security agencies.

The bill contains four schedules. Schedule 1 of the bill would amend the ASIO Act to extend the definition of 'prescribed administrative action' to decisions relating to parole, firearms licences and security guard licences, and enable new categories of prescribed administrative action to be prescribed by the regulations. This schedule would also improve ASIO's ability to communicate information to other Commonwealth agencies, a state or authorities of a state for certain prescribed administrative actions, while also clarifying that a decision under the Foreign Acquisitions and Takeovers Act 1975 does not constitute prescribed administrative action. Schedule 1 would require ASIO to notify the Inspector-General of Intelligence and Security where certain security assessments are not furnished within 12 months.

Schedule 2 would improve cover employment arrangements and protections for employees of ASIO, ASIS and the Australian Signals Directorate, while separately consolidating a number of secrecy offences in the Intelligence Services Act. Schedule 2 would also strengthen identity protections for ASIO and ASIS staff and agents under the Archives Act and would modernise the publication offence in the ASIO Act, which makes it an offence to make public the identity of current or former ASIO employees and affiliates, to account for developments in technology and modern communications.

Schedule 3 of the bill would clarify and streamline processes for ministerial authorisations and warrants for ASIS, ASD and AGO. Schedule 4 would introduce further oversight of ASIO's work on security assessments and security clearance related activities, including by requiring ASIO to notify the Inspector-General of Intelligence and Security where a security clearance decision or security clearance suitability assessment has taken more than 12 months to finalise. This schedule would also amend the ASIO Act to enable the Director-General of Security to delegate their power to furnish non-prejudicial security clearance suitability assessments to an ASIO employee, regardless of their position.

Collectively, these reforms address 12 of the recommendations of the Comprehensive Review of the Legal Framework of the National Intelligence Community that relate to security assessments, the protection of identities and information, authorisations for intelligence activities and oversight. Separate to the recommendations of the Richardson review, the bill would also clarify the operation of existing provisions of the ASIO Act and the IS Act and update the publication offence of the ASIO Act to take into account developments in technology and modern communications.

The measures in this bill will support Australia's national security agencies by strengthening identity protections for employees, increasing operational flexibility and sharing of information, clarifying some authorities to provide greater certainty and supporting quicker processing of security clearance suitability assessments. The bill will also promote increased oversight of national security agencies by introducing additional safeguards to provide oversight of ASIO's work on security assessments and vetting, and limiting who can exercise certain powers.

The coalition will always support sensible changes to ensure our legislation is fit for purpose to enable our intelligence agencies to effectively perform their vital roles and ensure this performance is subject to appropriate oversight. As such, we will be supporting the passage of this bill.

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

I rise on behalf of the Greens to indicate our very real concerns about this legislation and, indeed, about the overall national security legislation landscape in this country. We know that this bill, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023, came about following the now quite aged review by former secretary Richardson. Former secretary Richardson delivered a report in 2019 that was largely ignored by the coalition, who, I think, implemented a handful of the recommendations put forward by Mr Richardson. Those unimplemented recommendations have now been considered by the Albanese Labor government, which is seeking to implement another handful of recommendations from the Richardson report.

When we're looking at national security legislation, it's useful to look at one of the observations that Mr Richardson made in his report. He said, effectively, that laws that put constraints around national security agencies—organisations like ASIO and others—and laws that put a legal framework around the national intelligence community should not be seen as barriers. They should be seen not as things that agencies try to slip around and avoid but as essential statements of principle that limit their operations and ensure that they perform their functions in accordance with the law.

Just this week we've seen two extraordinary examples from the national intelligence community, which covers parts of Defence, signals, ASIO and elements of the AFP. We've seen two incidents this week which show what a danger the current national intelligence community is to basic principles of a free and open and fair society in this country.

The first was that the AFP have been green-lighting undercover police operatives from the People's Republic of China, permitting and inviting them to come to Australia as recently as 2019—and who knows what they've done since—under the Chinese government's Operation Fox Hunt program, which is effectively a way in which that government hunts down dissidents, people it identifies as economic criminals and others around the globe.

The way you become an economic criminal in most instances in that particular regime is when activities that were accepted in building fortunes and creating corporate wealth whilst those individuals and corporations were in favour with the government suddenly become criminalised when they lose the favour of the government. That's often the way in which economic criminals are identified in the People's Republic of China. If they leave the country and perhaps take some of their wealth with them, they get put on the Operation Fox Hunt list. We know from investigations by organisations associated with the United Nations that over a dozen of those individuals have been hunted down in Australia—often individuals we've given the protection of permanent residency to. They have been hunted down and extracted back to China, and heaven knows what's happened to them in the criminal justice system there.

You would have thought that the AFP would insist upon limiting that and opposing that wherever possible, but instead, under current commissioner Kershaw, they literally invited undercover police operatives to come here to track down a woman who had the protection of permanent residency in this country. This was allegedly under some constraints—some agreement that was struck between the AFP and the Ministry of Public Security in the people's republic. And then, lo and behold, apparently the undercover operatives breached that polite little gentleman's agreement that Commissioner Kershaw entered into with them, and they removed, through whatever level of coercion—and we don't know—that woman back to China, and we don't know what's happened to her.

This was all secret, all undercover and all covered by the secrecy provisions in the national security legislation in this country. No-one said a whisper about it—no-one from the AFP, nobody from DFAT, nobody from the Attorney-General's office. It was all covered under a blanket of security. The only way we found out was that a whistleblower from within the Chinese government's overseas covert operations unit actually told us the truth. We didn't find out from our own agencies. We didn't find out from Commissioner Kershaw or the AFP. We didn't find out from the current or the former Attorney-General. We found out from someone blowing the whistle. And thank goodness we did.

But, of course, if that gentleman had blown the whistle as an Australian officer, we would have seen the Labor Party and the coalition wanting to put him in jail. They would have said: 'Oh, no; a breach of Australia's national security legislation! The national interest is harmed.' Instead of acknowledging him as a brave individual who stood up and spoke truth to power, both the Labor Party and the coalition would be wanting to put him in jail under these very laws.

And why do we know that? Because another event happened this week. David McBride, a former military lawyer who, for his country, served two tours in uniform in Afghanistan has been put in jail by the Labor Party and the coalition. They put him in jail for the crime of telling the truth about war crimes, using this very legislation—with all of its checks, balances, nonsense and secret reviews by secret committees, populated only by the so-called parties of government, which means the war parties and the secrecy parties. They put him in jail because he raised repeated concerns about war crimes, including the murdering of civilians by Australian troops in Afghanistan.

He was concerned about how the senior hierarchy was not being held to account and the key decision-makers were not being held to account. Some of his concerns were that everyone lower in the food chain in the ADF was being hung out to dry while all the big, key decision-makers were being given medals and promotions and being rewarded. Who wouldn't be concerned seeing the current CDF get a medal when he oversaw operations which we now know were deeply compromised by repeated war crimes and the unlawful killing of civilians? No intermediate officers were held to account for the war crimes. Who wouldn't be concerned about the lack of responsibility in the hierarchy?

But, as a Greens senator, I want to be clear: those individuals who committed the war crimes should also be held to account—100 per cent. When none of his concerns were being addressed, when no-one was being held to account inside the ADF and when, as a lawyer, he had this evidence of people being murdered—extrajudicial murders by people wearing Australian uniforms, with some of it captured on video—and no-one was doing anything about it, he then tried to use the PID Act and tried to make disclosures in accordance with law but was completely ignored. Nothing happened.

So, eventually, as you would hope any individual of character would do when they saw evidence of murders and extrajudicial crimes such as those committed by Australian troops in uniform and nobody was taking action, he went to the public and told the media about it. As a result of that, we had the Brereton inquiry, which confirmed dozens and dozens of war crimes likely committed by Australian troops. What does the Labor Party and the coalition do with that? Do they seek to find responsibility in the ADF and hold the Chief of Defence Force to account? Do they even take his medal off him? No—nothing there on the Chief of Defence even though he was in charge of that theatre of operations for a significant part of the time. There was nothing done to the CDF—keep your medal and keep your promotion—and nothing to the other theatre commanders.

Instead, the first prosecution under these very laws, commenced under the former coalition government and backed to the hilt by the now Albanese Labor government, is against David McBride, the whistleblower—not someone who pulled the trigger but someone who blew the whistle. That's who this government targeted, that's who the former government targeted and that's who these laws target—whistleblowers.

This week, after years and years of pressing for a criminal conviction, actively seeking jail time for David McBride, we finally saw the outcome that I'm sure the coalition, elements of the national security organisations in this country and the Albanese Labor government cheered in, because Justice Mossop put him in jail for a minimum 2½ years and a maximum 5½ years. That's 5½ years in jail for telling the truth about war crimes.

We have seen the Albanese Labor government run an attempted character assassination on David McBride and say he's not the perfect whistleblower, that he was concerned that the focus of the investigation was all on the troops at the lower end of the spectrum who were following orders and that no-one higher in the hierarchy was being held to account. They say, for that reason, we should just ignore any kind of public interest. They say we should just ignore it—that he didn't have a public interest. We don't interrogate the motives of whistleblowers; we interrogate the information they give to the public. The information David McBride gave to the public has been essential for the first few—weak and pathetic as they are—steps on accountability for these war crimes. Without David McBride, we wouldn't even know.

When you read the decision of Justice Mossop, who adopted the submissions put to him by the Commonwealth government, there's one word that comes back time after time. There's one word that gets repeated in Justice Mossop's judgement. It's the word that was fed to him by the Albanese Labor government. It was fed to him by the Commonwealth in the prosecution. It's 'deterrence'. David McBride has been put in jail for 5½ years for deterrence. What does that mean? That is a message to every other whistleblower, or potential whistleblower, in this country: 'Don't you dare. Don't you dare tell the truth about what our special forces are doing, what defence is doing, what ASIO is doing or what the AFP is doing. Don't you dare.' That's the message the Albanese Labor government has delivered now through the decision of Justice Mossop, who adopted the position put of deterrence. 'Don't you dare tell the truth'—this is the legislation that supports that. Is it any wonder the Greens don't support the war parties and their moves in this regard?

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

At the outset I want to place on the record my appreciation for the work of Senator Shoebridge and his team in leading the Greens in relation to the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023. In considering this legislation, I think it is important to place it in context. I will go to the context in a moment. But I want to first place on the record a few key concerns that I and my colleagues share on the legislation before us this afternoon.

The legislation as currently worded would include expansion of the exclusions that are provided for those with spent convictions to enable ASIO to use, record or disclose other pieces of critical information related to spent convictions. This has been raised as a concern by the human rights committee inquiry into this bill. The bill also reduces oversight by excluding ASIS, the general Geospatial Intelligence Organisation, the Australian Signals Directorate, the Office of National Intelligence and the Defence Intelligence Organisation from the Commonwealth Ombudsman's jurisdiction. Does anyone seriously believe that these entities require less oversight, that they are organisations with track records that would lead a reasonable legislature to believe that they can be trusted to go off on their own? This is a deeply concerning aspect of this bill. We do not support these changes, and we'll propose amendments to retain the ombudsman's oversight and remove what we believe is the inappropriate use of spent convictions.

The context of this bill is important, and it is this: this Labor government has recently completed the prosecution of David McBride, the whistleblower without whom the Australian public would not know that our armed forces in Afghanistan were murdering Afghan civilians—were torturing Afghan civilians, were burning their homes to the ground—and that this was not an isolated incident but a pattern of behaviour. It occurred again and again and again across multiple deployments. Crimes were perpetrated by senior squadron leadership—individuals who had been placed on the highest moral pedestal by both the Australian Defence Force's senior command and Australian governments of both Liberal and Labor leadership.

Without David McBride, the public would not know. Because of his actions, the public gained insight into what was being done in the community's name. This was a courageous act by this individual, who I have met. In the face of pressure such as none in here can possibly imagine and risk to which I hope none of us in here are ever subjected, he decided to do the right thing and tell the truth. And the response of this government is to send him away for more than five years. It is disgusting. It is a disgrace. Not only have they sent him away; they have failed to act on so many of the issues which he was attempting to bring to the attention of the public.

As we sit here now, we have had the Brereton inquiry deliver a report that has led to some initially very tepid consequences for a few individual perpetrators on the ground—some of them. Let us make no mistake: it is vital that the individuals who pulled the trigger—who kicked innocent civilians off the edge of cliffs and then came down to the bottom and shot them in the back of the head—be held personally responsible. And it is vital to understand that, in an organisation such as the Australian Army and the Australian special forces, there is a chain of command and a chain of responsibility. If those individuals commit those actions within a certain operation or theatre of war, the senior command must also be held responsible. That has not occurred to this day.

The Australian government, dragged kicking and screaming by the work of individuals such as David McBride, has begun some accountability measures against some individual perpetrators, but the systemic issues remain. Those at the top of the chain of command were in posts of responsibility during the times when the SAS squadrons would go outside the wire of the base and travel into the Afghan countryside and murder and destroy and shoot disabled people as they fled helicopters. While those actions were being perpetrated, those in the position of senior command either knew and did nothing or did not know when they should have. Neither outcome frees them from responsibility.

That is just the military leadership. But we have a defence minister in this country with extraordinary powers. Across the time of our some-20 years in Afghanistan, defence ministers were appointed by both the Labor and Liberal parties, and not a single one of them has been held responsible for the fact that organisations under their responsibility ended up enabling individuals to carry out these crimes. In fact, a ridiculous political silence has settled over this issue, where both sides pretend that they had never heard the stories around the bars of Canberra, that they had never had the side conversations with the defence ministers who had come back from Afghanistan after having been to the illegal bars on base and heard the stories from the troops who were deeply concerned—let's put it politely—with the culture of what was occurring on the ground in Afghanistan. It wasn't so much an open political secret in this place as an open military secret within the structures of the Australian senior armed forces command. This is ridiculous.

This lack of accountability has enabled individual perpetrators to frame themselves as the victims of a scapegoating exercise. It has allowed these individuals who did perpetrate these disgusting, disgraceful, hateful crimes to paint themselves as the victims because those above them in senior positions of command have not been held responsible. Through this entire process, as members of the Liberal Party argue about unit citations and as Labor try to pretend that they weren't in government and didn't have a defence minister—in fact, multiple defence ministers—appointed while these crimes were occurring, the community that is ultimately forgotten is the Afghan people who have had their lives destroyed either as a direct result of these crimes or as a broader result of our presence in Afghanistan. And then there are the families of those individuals who perpetrated the crimes. Those individuals who perpetrated the crimes, who returned to Australia shrouded in untouchability, in a sense of superiority, in the procedural protection and cultural cloak offered to them by both the armed forces and the Australian political establishment, were then allowed and enabled to perpetrate terrible abuse against their own families. And when those families and individuals sought help they were often treated in a way that in no way matched the urgency, sensitivity, care and impartiality that they should have been able to expect in that moment.

This entire sorry saga would have remained hidden in a vault somewhere in the Department of Defence, without David McBride and whistleblowers like him, who, faced with the choice between silence, complicity and action, decided to act—decided to risk their freedom, in the belief that if the public knew then politicians would be forced to act. Well, the public knows now. And the politicians did act.

What David did not expect—as he and so many had hoped that that action would be against the perpetrators—was that that action would be against the whistleblowers. Or maybe they did expect that of the mob over here, the Liberal Party, which contains so many individuals who like to cosplay as though they will join together at some point in a new national security state where every area of policy is run through a Department of Home Affairs and a Department of Defence that are completely interlinked, that will allow them to know personally what every member of an opposition group is up to at any particular point in time, and who fantasise about a world where individuals in the community with free thought and action are protected from the results of that free thought and action by a super state that keeps the people of Hobbiton safe. Who does that remind us of?

They certainly did not expect it from a Labor government elected on a platform of improving transparency in Australia and protecting whistleblowers. Every day Labor have been in government, they've had the power to drop these charges against McBride and instead to acknowledge his bravery and the bravery of so many other whistleblowers who have brought these issues to light, to celebrate them, and to hold the chain of command responsible. Instead, they have continued with the coalition's prosecution, and now they have condemned this man to over five years in jail. It is a shame upon them all.

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

In this bill before us today, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023, the lack of scrutiny and the use of national security arrangements to hide information, as outlined in the bill, are very significant issues. And they are, may I say, significant matters of public interest.

I rise today to add my support to the comments of my colleagues Senator Shoebridge and Senator Steele-John. I'll add my concerns and my personal experience over many years in this area, and I know other colleagues will also add their weight to this debate.

It was reported yesterday—and it has been covered well by Senator Shoebridge and Senator Steele-John—that the jailing of David McBride, an Australian Army officer, a veteran of Afghanistan, for blowing the whistle on war crimes in Afghanistan by Australian forces, is a dark day for democracy and for press freedoms in Australia. David's defence argued about the public interest component of his disclosures, which have led to a chain of events including the civil prosecution of Ben Roberts-Smith and, may I say, a conviction in the civil courts that Ben Roberts-Smith is a war criminal. And yet, all those disclosures that were outlined in that court case in significant detail and all the other disclosures we've seen in the media—the Brereton report and the endless questions asked by the Greens in Senate estimates, as another example—have still not led to any criminal prosecution of Australian special forces in Afghanistan. It's not just Ben Roberts-Smith; we know there are a number of individuals who have been investigated for a period of time. The questions you need to ask yourself are: 'Would this have occurred if David McBride didn't provide those documents to the media—to the Guardian and the ABC?' and, 'Can any Australian, can any senator in this chamber, not argue that those disclosures were significant in terms of our moral and ethical duties to uphold justice for those in Afghanistan who were killed by Australian special forces in cold blood?' I don't hear anybody talking about that here today.

Mr McBride, as a whistleblower, has risked everything—and I've read David McBride's book; I've spoken with David at rallies and, like my other colleagues, I've got to know him over the years. He was recently featured on 60 Minutes. It hasn't been easy for Mr McBride. His life's been sheer hell. As he said in his book, he knew what he was getting himself into when he handed over these documents. He had gone through internal processes to have his concerns dealt with at the highest levels—and they weren't—and he felt his moral and ethical obligation was to go down this path as a whistleblower.

May I say, for Mr Andrew Wilkie in the other place, it was exactly the same thing. Remember the weapons of mass destruction that led us into this horrific war in Iraq—the illegal, immoral invasion of Iraq? He was threatened with 40 years in jail, and yet he continued to campaign on the need for telling the truth and the need to seek justice. He is now a member of parliament in the other place because of his convictions. I've always publicly acknowledged that he was a hero of mine during the Iraq war for speaking out on these matters and, once again, putting it all on the line. It's not an easy thing to do when you are an officer in the Army. But it was his training, as it was Mr McBride's training, that led them to this pathway to blow the whistle. They felt they had a moral obligation and a duty to disclose the truth. But that's not enough—we throw them in jail for doing so.

The word 'deterrence' has been raised here today. I'd like to throw in another word: retribution—retribution for disclosing secrets. We haven't got the balance right, and, while we are seeking to improve it with amendments, this bill doesn't get the balance right.

I also raise the case of Witness K and Mr Bernard Collaery. How many debates have we had in the Senate over the years trying to get respective governments to drop the prosecution of Witness K and Bernard Collaery? Once again, in the story of Witness K, which I'm sure Senator Paterson is very familiar with, he went through its extraordinary lengths internally to have his concerns dealt with within the national security apparatus. When his concerns became public and were taken to The Hague by Mr Collaery, what did we do? We prosecuted the whistleblower and the lawyer in this case. What sheer hell both those men went through for so many years, because they dared challenge the secrecy emblazed in this legislation today, when they felt they had a moral obligation and a duty to disclose information that was in the public interest.

And it's an opportune time, less than a week away from 20 May, when another whistleblower—a publisher, Julian Assange—will find out from a UK court whether his appeal to the UK High Court against his extradition to the US for publishing inconvenient truths and facts about the war in Iraq has been successful. That's not to mention the other conflicts that both Australia and our allies, especially the US, have been prosecuting. His wife, Stella Assange, recently said—and she used the word—'This US persecution of my husband is nothing but retribution.'

We are sending a very strong message of deterrence and retribution by prosecuting the whistleblowers for disclosing our secrets. Who knows what the High Court is going to do? The US government has been asked to provide assurances that Mr Assange, if he is extradited to the US, will be covered by US law like any other citizen. Will he be guaranteed his First Amendment rights? We'll wait and see what those US assurances are, but I can tell you they won't be worth the paper they are written on.

I have been to Washington, and I have had meetings with the Department of Justice and the Department of State, as have my other colleagues. It's no secret that the US administration does not consider Mr Assange a journalist, even though he won a Walkley Award for journalism here in Australia. An international union of journalists have asked for his immediate release. WikiLeaks was a publisher. But if the US argue the case successfully that he's not a journalist, the First Amendment will not apply to him. This is really obvious. Australians need to know that it's all on the line for Mr Assange next Monday, after sitting in a maximum security prison, his health broken by years of imprisonment prior to that in the Ecuadorian embassy in London.

I want to acknowledge that this government has said that he has suffered enough, and they want his extradition to end. It is a good thing that this government has at least publicly said that. We will never know what they've been doing behind the scenes in terms of trying to secure his release. I know there are people in this place that have done everything they can to try and secure his release. But it is such an important day next Monday. If Mr Assange is extradited to the US for doing his job as journalist, it will be a very dark day for press freedoms. This whole extradition was driven by the Trump administration. Once again, that's no secret.

Mr Mike Pompeo, the head of the CIA at the time, drove this extradition process. They wanted Julian Assange's head on a pike. He was considered one of the most dangerous men in the world to the US. But, actually, the people who consider him the most dangerous are the US security apparatus. Let's also be reminded that our previous Prime Minister, Mr Scott Morrison, boasted publicly that he had Mike Pompeo on speed dial. It is no coincidence that the previous government did nothing to help Mr Assange, because we were so close to the US administration and the US security apparatus.

This is an issue that many people in this chamber and this parliament have now signed onto—to free Mr Assange and to end this extradition. It is a significant matter of public interest in Australia. His case stands before all of us, not just here in Australia but internationally. The world will be watching what the UK courts decide next Monday. I hope to hell that they decide to allow him to appeal this persecution—this affront to freedom and democracy—and send a message that journalists have a very important job to do, which is to publish information without fear or favour if it's in the public interest. Once again, look at the disclosures from the video Collateral Murder, which shocked the world and propelled Wikileaks to international attention, not to mention all the disclosures that were made through a series of WikiLeaks publications, which may I say were published by some of the key media outlets around the world, who also won awards for journalism thanks to the WikiLeaks disclosures—everything released 100 per cent factually and carefully redacted in stories to protect our forces and US forces, which is also often ignored in the rhetoric.

What other truth could we gain from a conflict like Iraq if it wasn't for Julian Assange and Private Bradley Manning, now Chelsea Manning, blowing the whistle? She has been pardoned by former president Obama and is now free. Yet the publisher of the documents, Julian Assange, is rotting in jail for our freedoms. I think all of us agree that that is not good enough.

So I urge the US courts to cancel and walk away from this extradition, this persecution of an Australian citizen, a Walkley Award journalist, and I urge the UK courts to give him full access to the UK judicial system to appeal to the High Court.

It brings me back to this bill before us today. I understand that the security services here and within the Five Eyes organisation do really important work. We do live in a very dangerous and complex world, but there are times when individuals are driven by their moral character to a point where they feel they have to blow the whistle. As Senator Shoebridge rightly said, don't prosecute the motives of these whistleblowers; prosecute the information that they have provided. If you look at what David McBride provided, if you look at what was provided through Bernard Collaery and witness K, and if you look at what WikiLeaks and Assange provided, none of us can argue that that wasn't in the public interest. Those disclosures were critical to our understanding of these conflicts and the need to do better and the need to seek justice. That's what I ask senators in this chamber to consider today.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Well, here we are debating the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023, and I think all colleagues should reflect on the use of the term 'national security', because what a catch-all that phrase is. It's used to justify the persecution that Julian Assange is currently facing—'Oh, national security,' say the US government, when they're asked to justify why they're trying to extradite Mr Assange to a virtual death sentence in the United States. 'National security,' cry the Australian government, as a justification for prosecuting David McBride, who yesterday was, shamefully, sentenced to a term of imprisonment of five years and eight months, with a non-parole period of 2½ years. 'National security,' say the government's lawyers in that case, when they're pressing for a significant term of imprisonment, 'because we need to deter people from doing what Mr McBride did'. Why? 'Because of national security,' say the Labor Party.

'National security,' say the so-called parties of government in this place, the so-called parties of government in the United Kingdom and the so-called parties of government in the political duopoly that is the United States of America, every single time they want to justify government secrecy, every single time they want to justify draconian new laws that crack down on rights and freedoms that we've enjoyed in this country and, indeed, that we have sent tens—in fact hundreds—of thousands of Australians overseas to fight and die to protect throughout the colonial history of this country. 'National security,' say the so-called parties of government when they refuse to introduce a charter of rights or a bill of rights in this country, leaving us as one of the only liberal democracies in the world that doesn't have some form of protection in that area.

But what does 'national security' actually mean? Here's what it can mean: 'national security' used to protect the profits of corporations in the military-industrial complex; 'national security' used to protect the profits of fossil fuel corporations that are engaged in international geopolitical manoeuvrings in order to mine large gas, oil or other petroleum deposits around the world. National security has become a catch-all to punish and prosecute whistleblowers.

Let's reflect just a little bit on what happened yesterday to Mr David McBride, a brave whistleblower who blew the whistle and exposed horrendous war crimes committed by people wearing Australian Defence Force uniforms. You'd expect that those people who committed the war crimes would have been the first to find themselves in the dock, but—no—it was the person who first exposed those war crimes. He was not only the first person to find themselves in the dock; he's now been sentenced to a term of imprisonment of over five years, with a non-parole period of 2½ years. We should be pinning medals on people like David McBride, not sentencing them to multiple years in prison.

Our whistleblower protection framework in this country is fundamentally broken, a fact that was actually acknowledged by the Labor Party when they were in opposition. Now they're in government and the spooks have got their ear. The so-called national security apparatus of government have got hold of the Labor Party and, suddenly, they've abandoned the semi-principled position they held on whistleblower reform when they were in opposition. That's all gone out the window now. They were instructing their lawyers, in the case of Mr McBride, to press the judge for serious sanction based on the principle of deterrence. Of course that's what the spooks are going to say. Of course that's what the national security apparatus is going to say. That's the frame they live in. But it is incumbent on the government—which is actually not there to represent the spooks or the national security apparatus of government, but is there to represent the Australian people—to actually question that advice and, when necessary, reject that advice. But that won't happen. It doesn't matter which political stripe of government we have in place in this country, because we're operating in a political duopoly. Whether it's Coles or Woolworths, the price gouging remains, and, whether it's a Labor or Liberal government, the same approach will be taken.

Let's run through it. The spooks decide they need more powers. The national security or intelligence apparatus in government decides it needs more powers. Because they know how this works, they put in their ambit claim for more powers. The government says: 'Yes, that's a good idea. We'll deliver that. We've just got to run it through the Parliamentary Joint Committee on Intelligence and Security.' It goes into that committee process, and occasionally that committee will rasp off a few of the roughest edges of the legislation that it gets. But who is on that committee? That's right: the Coles and Woolworths of Australian politics. The bill comes out of that committee process sometimes effectively unamended and occasionally with some of the sharpest, roughest edges sanded down. It comes into this parliament and it's passed by the Coles and Woolworths of Australian politics. On and on it goes; rinse and repeat.

In the last 20 years we have had well more than 200 pieces of legislation which erode fundamental rights and freedoms pass through state, territory or Commonwealth parliaments in this country. All the while, the political duopoly fights off attempts to have a national conversation about whether we should have a bill of rights in this country, leaving us as one of the only so-called liberal democracies in the world that doesn't have some form of legislated or constitutionally enshrined bill of rights.

In order to fix our whistleblower protections in Australia, we need a bill of rights. We need to understand that, when people like Mr McBride and the member for Clark, Mr Wilkie and, albeit in different circumstances, Witness K and Bernard Collaery take action, they are taking that action because it is in the public interest.

Finally, the Attorney-General, Mr Dreyfus, did instruct the DPP to drop the charges that Mr Collaery was facing. I might add that it was after Witness K was prosecuted and persecuted through our legal system, with the support of governments of both political stripes, that Mr Dreyfus finally acted to drop the horrendous prosecution against Mr Collaery. If you look at the reasons that Mr Dreyfus gave for those instructions, they could just as easily be applied to Mr McBride's case. Although those cases were not completely analogous, the rationale for dropping the prosecution could have equally been applied to Mr McBride, because, fundamentally, both Mr Collaery and Mr McBride, although there were differences in their circumstances, were acting in the public interest and being persecuted and prosecuted by the state for acting in the public interest.

It is up to Labor to justify why they acted to withdraw the prosecution against Mr Collaery but not against Mr McBride. In the same way, it's up to Labor to explain why they have not taken stronger action to protect the interests of Julian Assange, who after many years still languishes in prison in the UK because one of our great supposed friends on the international stage, the United States of America, wants to extradite him to, virtually, a death sentence over there for public interest journalism.

There's a pattern emerging here, colleagues, where people who act in the public interest are persecuted and prosecuted by the state. That's what happened to Mr McBride, that's what's happening to Mr Assange, and that's what happened to Witness K and Bernard Collaery. They were prosecuted and persecuted by the state for acting in the public interest. Why does the state do it? National security. We keep hearing it. But, at the end of the day, 'national security' is code for protecting entrenched power interests. It is code for protecting corporate profits, whether that be in the military-industrial complex or in the petroleum complex. It is the profits of those corporations that drive so much of Australia's foreign policy. They are what drive so much of the government's agenda in this country, whether that is a Labor or Liberal government.

We do have deep concerns about this legislation. There are some positive elements to it, and it's worth noting that the changes in the bill are a result of the Comprehensive Review of the Legal Framework of the National Intelligence Community undertaken by the Attorney-General's office. Of course, the Greens actively and often call for increased transparency and increased accountability, so we do support those elements of this legislation that deliver increased public reporting, increased transparency and increased accountability. We also note that the bill removes the ability of the Attorney-General to delegate their powers under the ASIO Act and the TIA Act and prohibits the conferral of the Attorney-General's powers under the ASIO Act and TIA Act upon another minister except by legislative amendment or substituted reference order made by the Governor-General in exceptional circumstances, and we do think that ensuring those powers are exercised by the Attorney-General only is appropriate. So we understand that there are some positive elements to this legislation. But I say to the Australian Labor Party: don't forget the things you said in opposition.

Now, we've all heard the log cabin story of the Prime Minister, pumped out repeatedly, ad nauseam, on his social media challenges, and we all know that the man who sits in that office today is a very different person, with very different values from the ones he held in his early years. Australians understand the hypocrisy of that log cabin story.

But I want to say to the Labor Party very clearly: Australians are beginning to understand your hypocrisy in regard to whistleblowers and to understand that what you said in opposition is not what you're going to actually deliver in government and that is on you. It is on you that you proposed a half-decent way forward to improve whistleblower protections in this country when you were in opposition, but you won't proceed with those reforms now you're in government.

We need to look after people who are acting in the public interest, not subject them to the persecution and prosecution that people like David McBride have been subjected to. I want to say to Mr McBride that, notwithstanding the huge term of imprisonment to which he has been sentenced, there are many, many people in Australia who thank him for his courage, who thank him for his actions and who are sincerely, genuinely grateful to him for acting in the public interest.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to contribute to this debate on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023. In the last two years of this parliament, we have seen the Leader of the Opposition, Mr Dutton, block and oppose pretty much all the other things that the government wants to do. But when it comes to the issue of national security, or to whipping up fear about immigration or trampling on the human rights of Australians and those who stand up for our freedoms, you know what? The two major parties are in lock step. Whenever it comes to an issue of national security, they close the doors; they work out the deal between themselves behind closed doors. It's the blokes looking after each other—and probably getting all a bit giddy about the terms 'national security' and 'defence' and the different technologies available. I can just imagine the defence minister right now being absolutely excited about the new toys that he's going to buy with the new expanded defence budget handed down last night. If there is anything that you can take as guaranteed in this place, it's that, when it comes to national security, when it comes to defence and when it comes to beating up on migrants and the issue of immigration, the major parties will be in lock step.

And who's standing for the real freedoms of Australians in this place? It is the crossbench. It is the Greens. Over and over again, we've asked: 'Where is the scrutiny? Where is the justification for the overblown budgets? Where is the justification for the secrecy?' Now we ask: 'Where is the justification for jailing a man of integrity and courage for nearly seven years?' As for the Labor Party and the Liberal Party, the only thing you can guarantee that they'll agree on is: when it comes to beating up on everyday Australians' freedoms and human rights, they'll get in the room, they'll close the door and they'll get all giddy about it.

This piece of legislation has some improvements, but it does not go anywhere near what we need for expanded transparency and accountability in this space. In fact, it does the opposite. There's more crackdown on FOI availability. There are the exemptions from transparency for further government agencies in this space.

But I really want to raise the question of what on earth these two major parties have done over the last few years to stand up for the freedoms and the protection of those who dare to speak the truth—the whistleblowers who dare to speak the truth about what's going on in the name of the honour of Australian democracy. David McBride is a hero, and you failed him. Both sides failed him. It is an absolute disgrace that the first person imprisoned in this country in relation to war crimes is the person who exposed that this was going on. It is absolutely backwards. You don't have the courage in your convictions to stand up for the true freedoms that our brave defence personnel fight for every day, like the protection of human rights, democracy and freedom of the press. You're gutless. The only person jailed in this country for war crimes is the one that has exposed them.

That's not to mention billionaire media moguls funding court cases to cover the backsides of those with big question marks over their heads. Did you do anything about that? Did you concern yourselves with the national security implications of a media mogul billionaire covering the legal costs of a war criminal? You did nothing. You've done nothing. No wonder the Australian people are sick and tired of hearing your bleak, limp offerings on human rights protection and freedom of the press.

I know my colleagues on the Greens crossbench here have spoken eloquently about all the other issues in relation to this bill, and I commend them for putting it on the record today. On the fate of Australian citizen Julian Assange, what have you done? It's pretty much nothing. He's an Australian citizen who has stood up for the protection of human rights, the freedoms of Australians and democracy around the world, and you've done nothing. You've let him rot in a prison on the other side of the world and used him as a political pawn in your diplomatic negotiations. If he ever does get back to Australia, he's a shell of the man he was when you allowed him to be locked up.

Your inconsistency with the freedoms that you like to protect and promote is just galling. The only thing we can trust both sides on is the inconsistency. You say one thing at the UN and do another thing here. You say one thing to your mates in Washington and do another thing here. You say one thing behind closed doors and don't even tell the Australian people what you're signing the public up to. The secrecy reeks in this national security space, and it has been an increasing problem. We know that. Legal experts continue to say to us in our Senate inquiries, over and over and over again, that the giddiness of the Labor and the Liberal parties about national security while locked behind closed doors with spooks is just pathetic.

How about putting in some proper protections, like a human rights act, to tell the Australian people that you do care about their actual freedoms, their protections and their rights? This bill will pass today because both major parties love playing footsies under the table on national security, even at the expense of whistleblowers and the freedoms of everyday Australians and journalists. They're so quick to ram these types of laws through and very slow to do anything that actually protects the rights of whistleblowers and journalists to speak and report the truth. I look forward to hearing the minister's response.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I thank senators for their contributions to this debate. This bill, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023, comes after a series of incidents in recent weeks which have been shocking to the community, to the communities involved and also to individuals that have been directly affected.

Our security agencies face the daunting task of attempting to detect and disrupt these attacks before they occur, and our agencies are extremely successful in this work. As the DG of ASIO has made clear, even when it is not the primary threat facing the country, as is the case at the moment, terrorism is a threat that we can never turn away from. I thank our intelligence and law enforcement agencies for the tireless work they do to keep our communities safe.

This bill reflects the government's commitment to the security of our society and to ensuring that the legislation that underpins the actions of the national intelligence community is robust. I commend the bill to the chamber.

Question agreed to.

Bill read a second time.