Andrew Wilkie (Denison, Independent) Share this | Hansard source

I rise to speak on the National Security Legislation Amendment Bill (No. 1) 2014. This is disgraceful, absolutely disgraceful. Here we are with some of the most sweeping, far reaching, deep reforms to Australia's national security legislation in memory yet, when you look at the speaker list, there is the minister for the government, there is the shadow for the opposition and, it appears, one Labor backbencher.

Clearly the government and the opposition—with the exception of the member for Fremantle—do not understand the role of this place. It is to bring ideas in, to bring bills and motions in, to explain them, to fight for them, and, in particular, to explain why there is a need to rush a bill in the way this is being rushed. It is to come in and make the case and explain why the controversial aspects of this bill are there—things that I will describe later as obvious flaws in this bill. It is to come here and make the case why things are missing from this bill.

But where are you? You think you can just ram it through the Senate and bring it into the House of Representatives and in an hour, if we are lucky, the business will be done and we will be left to live with the most sweeping reforms to Australia's national security legislation probably since Federation, and that is not good enough. And it is not good enough to come in here and say it is okay to rush things because of these dire security circumstances.

And it is certainly not good enough to come in here and refer to the 2013 Parliamentary Joint Committee on Intelligence and Security report into these reforms and say that this report backs these reforms. It does not. The fact is, the committee—and I was a member of the committee at the time—was fundamentally handicapped because it did not have a detailed exposure draft to work to. We had basically a handful of pages from the then Attorney-General which pointed us in a particular direction and we were asked to pass comment. Time and time again and in the report's findings, we make the point that we could not properly scrutinise these reforms. In fact, recommendation 41 says among other things that the draft amendments 'should be released as an exposure draft for public consultation'. That has not occurred. The recommendation also states:

The Government should expressly seek the views of key stakeholders, including the Independent National Security Legislation Monitor and Inspector-General of Intelligence and Security.

In addition, the Committee recommends the Government ensure that the draft legislation be subject to Parliamentary committee scrutiny.

Where is the scrutiny? There is no scrutiny going on. There is one speaker for the government and two speakers for the opposition. Again it is left to the crossbench in this place just as it was left to the crossbench in the Senate to take a stand and to hold the government to account.

The fact is this is being unnecessarily rushed. It is a fact that raids over the recent weeks have occurred, quite effectively I understand, with the current laws of the land. None of what is in this bill would have made any difference to the raids that have already occurred. So there is no rush. There is time to get it right.

We do need to modernise our national security legislation. I accept that. We need to modernise the legislation, for example, to make it a technology neutral. So we do need to get it right and getting it right means a proper debate in this place, a debate where a number of obvious flaws could be identified. The media has understandably made much in recent days of the notorious section 35, which would make it an offence punishable by up to 10 years imprisonment for a journalist if he or she was to disclose a special intelligence operation. That will have the effect of shutting down the media. It will also have the effect of discouraging the media from trying to work cooperatively with the government and security agencies because they will hope deniability will be some sort of defence if they are to deliberately or inadvertently report some sort of special intelligence operation.

But there is another issue here. Why are we adding a penalty of 10 years? Do have a problem we need to fix? No. The fact is there is already a penalty for the media disclosing a special intelligence operation conducted by the Australian Federal Police, and that penalty has never been applied. So why on earth are we extending it from a couple of years to 10 years? It is clearly overreach by the security services which have been invited to write an open cheque. The government, which wants to beat its chest and look tough on national security, said: 'We'll sign that!' And the opposition, which is desperate to look just as strong on national security, said: 'We'll countersign that cheque too!' No-one has even made the case that there is a requirement for such a measure in this bill.

But that is not the only thing. These special intelligence operations, apparently, can be authorised by the minister. There is no requirement for any judicial authorisation or oversight of such an operation. That is another fundamental flaw in this bill. Most ministers are very good most of the time; but when we have such sweeping reforms to our legislation we must ensure it is absolutely watertight and prevents some minister, at some future point in time, overreaching and going too far.

That is another problem with this bill: there is no judicial authorisation for special intelligence operations. I do not accept the words of the government, nor those of the opposition, about the limits that would apply to a network of computers that might be under surveillance. The fact is, when you look carefully at this legislation, there are scant limits on the breadth of a computer network that can be surveilled. Again, we have good ministers most of the time; but what about when we have a bad minister? In another security environment, when someone wants to overreach and go further, these laws would allow that minister to go much further than the reassuring words of the government and the opposition today would indicate.

And what is this about ASIO having the right to use force? Up until now, ASIO would have the Federal Police with them—people who are trained, armed, equipped and have a culture around the proper use of force; but with this bill ASIO will be able to barge in and do whatever they want when it comes to the use of force. I will tell you what that will mean: it will mean, more and more, that ASIO will go in alone. A spy agency will go in alone and use force. More and more, they will do away with the inconvenience of having to take the Federal Police along with them. Before we know it, at some point in the future, we will have spies kicking in doors and using force with no police alongside them, and that is another step towards a police state.

These are some of the problems with the bill. But what about all the things that are missing? We do need to update our national security legislation. We do need to ensure that genuine problems are rectified. One of the problems we have at the moment is there is no parliamentary oversight of intelligence operations. I make that point again: there is no parliamentary oversight of intelligence operations. At the moment the only political oversight, if I can use that word, is by the ministers who have responsibility for the particular agencies; for example, the Attorney-General keeps an eye on ASIO and the foreign minister keeps an eye on ASIS. But there is no oversight by the people's House. There is no oversight by the Parliamentary Joint Committee on Intelligence and Security because that committee, by legislation, only has oversight of administrative matters. Compare this with the United States and the United Kingdom where similar parliamentary committees have operational oversight. In fact, as recently as just last year, the British intelligence and security committee was given such power. At least our colleagues in the US and the UK understand that if you are going to give security services powers, especially more powers, then it should be up to the representatives of the people to keep an eye on the use of those powers. I have circulated an amendment which seeks to rectify this. It seeks, in essence, to remove the limits on the oversight power of the Parliamentary Joint Committee on Intelligence and Security. I hope the government and the opposition see the merit in supporting that and will understand it is doing nothing more than bringing our parliamentary intelligence and security committee into line with similar committees in the United States and the United Kingdom.

Now back to section 35P and the concerns that have been expressed about it. It would appear to be a bullying act to send a message to the media: 'Don't you try to report on us. Don't you try to hold us to account. Just go away and report on other things and accept our press conferences and media releases when it comes to security.' It is clamping down on free speech. It is clamping down on having visibility of what the intelligence agencies are up to. The other problem associated with that is this bill does not seek—nor has the government flagged any intention—to amend the Commonwealth Public Interest Disclosure Act, which currently carves out—that is, excludes—intelligence material and intelligence officials from the whistleblower protections contained in the Public Interest Disclosure Act. Over two parliaments now, regrettably, we have whistleblower protection being denied to intelligence officials; we have intelligence material not being covered by whistleblower protection; we are now, in this parliament, going to ramp up the penalty for the media if they dare report an inappropriate intelligence operation. My colleague, the member for Melbourne, has quite appropriately referred to what happened in East Timor, where we now know the Australian Secret Intelligence Service planted listening devices in the Timorese offices—not because Timor is a security threat but because we wanted an Australian company to have a commercial advantage, get a better deal and get the contract. How grubby is that? And what better example is there of a time when the media should report something, bring it to the public's attention and let the public understand what our security services are up to? The fact is: we have very good security services, and most of the time they are doing a very, very good job. But the fact is that sometimes they err and sometimes the people that direct them or supervise them err, and we need to have safeguards in place, such as the media or whistleblowers, to shine a light on those problems and bring them to the public's attention.

The fact that the government, with the opposition's support, is rushing through flawed legislation—flawed because of problems and deficiencies within it—has to raise the question: why? Why is the government, with the opposition's support, wanting to overreach like this? I can only assume that the government wants to capitalise on and exploit the current security environment. I can only assume that the security services are absolutely delighted that they have been invited to fill in a blank cheque. In some ways, this is a distraction. It is another distraction from the fact that our heightened security environment is a result of us helping to start a war that has run for 11½ years, fomented more turmoil in the Middle East and caused more angst within our own community. Perhaps it is to distract us from the fact that we were, until recently, giving broad diplomatic support to the Syrian rebels that included the Islamic State. Now, all of a sudden, the Islamic State has gone from being—I think to quote the Prime Minister, or words of the Prime Minister to this effect—one of the goodies to one of the baddies. This is outrageous. This is absolutely outrageous.

In closing, can I just say this: we do need to be continually reviewing our laws, including our national security legislation. We do need to be modernising that legislation when it needs to be modernised, particularly with changing technology. We do need to look for ways to make this country safer, but we do not make this country safer by this; nor do we give the community any confidence in the parliament, or that they are, in fact, safer, when they see governments rushing through legislation that is full of controversial and problematic sections and is missing the things that are really needed. Hopefully, at least the government and the opposition will see the sense in supporting both the amendments being moved by my colleague, the member for Melbourne, and also my own amendment, because those amendments would go, at least, some small way to rectifying this bill and to genuinely making this country somewhat safer.

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