Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

by leave—Labor welcomes this annual report of the Parliamentary Joint Committee on Intelligence and Security which provides an important accountability mechanism to the parliament and to the Australian public. Annual reports of the intelligence committee provide insight into the committee's work concerning Australia's intelligence agencies and national security powers.

Labor is proud of the bipartisan work we do through the intelligence committee to ensure all national security legislation is fit for purpose. Both in opposition and in government, Labor has a consistent record of working in a constructive manner to ensure that measures are passed through the parliament that will increase national security and keep our community safe. However, that does not mean that Labor will blindly support any measures proposed by this government and that it claims are necessary for our national security. Instead, we will work with the government to ensure that any new measures strike the right balance between keeping Australians safe and protecting the liberties of Australians and our rights to privacy.

Labor also works hard to ensure that our national security laws are always consistent with our Constitution and never undermine the rule of law in Australia. It is, of course, the particular responsibility of the Attorney-General, the First Law Officer of this country, to ensure that the rule of law is upheld.

At paragraph 1.52 of the report, the committee says, 'in executing its scrutiny functions, the Committee takes evidence from witnesses and agencies. It may at times receive advice from the Attorney-General. Some Opposition members of the Committee expressed concern regarding the fullness of advice provided.' I now want to detail what that concern is. During the committee's inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, the committee heard detailed concerns about the constitutionality of the bill from several submitters, including leading constitutional lawyers and the Law Council of Australia. Noting the strength of these concerns, the committee sought assurances from the Attorney-General, Senator Brandis, that the bill was constitutional. Senator Brandis refused requests to provide that legal advice, even in camera, to the members of a committee whose members are frequently entrusted with sensitive secret intelligence.

However, in an attempt to meet committee concerns, Senator Brandis wrote to me on 27 August 2015, asserting:

… the Government has received advice from the Solicitor-General, Mr Justin Gleeson SC, that, in his opinion, there is a good prospect that a majority of the High Court would reject a constitutional challenge to the core aspects of the draft Bill.

The committee viewed this statement as sufficiently important to reproduce it in paragraph 3.39 of the report on the citizenship bill, and reproduced in full the letter containing this statement as appendix D to that report. Noting the Attorney-General's assurances, the committee recommended that the bill be passed. Just to be clear, the committee recommended that the bill be passed because we relied on the Attorney-General to accurately and truthfully advise the committee about constitutional matters, particularly advice from the Solicitor-General.

Regrettably, it emerged in October 2016 that the Attorney-General had not accurately and truthfully advised the committee. The former Solicitor-General, Justin Gleeson, told the Senate Legal and Constitutional Affairs References Committee in October 2016 that he was not given the opportunity to advise on the final version of the citizenship bill as presented to parliament and as considered by the intelligence committee. It is clear that Senator Brandis misrepresented the advice of the Solicitor-General. The consequence of Senator Brandis's misrepresentation was to mislead the committee about a matter of great significance. After the revelation from the former Solicitor-General in December 2016, the Attorney-General was invited by the intelligence committee to make any further comment, but he declined that invitation.

The Parliamentary Joint Committee on Intelligence and Security plays a vital role in ensuring that our security agencies are accountable to our elected representatives. In doing this, the committee helps to maintain public trust in those agencies. The Attorney-General of the Commonwealth should never undermine that public trust and must always act with complete candour and integrity when providing information to the committee. It is imperative that the intelligence community be able to trust advice given to it by the Attorney-General when it is considering significant legislation. Both the rule of law and our national security will be compromised if the Australian parliament is misled into passing legislation that could be struck down by the High Court. Labor members of the committee note their strong disapproval of the actions of the Attorney-General in relation to the citizenship bill and call on him to give assurances that misrepresentations to the intelligence committee of this kind will never happen again.

I commend the report to the House.

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