Mike Kelly (Eden-Monaro, Australian Labor Party, Shadow Assistant Minister for Defence) Share this | Link to this | Hansard source

I rise in support of the amendments proposed by the shadow Attorney-General. In relation to this issue some tense comments have been made in the course of the morning, but I'd like to try to draw back and bring back some sanity to this discussion. This is important for a number of reasons. We have had—and it has been commented on—a great history of bipartisan collaboration on the Parliamentary Joint Committee on Intelligence and Security. To be part of that effort in the interests of national security is probably one of the most rewarding experiences I have had in this parliament. I have great respect for the coalition members who have been working with us on that committee; and I've had great respect for the chair of the committee, the member for Canning, who brings not only his service background to that endeavour but has been patient and deliberative in his work. And we have produced good results in the committee.

The amendments, the recommendations that we have worked through, particularly with the intensity of the workload over the last six years, have been significant. We have faced real threats. And there are real concerns from the agencies, which we have listened to and tried to deliver the outcomes they have sought. I have to say that that 17 tranches of legislation that the Minister for Home Affairs refers to required a lot of work. Frankly, in the process of rushing those through the committee, there was a lot of work that needed to be done to repair them to deliver the outcomes they sought. The committee worked together to produce those outcomes. In particular, I want to commend the shadow Attorney-General. He and his team did the work of a department in producing over 300 recommendations to achieve just that: poor drafting was highlighted in the public and private hearings we conducted. Those 300 recommendations were accepted and it was a joint effort on that committee to achieve those outcomes.

We did that work in the same style and the same manner again in relation to this temporary exclusion order legislation. The recommendations were put forward in good faith on the basis of the legislation that was presented. As has been mentioned by the minister, this was modelled on the UK measure produced in 2015. So this is something that could have been in process at any time over the last six years—or at least since the UK model was reflected upon in 2015. So there would have been time for us to revisit any substantive redraft of this legislation before the committee. And what we are proposing is that that be the course of action—that this legislation be referred back to the committee and done on an urgent basis. We could do that work, however long it took—in the course of this week, we could've got that work done.

There are a couple of issues in particular. The committee produced 18 recommendations altogether—and I noticed that there was some quibbling over what was accepted and what wasn't. In the few minutes I have left to speak in, there is one particular issue of concern that needs addressing, and that is the question of constitutionality. Both sides of politics, in these last 10 years, have experienced issues where approaches we have taken in policy have been struck down by the High Court when there's been a belief by governments that it was all kosher. We've had specific expert commentary reflecting on the constitutionality of this legislation that needs to be answered. And we are putting that forward in the interests of making this legislation effective and not making it vulnerable.

We've supported the legislation—although I have some personal concerns with the approach, which I will come back to. In the circumstances that the agencies are in, in dealing with these returnees, this legislation has been indicated as being important to give them time to respond to preparations for receiving these threat elements returning from prescribed areas, that we have outlawed under legislation, and most likely participating in crimes against humanity, against international law and fermenting terrorism within Australia from those remote locations. It would be in our interests to make sure that they are effectively prosecuted when they return to this country, and we understand the need for preparation for that. However, there are circumstances that need to be addressed in resolving this constitutional challenge and in providing the committee and the parliament time to carefully consider the bill in detail.

I will also comment that this legislation, this approach of temporary exclusion, has been criticised by a number of authoritative institutions in terms of the security outcome we seek to obtain here, and that includes the Australian Strategic Policy Institute and the Lowy Institute. Even the executive council of the Australian jury and the Law Council have commented on the risks that may be generated by taking this approach to this problem.

There's another issue here too, which is that we are putting a burden on our Kurdish friends, who are not a state. They don't have the structures and the institutions of a state. They have been brave. I worked with the Kurds in the year that I served in Iran. They are most reliable ally that we have. They have held the heavy burden in this fight against ISIS—above all other stakeholders involved in this effort. Yes, men and women of the ADF provided wonderful support to enable them to achieve results, but they were the ones largely doing the fighting and dying in the field against these horrendous, heinous criminals, and now they're asking for help. This is a huge burden for them and they need help. We've seen ISIS move from the conventional combat phase of operations. Now they have morphed back to their traditional style of terrorism, and transnational terrorism, and that is their effort to grow and spread their terrorist acts across the globe, so this international threat requires an international effort to deal with it.

The US Secretary of State, Mike Pompeo, has highlighted that that is the fact, and has called on those countries with citizens in this situation to take those people home and deal with them. He's well aware that there's a risk there that these threat elements will spread out to areas where they can operate with impunity, they can be welcomed as heroes and they can operate in ungoverned spaces. We've seen this story play out before in Afghanistan and elsewhere. The exact words of Mike Pompeo were:

We have an expectation that every country will work to take back their foreign fighters and continue to hold those foreign fighters, we think that is essential.

That's our major ally. That's the Trump administration. This is not some social democratic administration, this is our key ally and the Trump administration.

Mr Pompeo also said that the West would, 'never have to fight these same terrorists again,' if we took this kind of action. He said:

We have rounded them up, they are now contained and they need to continue to be contained so they cannot present additional risk to anyone anywhere in the world.

That is important, because the truth of the matter is that more than 100 Australians have been killed since 2001 in overseas terrorist attacks. That is by far the greatest threat and risk to Australians. Australians are great travellers. Our kids and retirees are out there touring the world, visiting interesting places, which can be risky. It is in our interest to ensure that we limit the risk that they face when they are travelling where they have faced the biggest threat of being killed and maimed in large numbers.

You can look at that story. It happened in New York, Bali, Barcelona, London and Sri Lanka. Australians have been casualties of terrorist attacks in all of those venues. I will just cite one story that brings that home to me. In 1995 there was a gentleman who the Sudanese government had in their custody that they wanted to return to Saudi Arabia. The Saudi Arabians refused to take him back because they had revoked his citizenship. This goes to this other measure that we have looked at here in terms of revocation of citizenship. They wouldn't take him back, and so the Sudanese government in 1996 sent that individual to Afghanistan. That was in 1996. After that happened, that individual, whose name was Osama Bin Laden, caused the bombing attacks on the US embassies in Darussalam and Nairobi—hundreds killed—the attack on the USS Cole, and 9/11. That led to the war in Iraq, the war in Afghanistan and thousands and thousands of people being killed, all because his citizenship was revoked and he wasn't taken back by the country who owned him.

This is the potential risk that we run in doing the same to these citizens of ours, who would have a special interest in targeting Australians and who were engaged in fomenting terrorist action in Australia from those remote locations. This is the risk we are running in taking this approach. I personally feel that we should have a regime in place here where we can take these people back as soon as possible and restrain them—those arrangements seem to already exist in a lot of the legislation we've already produced through the committee and in this place—to keep them off the streets while we pursue possible prosecution or at least the safe tracking and containment of those individuals. That, I think, would be the more prudent, secure and risk-eliminating approach to take for Australian citizens. We've seen the situation where individuals go back to a country where they had a second citizenship, for example Libya, Lebanon or Pakistan, and we know what could potentially occur from there. There are ungoverned spaces in all of those places.

So we have a real problem that we need to deal with effectively here. We support this bill as one option for dealing with this problem in certain circumstances. Obviously, the agencies have indicated they need time to prepare for receiving these people in the circumstances that they are operating in at the moment, so we don't oppose that. But what we do say is that this legislation needs to be looked at again in the form that it has been presented.

I will make one other comment before finishing. I've put special emphasis on the fact that this has been a bipartisan committee. I have spent more than 30 years of my life immersed in the security affairs of this nation, fighting these terrorists and dealing with these issues, only in the national interest. When I was security adviser for Bill Shorten, I worked closely with Peta Credlin to make sure that our approach was bipartisan. I made it clear to her that all she had to do was tell me this was needed and we would work to make these things happen. So I find it extremely worrisome that the government, in its approach to this legislation, is leaving open the accusation of politicising this issue, as evidenced by comments such as, 'Whose side are you on?' That negates the very democratic institution that all of this is meant to protect.

But, beyond that, it's a personal insult not only to the general members here, who are all proud Australians, but I've worn this country's uniform in four different war zones, putting my life on the line to fight these people. No-one can say to me, or to the member for Solomon, who served in this country's uniform, 'Whose side are you on?' The member for Maribyrnong served in the reserves for this country. The member for Moreton wore the Air Force Reserve uniform. Don't say to them, 'Whose side are you on?' Argue the merits of this policy. Don't deny the valid role of this institution to debate and analyse these types of legislation, because it's important we get the balance right between civil liberties and action on security but also deliver the right outcome. We are entering into the commentary on this legislation in good faith. Don't question the patriotism or the intent of the members on this side. I won't stand for that. We won't stand for that. Just engage in an honest debate with this. Use the institutions that were created to deal with these matters. Let the parliamentary joint committee do its work. It's done good work. It will do more good work as long as we keep the politics out of this.

My plea to this government is that we revisit this style of approach you are taking now. Do not put at risk the institution that we serve or the faith that the Australian people place in this institution to do things the right way in the interest of national security and protecting their liberties.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

It's important to be clear what the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, which we are voting on today, will do. Under this bill, if it passes, this will be the state of the law: the minister could refuse to allow an Australian citizen back into the country, even though that person has committed no crime. That decision by the minister is not reviewable by any court or by anyone else, and the minister can keep on doing it again and again and again. In other words, if this legislation passes, the current Minister for Home Affairs has the capacity to say to someone who's travelling overseas: 'No, you are not entitled to come back to your family, to your home, even though you've committed no crime, and there are absolutely no checks and balances on that power. If you think I've made the wrong decision, you cannot do anything about it.'

We are seeing the rule of law slip out of our hands. Under this government, we are seeing—and have seen time and time again—some very basic principles of Australian democracy in our constitutional system getting trashed. Up until a little while ago, the idea was that if someone suspected you'd done something wrong you would get taken in front of a court and if you'd done the wrong thing you'd get punished and could potentially be imprisoned. We are now moving a world away from that to a point where not a judge with all the facts, where there is a right of reply, but a minister, who is making a decision behind closed doors, gets to determine whether they think you've done something wrong—or, not even that, whether they think you might do something wrong in the future, even though you haven't done anything wrong already.

In other words, we're moving away from a system where you do something wrong, you get brought before the courts and you get prosecuted. We are moving away from that. We are moving to a system where someone thinks you might do something wrong in the future; therefore, you get punished. That is not what other countries are doing, despite what the minister has told us. We are going further here than are places like the UK in dealing with the threat of terrorism and, in so doing, some very basic principles of individual liberty and the rule of law are slipping from our grasp.

The attempt to move this bill in its current form is clearly an attempt by the government to wedge Labor. It's nothing more than that. You can absolutely see that, because the government was prepared to introduce some safeguards a little while ago and now they've backflipped. It is crystal clear to anyone who is looking at this that this government has no agenda. It was elected as a one-trick pony. That trick has happened, so now they've got to fill the rest of their time, and they are thinking, 'What can we do to try to wedge the opposition?' That much is crystal clear.

I will support the opposition's amendments to this bill, because they try to make a bad bill better. I will support the move to refer it back to the committee to try to get some of those amendments back in. I say all that in the context of us having been very concerned about the work of this committee and the closed-door deals that it does and the fact that it locks out third-party voices in this parliament. What it usually ends up doing is proposing legislation to take away people's civil liberties, which gets rammed through this place.

Let's put that aside; I'll be supporting the amendments. But I do plead with the opposition to reconsider their position if their amendments don't get up either here or in the Senate. This is what the coalition government is doing in week 2 of its term—trying to say that the minister is able to bar you from coming back into this country to live at your home or see your family, even though you've done nothing wrong. That's what they're trying to do in week 2. And if you give in now, imagine what it's going to be like at the end of three years. I and the Greens will fight hard to defend principles of rule of law and democracy and liberty in this country. Over the next three years, because we know that this government will stop at nothing—there is nothing they won't do, given that they've got no agenda; there is no line they won't cross—we are going to need to be very vigilant in this parliament in defence of some of those basic principles.

Let's go through in a bit of detail what this bill does. Under this bill the minister can issue an order to say, 'No, you are not allowed to come back into the country.' That applies to citizens as well as others. So, that's the first thing people need to know. This is going to apply to all of us. People might have in their minds, 'Oh, this only applies to someone who is potentially coming here who might have lived in another country or grown up in another country.' No. To the Australian born and bred, the Australian citizen: this will catch you. If the minister thinks you might commit an offence of a certain kind related to terrorism when you come back in here, then the minister is able to say that you're not allowed back in the country.

That is different to the United Kingdom legislation that the government has spoken about many, many times. Under the United Kingdom legislation, the idea is that you've done something that counts as a crime first. There's a test; there's a threshold. So, it's not just that someone sitting behind a desk thinks, for their own political reasons, that you might do something in the future. There is a threshold. It's much more consistent with the basic principles of the rule of law. That is not in this legislation. In other words, to get pinged under this you don't even have to have done something wrong in the first place.

The minister can also act if they get advice from ASIO. What's notable about this is that the advice from ASIO that the minister says they're acting on is not challengeable or reviewable, even by an Australian citizen. In other respects, ASIO's advice against you is challengeable. But this government has gone out of their way to say, 'No; we're going to introduce a new kind of advice from ASIO in this legislation'—where someone can just pick up the phone and say, on a nod and a wink, 'I think someone's a concern.' Then the minister can say: 'Well, that's good enough for me. I'm going to deny them entry.' And there is nothing you can do about it, as an Australian citizen, if the minister says, 'Well, I've just got this advice, so I'm going to make the decision.' There is no protection built in for you under this legislation. In the United Kingdom, before they're able to do something like this to you they go to a judge. Here, they don't have to go to a judge before they make the order, and then you, as the citizen, if the order's been made against you, don't have the right to take it to a judge afterwards.

So, this man who is sitting at the despatch box right now is the one who can determine, for every single one of us in this country, whether we're allowed back in or not, to see our home and our family. There may well be some very legitimate instances in which there are some people to whom we say, 'No, you've committed a crime; something should happen to you.' But there might be a bunch of other people who have done nothing wrong and, out of a misunderstanding, you think, 'Well, they might do something in the future.' What can you do if you get one of these orders made against you? It's why, in the United Kingdom, you can challenge these things in court. It's why a judge gets involved and why you don't give one person—this man here, the member for Dickson—the power over you and your life. But that is what this bill will do.

There would have been some safeguards in it had the amendments that came out of the committee passed. Would they have been adequate? Probably not. Would this bill have been better than what it is? Yes. But those amendments aren't in this bill. They were argued for for a very, very good reason. That is because we are slipping into something other than democracy when we give one person the unchallengeable power to say, 'You are not allowed into this country even though you are a citizen'—or even if you're not a citizen. One person could say unchallengeably, 'You as a person are not allowed into this country.' That is of grave concern.

I accept that we are dealing with complicated issues here, because there may be instances that are covered by this bill where there is someone who has done something heinous against Australian citizens—for example, being involved in a terrorist act overseas that might have claimed the lives of Australian citizens. Every one of us would want to have a discussion about how to deal with that. My and the Greens' starting point would be if someone has committed a crime, bring them back here, try them and sentence them. If they're found guilty then make them live out that punishment. That is how the law works. There is not a case where the law is broken in that respect. We can prosecute people and put them in jail if they have done things that are terrorism crimes.

This bill goes much, much further than that. It also deals with the complicated question of children. This bill will apply to people as young as 14. Someone as young as 14 could get caught by this. When you're dealing with children, you're most likely to be dealing with something where it's actually the parents who have made the decision on behalf of the children and it's not the children themselves who are at fault. To say Minister Dutton has the unchallengeable power to keep a child out of the country because of something that their parents might have done is an affront.

Again, I accept that these are complicated questions. Whether it's an innocent child who's now having the sins of the father visited upon them or someone who has committed a heinous offence overseas that everyone in this country would think is appalling, there are many from across the spectrum who argue that the best thing to do with those people is bring them back here, try them and put them in jail. This stops it. This says Australia can not only keep them away—and I stress there are going to be two categories of people who are caught by this. There'll be the ones who have committed crimes or done wrong, which most people in this country would think deserve to be punished, and then there are going to be other innocent people who've done nothing wrong at all but that the minister has decided—perhaps out of mistaken identity, who knows—to make an order against. But we'll never find out about it, because you're never going to be able to bring this case to court; you're never going to have any daylight shone on it. We will never know if, tomorrow, the minister decides to keep people out of the country who've done nothing wrong unless a journalist tells us about it. We will never know.

So there are those two categories of people who are caught by this but, with those who have done wrong and who most people in the country would accept have done wrong, you have to question whether or not you say, 'No, we're going to close our doors to you rather than bring you in here and try you under our judicial system.' What are they going to do? Where are they going to stay? Do you really think the world will be a safe place if Australia decides that, rather than bringing back someone who has committed a terrorist act against Australian citizens—while they were on holiday, for example—and trying them and putting them in jail, we will shut our door and let them roam the world?

Is that really what we're saying? Is that really how we're going to make the world a safer place? No.

There are people across the political spectrum who are saying countries should not be allowed to shut their door to their own citizens who've done wrong and that those countries should be responsible for taking them back and prosecuting them. But that's not this minister's approach. This minister's approach is to make the world a less safe place by saying: 'To people who've done something wrong and committed a heinous act, well, we don't care where you go next as long as it's not here. We're going to shut the door. If you go and commit a crime somewhere else, well, you can't blame us.'

Lastly, I again plead with the opposition. This is going to be the first in many of these wedges. If you give in now, it is only going to get worse. This is about democracy. This is about the rule of law. This is about individual liberties and those difficult balancing acts. We cannot support this bill as it stands.

Rebekha Sharkie (Mayo, Centre Alliance) Share this | Link to this | Hansard source

The policy underlying this bill has largely been developed as a measure to control the return of Australian former Islamic State fighters and supporters from Syria and elsewhere in the Middle East. I don't think anyone in this chamber disputes that. The bill provides for temporary exclusion orders, or TEOs as they are known, to prevent the return of individuals to Australia without a return permit and for return permits to enable pre-entry and post-entry conditions to be imposed on returning individuals. It provides a mechanism to control the return of individuals who may pose a threat to Australia. We recognise that. It enables the minister to impose conditions on individuals once they have returned to Australia to manage the risk that they may pose to communities.

Centre Alliance is sympathetic to the intent of the bill. However, it is essential that the legislation includes all of the recommendations made by the Parliamentary Joint Committee on Intelligence and Security during the previous parliament and that we are thoroughly able to investigate the concerns unearthed through that committee process, and this bill has not done this. The government introduced an earlier version of this bill in the last parliament and the provisions of that bill were subject to scrutiny through the PJCIS. In their bipartisan report, the committee recommended a number of substantive changes to the legislation. These were sensible, measured recommendations designed to improve the operation of the bill and to provide a modest level of parliamentary oversight and, as the member for Melbourne said, that does not exist in this bill. It is so alarming that Labor would be keen to wave this through—it just beggars belief. And so the government has decided to pick and choose the recommendations they are willing to implement—recommendations that were supported, as I said, by a bipartisan committee.

What we are seeing now is that government, with the opposition, are choosing to give yet more power to the Minister for Home Affairs. That is deeply troubling. Time and time again we are asked to give more powers to the minister and the agencies he oversees while at the same time any attempt at parliamentary scrutiny is rebuffed as being soft on security. That is not true.

We accept the need for the scheme and we accept it needs to be flexible and responsive to an ever changing landscape of foreign conflicts, but it is imperative that the legislation includes appropriate safeguards and accountability measures to ensure public confidence in the scheme. Without further scrutiny of this bill, what confidence can any member of parliament, let alone a member of the public, have in the transparent and just application of this scheme? Furthermore, Centre Alliance is calling for the government to release the legal advice that it received, if any, with respect to the constitutionality of this bill. The PJCIS clearly identified a constitutional uncertainty regarding the temporary exclusion of Australian citizens from their own country. The committee strongly recommended that the government obtain legal advice from the Solicitor-General with respect to constitutional validity of the provisions. We understand that that legal advice has been received, but is it shared with us to make an informed decision here tonight? No. How can I, as the member for Mayo, make an informed decision on this bill when we can't even see the Solicitor-General's advice?

How can I or any other member of this chamber be expected to make an informed decision? Again, Labor: please reconsider your position on this. It just flies in the face of everything that you purport to stand for here.

Of further concern, Arthur Moses SC, president of the Law Council of Australia, has provided legal advice that the proposed legislation is unconstitutional as it is currently drafted. So I call on the minister: please share the government's advice that you received from the Solicitor-General. We want to see it tabled in the parliament. We believe it is a fair and proper ask that you provide it to all members in this chamber. We do not believe that this request is unusual, onerous or without justification. The government's approach to this bill is another glaring example of why we need parliamentary oversight of intelligence agency operations.

Debate adjourned.