Tuesday, 23 July 2019
Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019; Consideration in Detail
by leave—I move:
(1) Schedule 1, page 3 (after line 9), after item 1, insert:
1A At the end of Part 4
30A Certain reports and briefings
(a) a report by the Independent National Security Legislation Monitor referred to in subsection 29(1) or 30(1) relates to a review of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019, or a report relating to that Act is otherwise prepared in the course of the Independent National Security Legislation Monitor carrying out the functions in subsection 6(1); and
(b) the Committee on Intelligence and Security requests, in writing given to the Independent National Security Legislation Monitor, a copy of the report;
the Independent National Security Legislation Monitor must give the Committee a copy of the report, or a copy of extracts from the report that deal with that Act.
(2) If the Committee on Intelligence and Security requests a briefing in relation to the report or extracts, the Independent National Security Legislation Monitor must give the Committee such a briefing.
As with the other recommendations made by the Joint Parliamentary Committee on Intelligence and Security, recommendation 6 of the committee was a unanimous recommendation made by all six of the Liberal members of the committee and the five Labor members of the committee. Recommendation 16 is to the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019 rather than to the substantive bill, because it relates to a particular aspect of the interaction between the Independent National Security Legislation Monitor and the new powers that have been conferred by this legislation. What recommendation 16 of the committee was directed at was enabling the Independent National Security Legislation Monitor to provide a copy of the reports made by the monitor at the same time as the reports are provided to the Prime Minister.
The committee also recommended that the monitor should be empowered to brief the Parliamentary Joint Committee on Intelligence and Security on his or her findings. Honourable members will bear in mind that this very national security legislation monitor is the agency that this government was committed to abolishing when it came to office in 2013. It was only after a number of the crossbenchers in the Senate were persuaded of the worth of the Independent National Security Legislation Monitor, an agency created by the previous Labor government, that the then Abbott government was prevented from abolishing in Independent National Security Legislation Monitor.
We've seen over the course of successive years, since this government tried to abolish in Independent National Security Legislation Monitor, the worth of the Independent National Security Legislation Monitor. It's a very useful reviewing mechanism. It's a very useful safeguard. It's a very useful level of scrutiny that's provided. All three of the national security legislation monitors to date have been very senior barristers, the first being Bret Walker SC; the second being Roger Giles QC, a former judge of the Court of Appeal in New South Wales; and the third eminent barrister, occupying the position as we speak, being James Renwick SC.
This recommendation went directly to the oversight of the use of these new temporary exclusion orders, or the new powers, that would be created by this legislation. The oversight of these new powers would be via the parliament through the Parliamentary Joint Committee on Intelligence and Security. The government has not accepted this recommendation. That's an extraordinary non-acceptance. Again, as with a whole range of the recommendations that were made by the committee in respect of the substantive bill, the government—neither through the Prime Minister nor through this Minister for Home Affairs—has not sought to explain the failure of the government to accept the unanimous recommendations of the committee, which is chaired by the member for Canning, a Liberal member of parliament, and on which there is a majority of Liberal members—six out of 11.
It is particularly surprising in the case of recommendation 16 that the government has chosen not to accept it. Recommendation 16 is consistent with recommendation 23, paragraph 2 of the 2017 Independent intelligence review, which was conducted by Michael L'Estrange and Stephen Merchant. That's a regular review. They take place roughly five or seven years apart. The 2017 Independent intelligence reviewwas, as I said, conducted by very senior former public servants, Michael L'Estrange and Stephen Merchant. It recommended that the role of the Parliamentary Joint Committee on Intelligence and Security— (Time expired)
I will just go to what the 2017 Independent intelligence review recommended. They recommended that:
The role of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) be expanded—
Which was so that the committee could:
… request a briefing from the Independent National Security Legislation Monitor … to ask the Monitor to provide the PJCIS with a report on matters referred by the PJCIS, and for the Monitor to provide the PJCIS with the outcome of the Monitor's inquiries into existing legislation at the same time as the Monitor provides such reports to the responsible Minister …
This government doesn't like safeguards; this government doesn't like scrutiny; it doesn't like any independent bodies being involved in reviewing any of its actions. And that's presumably why the government is not acting on this recommendation either, as it didn't act on the other recommendations of the intelligence committee to which I've already referred.
But what is really surprising is that, when the 2017 Independent Intelligence Review was released to the public, the then Prime Minister, Malcolm Turnbull, as he stood next to the minister who is now the Minister for Home Affairs, said that the government had accepted the recommendations of the review. Now, two years on, in rejecting another part of the recommendations, the government says it's still considering the recommendations of the 2017 Independent Intelligence Review. So what's changed? Maybe what's changed is that Prime Minister Turnbull got the sack in a coup led by the present Minister for Home Affairs. Maybe that's the reason why the same government, having said that it accepted the recommendations of the national intelligence review, is now saying it doesn't, because it's still considering it. Maybe that's what changed. I would suggest to this parliament that, almost two years after the public release of the independent national intelligence review, in 2017, it's time for the Minister for Home Affairs to stop pretending to consider things and start doing his job. Yesterday we saw the extraordinary delay that the minister engaged in to release, some two years late, the statistics on the metadata scheme. Let's hope that we don't have to wait another two years for the already completed stats for the next year of the metadata scheme.
But what we have here is an amendment that would fully implement the very sensible, very modest and unanimously agreed 16th recommendation of the Intelligence and Security Committee, namely: an amendment which would, in accordance with the recommendation of the intelligence committee, allow the intelligence committee to do the job that the parliament set it up to do, to do the job that the Independent Intelligence Review said that it should do and said should be expanded, in the form of it being able to engage with new powers when new powers are conferred on the government or the government's agencies—that there be adequate scrutiny of new powers when they're created, that there be adequate scrutiny by the Independent National Security Legislation Monitor, and that the Parliamentary Joint Committee on Intelligence and Security should be able to interact with that other scrutiny process. It's a scrutiny process that has already proved its worth. It's a scrutiny process that we've seen since the Independent National Security Legislation Monitor was created in 2010. It's in the form of annual reports by the Independent National Security Legislation Monitor and in the form of briefings provided by the Independent National Security Legislation Monitor—all three of them—to the Parliamentary Joint Committee on Intelligence and Security. It's a process that has improved the visibility of the use of powers. It has improved public confidence in the use of those powers—many of them extreme powers that have been given to agencies. Public confidence is a very, very important aspect of any national security regime. This government doesn't appear to care at all about building public confidence. Building public confidence in the work done by our agencies to keep us safe and building public confidence in the way extreme powers are often used, and often in secret, is a very important part of any national security system in what should be an open and participatory democracy such as our own.
To have this government reject a perfectly simple recommendation, unanimously made by Liberal and Labor members of the committee, without explanation is absolutely symptomatic of the inadequate and incompetent approach this government has taken to the presentation of this bill to the parliament. Not content with waiting some 3½ years past the time at which the United Kingdom parliament had provided a model of this kind of power in the form of their temporary exclusion orders legislation, not content with announcing late last year, in late 2018—presumably the Minister for Home Affairs was too busy knocking off the sitting Prime Minister—not content with waiting until then to even announce that the government was going to do something, the government had us wait until February of this year for it to introduce the previous form of the bill. At that time the government said it was a matter that the intelligence committee should consider urgently. The intelligence committee did consider it urgently. It reported to the parliament shortly before the election was called and in its report made some 19 recommendations, which the government, regrettably, is now self-evidently—because of the position taken by this Minister for Home Affairs in coming into the parliament—thumbing its nose at. That's the only way in which it can be put.
The government has failed to explain why it is not giving effect to some 10 or 11 recommendations of the committee. The government is not even showing the respect this parliament deserves, let alone the respect the Australian community deserves. When we've had a process, when the process has been conducted urgently by the intelligence committee, when there are sensible, practical recommendations that you've only got to read to see how sensible and practical they are and when you've got recommendations that will improve the working of the legislation, that will make Australians safer, that will build public confidence in the operation of these new powers, it's incredibly disappointing to see the attitude that has been adopted by the Prime Minister and by this Minister for Home Affairs, who seem to think—on this occasion as, regrettably, on so many other occasions—that national security is their plaything, that national security is something they can use to score cheap political points, that national security is something they can bring to this parliament to, in their words, 'set up a test for Labor'.
Well, enough of that. Enough of this setting up a test for Labor. We call on the government to legislate and to use the processes of this parliament for the national interest of this country. We call on this government to actually consider the national interest and to stop its pathetic political rhetoric of 'this legislation sets a test for Labor'. Before you get to say that, you've actually got to explain what the bill's for. Before you get to say that, you've actually got to explain why you're choosing to ignore the unanimous recommendations of a bipartisan committee. Before you get to say that, you have to actually explain why the legislation is needed. This incompetent Minister for Home Affairs has done none of those things.
I urge the government to agree to this amendment to the consequential amendments bill that is now before the House. It's your last opportunity to do the right thing. Again, it's disappointing that the chair of the committee, the member for Canning, hasn't seen fit to back in the recommendations that he agreed to in April and that the member for Berowra or the member for La Trobe haven't seen fit to come into this place and back in the recommendations they agreed to. It's another opportunity the government should take to agree to this amendment.
I rise to say thankyou to all those honourable members who have contributed to this debate. This is a very important debate. I acknowledge the contribution of the member for Isaacs. Nobody who reads the Hansard of this debate will truly appreciate how much the member for Isaacs enjoys the sound of his own voice.
Many of the claims he has made are completely spurious and factually incorrect. Sadly for the Labor Party, for a long period of time, they have used the PJCIS as a management tool for the member of Isaacs. It is an opportunity for Labor to try and move him from the caucus, where it must be painful for any attendee to listen to his regular bombastic contributions. The fact is that that will no longer be tolerated.
This government is operating in the national interest when it comes to national security matters. We are not going to have our bills that are important to keep Australians safe watered down by this individual. That's what might have happened in the past, and perhaps the member for Maribyrnong used that as an opportunity to try and keep this member for Isaacs in check, but this government will not tolerate it. We are going to work with the committee. We will look at the recommendations made by the committee in relation to the relevant legislation that they might explore, and we will ultimately decide, in our country's interests, in an attempt to keep Australians safe, which of those recommendations we accept.
Ultimately, the government has been elected on a mandate to provide legislation to this parliament to protect Australians from a very real threat. We know that, since 2012, around 230 Australians have travelled to Syria or Iraq to fight in the name of ISIL. Though many have died in their attempts, many of those who survived intend to return to our country. Indeed, the advice of our national security agencies is that, following the recent collapse of Islamic State's territorial control in Syria and Iraq, many of these people will be seeking to return to Australia in the very near future.
The threat that is beyond our shores, as we know, is also here in Australia. In fact, since September 2014, when the national terrorism threat level was raised, our police and security agencies have thwarted 16 attempted attacks on our own soil. Tragically, seven were not thwarted, and innocent people going about their daily lives were killed and injured. There are around 50 offenders now in Australian prisons serving sentences for terrorism related offences. It's against this backdrop that the government has introduced this bill and advocates for its passage in order to keep Australian communities safe from those who seek to do us harm. That will continue to be this government's No. 1 priority.
The government is committed to putting in place all measures necessary to ensure the safety of Australians. We must do all we can to protect our communities from persons whose intent is to cause death and/or destruction of the most heinous kind. I'm confident that I speak for members on both sides—or the vast majority of members on both sides of this chamber—when I say that we will never hesitate to stand up for Australians and we will never soften our stance against terrorism.
This bill recognises and responds to the significantly increased risk that Australia now faces from returning foreign fighters. The TEO scheme, which the bill establishes, will ensure that, if an Australian of counterterrorism interest does seek to return to Australia, it is with adequate forewarning and into the hands of authorities. The TEO scheme will ensure that agencies have sufficient time to assess the potential risk of an Australian citizen of counterterrorism interest before that person returns to Australia. The TEO scheme will also assist our national security and law enforcement agencies to monitor such individuals when they do ultimately return to Australia. Put simply, the TEO scheme is designed to ensure that authorities can manage those returns in a way that keeps the Australian community safe.
The minister may make a TEO that prohibits an Australian of counterterrorism interest from entering Australia for up to two years, except with a return permit. The minister must issue a return permit within a reasonable period if a person applies or if a person is being deported or extradited to Australia. The return permit may contain conditions such as specifying when and how the person must enter Australia. It may also specify conditions which the person must comply with once in Australia, such as requiring the person to give notice of where they live or where they work. A return permit remains in force for up to 12 months after the person's re-entry into Australia. It will be an offence punishable by up to two years imprisonment for a person to return to Australia in breach of a TEO or return permit or to fail to comply with conditions of a return permit. The bill contains a range of appropriate safeguards. The government has been mindful in developing the bill to ensure that it appropriately addresses the needs to protect the community from foreign fighters while ensuring oversight and accountability on the TEO decision-making process.
The legislation is the product of careful consideration. It is based on the advice of our security agencies and the Solicitor-General and is modelled on the UK's TEO scheme. The legislation has been reviewed by the committee and the committee's recommendations have been substantially incorporated into the bill. All TEOs will be subject to review by an independent reviewer and that person, or that authority, is either a former judge or a serving senior AAT member. Conditions imposed under a return permit will be tailored to the individual in accordance with the risk they pose to the community. Special safeguards apply to persons aged 14 to 17.
In conclusion, I would like to thank the Parliamentary Joint Committee on Intelligence and Security for its recommendations. As I say, the bill substantially reflects the recommendations of the PJCIS, including to provide four significant additional safeguards and independent oversight. I also thank the colleagues across both sides of the chamber for recognising the need for these important measures.
It's important to note that the member for Isaacs, the Labor Party representative in this debate, has moved 41 amendments to this bill, has claimed it to be unconstitutional and has opposed this bill at every step, right up until the 11th hour to the point where the member for Isaacs realised—or I suspect the Leader of the Opposition realised—that there was support from the crossbench in the Senate for this bill to secure passage. All of a sudden, the member for Isaacs decided to support this bill. Let's not be in any doubt about what has happened here. Begrudgingly, I suspect under stern instruction from the Leader of the Opposition, the member for Isaacs has moved his 40 amendments but ultimately is required to support this bill.
This bill must be supported in this place and in the other place. The bill sets the terms by which Australians of counterterrorism interest return to Australia, gives authority over when and how they enter Australia and provides checks on them when they are here. In relation to the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019, the bill complements the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 by introducing additional accountability and transparency measures for the temporary exclusion order scheme in response to the recommendations made by the PJCIS. Specifically, it provides that it is a function of the committee to monitor and review the exercise of power under the scheme and to review the operation and effectiveness of the scheme within three years of its commencement. The bill also enables the Independent National Security Legislation Monitor to review the operation, effectiveness and implications of the scheme. The passage of that bill will assist in ensuring that there is an appropriate balance between those critical measures needed to protect the Australian community and the safeguards and accountability measures necessary to ensure public confidence in the TEO scheme.
In particular, can I say thank you to and acknowledge the tireless effort of staff from the Department of Home Affairs, from ASIO, the Australian Federal Police, the Office of Parliamentary Counsel and all of those people who have been involved in putting in a significant effort to work on this legislation. Also, I'd like to record my thanks to the PJCIS for their ongoing work. I very much commend this bill to the House.