House debates

Tuesday, 23 July 2019


Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019; Second Reading

12:05 pm

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

I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) notes that:

(a) the Government has failed to implement in full at least 10 recommendations of the bipartisan Parliamentary Joint Committee on Intelligence and Security, without explanation;

(b) this is the first time since 2013 that this Government has ever openly rejected recommendations of the bipartisan committee; and

(c) this rejection constitutes a significant breach of the compact between the Opposition and the Government on national security bills, which is premised on an understanding that the recommendations of the bipartisan committee are to be respected and implemented; and

(2) is of the view that:

(a) it is not the job of this Parliament to act as a rubber stamp for Government bills; the Parliament's job is to get legislation right;

(b) this bill should therefore be amended so that it conforms faithfully to the detailed recommendations of the bipartisan Parliamentary Joint Committee on Intelligence and Security; and

(c) this bill should be referred back to the bipartisan Parliamentary Joint Committee on Intelligence and Security for further scrutiny".

When the Hawke government introduced legislation in 1986 to establish the first parliamentary committee to oversee Australia's intelligence services, the then Deputy Leader of the Liberal Party expressed outrage. He declared that the then Labor government's modest proposal for parliamentary oversight gave one:

… very grave doubt about whether they are loyal to this country.

Seriously! The National Party MP Peter McGauran, who would go on to become a cabinet minister in the Howard government, called the Hawke government traitors during the same debate. Some things never change. In relation to the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Senator Mathias Cormann told reporters yesterday:

The Labor Party needs to decide which side they're on. The Australian government, we are on the side of keeping Australians safe.

This Prime Minister backed those comments. I need to make a few things clear. When Labor stands up for parliamentary oversight and scrutiny of legislation to ensure that laws operate as intended, do not result in unintended and undesirable consequences and are subject to proper safeguards, the Liberals resort to cheap smears and questioning of allegiance.

The parliamentary committee established by the Hawke government in 1986 is now called the Parliamentary Joint Committee on Intelligence and Security. A lot has changed since then. The Liberals have liked to say that they respect the role of the Parliamentary Joint Committee on Intelligence and Security. And, in fact, up until the end of last year, I think it was fair to say that the Liberals lived up to what they say they like to do, which is to respect the recommendations of the Parliamentary Joint Committee on Intelligence and Security on which, of course, they have a majority. There are 11 members of the Parliamentary Joint Committee on Intelligence and Security—five senators and six members of the House of Representatives—and six of the members of the committee are from the government. It's a government controlled committee. And consistent with that, up until the end of, really, 2018, when we got into difficulty over the assistance and access bill, this Liberal government, now in it's third term, has not openly rejected a single one of the committee's recommendations to improve national security bills.

When they failed to implement all of the recommendations of the committee, in relation to the assistance and access bill, in December of 2018 the Prime Minister and the Minister for Home Affairs—perhaps because of their repeated claim that they liked to respect the recommendations of the Parliamentary Joint Committee on Intelligence and Security—felt compelled to at least pretend on that occasion that they had fully implemented all of the committee's recommendations, and they haven't stopped pretending completely.

On this bill, the Minister for Home Affairs has made the claim—it's a false claim but it's his claim—that the government has only rejected two of the committee's recommendations in relation to this bill. That's what he said in his largely misleading second reading speech given on 4 July in respect of this bill. It's regrettable that the minister has chosen to simply gloss over the very detailed work that what was done by the Parliamentary Joint Committee on Intelligence and Security, detailed work that was done at the urging of the government in a great hurry, because although this bill is claimed by the government to be modelled on an English piece of legislation, that English piece of legislation was passed in 2015. This government announced that it was going to do this legislation late last year. They finally got around to bringing legislation into the House in February. They insisted the parliamentary joint committee conduct urgent hearings and provide an urgent report, which the committee did. The committee worked hard together in its bipartisan fashion, as the committee has done for so long, to produce 19 recommendations, the 19th of which was that the bill be passed. But, regrettably, of the 18 remaining recommendations, in the first sitting fortnight of this 46th Parliament we have this Prime Minister proposing to reject 10, and possibly 11, bipartisan recommendations that related to this bill.

It doesn't actually stop with this bill. Just to mention it, on a separate bill that we are going to be debating during this sitting fortnight, which is the sunsetting of special powers relating to terrorism offences bill, the Prime Minister's proposing there to reject two bipartisan recommendations of the Parliamentary Joint Committee on Intelligence and Security.

With a wave of the hand we've had the Prime Minister and his Minister for Home Affairs breaching the compact that has existed for so many years between the coalition and Labor on national security legislation, which is based on the understanding that the recommendations of the committee are to be respected and implemented. This is no small thing that the government is doing in breaching this compact.

The national interest is served by this committee working to achieve bipartisan recommendations. The national interest is served by this committee working in a bipartisan fashion, because when that occurs it builds the confidence of the Australian community that the national security laws, which is being passed in this place—many of which provide extraordinary powers for our agencies and many of which permit our agencies to act in secret on our behalf—are good laws, are appropriate laws and are laws that are truly going to work in the national interest.

Before continuing, I'd like to say a little bit more about the way in which the government has sought to frame this debate and the techniques that they've employed to do it. Techniques that include the impugning of the motives of anyone who disagrees with them, and misleading journalists and misleading the Australian people about what the bill does, who it would apply to and why it's needed.

In his eulogy to Bob Hawke, delivered recently, the Prime Minister of Australia declared:

… we will rightly honour his many achievements for our economy, for our security, for Indigenous Australians, for our society, and Australia's place in the world.

And as a Liberal, I'm honoured to acknowledge these achievements, as I know others would be.

But if the Prime Minister, who lauded Hawke's many achievements for the security of Australia, had been in the parliament in 1986 would he have joined his Liberal colleagues to ask Bob Hawke whose side he was on?

As Prime Minister, Bob Hawke understood the need to keep this nation safe. Labor, to this day, understands the need to keep this nation safe. Bob Hawke understood that in a democracy the job of parliament is not to act as a rubber stamp for government bills. The job of this parliament is to scrutinise legislation. The job of this parliament is to debate legislation. The job of this parliament is to improve legislation which is brought to it by the government. That understanding did not make Bob Hawke weak. It made him strong and it made Australia strong.

This government seems to have completely lost its way in understanding what the role of this parliament is and what the role of parliamentary committees is. I hope that those on the other side, the Liberal members of the House of Representatives who are members of the Parliamentary Joint Committee on Intelligence and Security—one of whom, the member for Berowra, is present in the chamber right now—will understand that it's incumbent on them to back in the recommendations that they made to the parliament. And when they have agreed, in unanimous recommendations—and we have there also the chair of the committee, the member for Canning, Mr Hastie—when they have signed up to those recommendations, I am expecting to hear from them in this debate that they back in the recommendations that they made not two years ago, not one year ago, but in April of this year.

The government has come in. The Minister for Home Affairs has read an extraordinary short second reading speech. He hasn't explained why it is that the government is ignoring the recommendations of the committee. He's put forward no evidence to this parliament, let alone agreed for the matter to go back to the committee, which is what should happen. The minister has put nothing before the parliament as to why these recommendations—all 11 of them—that the government is ignoring should be ignored, disagreed with or changed to something quite different. Make no mistake, the bill that's before this parliament is a very different bill to the bill that was brought to the parliament in February and examined by the Parliamentary Joint Committee on Intelligence and Security. And it's not a different bill because the government has chosen to accept the recommendations of the committee; it's a different bill because the government wants to make it different, for reasons that it is choosing not to explain to this parliament and to the people of Australia.

This Liberal Party, including the so-called constitutional conservatives in their ranks, appear to be unable to grasp basic principles about the functioning of this parliament and the functioning of the Parliamentary Joint Committee on Intelligence and Security. You would think that the very least this incompetent Minister for Home Affairs might think he should do when coming to the parliament with a bill that is different from the bill that was brought in in February would be to deign to explain to the parliament why it's different, perhaps in an attempt to at least convince his own members—the Liberal members of the House of Representatives who are members of the parliamentary joint committee—as to why the bill, in the form in which he's bringing it to the parliament, should be supported. But instead of engaging in argument, instead of playing the proper role that a minister of the crown should be playing in this place, we see this Prime Minister and all of his ministerial colleagues resorting to the same cheap smears about patriotism and loyalty to this country.

There is a very long and very sorry history of accusations of treason or disloyalty being thrown about for base political purposes, and worse. I have in mind authoritarian governments around the world that throw those accusations around. By going down that path, this government is aping a political technique that's been used by some of the worst regimes in history.

It's a sorry day that this Liberal Party has come to—that they will behave in the way that they are choosing to behave on this bill. And I say to the Prime Minister: 'You, Prime Minister, need to stop it. You need to tell your ministers to stop it. You need to remember that you are governing for Australia, governing for the Australian people and not constantly looking just to score a cheap headline.' That's all we've seen from this Prime Minister since the day that he was elected Prime Minister by the Liberal Party. We've certainly seen no change from looking to score cheap political points and looking for the cheap headline. They are seeking to say all the time, not that they are governing for Australia, not that legislation is being brought in because it is in the national interest but that the legislation presents a test for Labor. That is no way to use the processes of this parliament. This parliament is not set up to provide a test for the political opposition of Australia and it's not set up to provide a test for Labor; it's set up so that this parliament can bring into law legislation that is actually in the national interest, and that's what we expect to hear from this government.

When Labor was last in government, we kept Australians safe. There was not a single death due to an Islamist-inspired terrorist attack in Australia during Labor's six years in office, between 2007 and 2013. By contrast, seven Australians have lost their lives to terrorist attacks on Australian soil in the six years since the coalition came to power. If those lives had been lost under a Labor government, I have no doubt that this incompetent Minister for Home Affairs would say that the blood of those Australians was on my hands or on my colleagues' hands. Regrettably, from his conduct I have little doubt that the Prime Minister would stand behind his Minister for Home Affairs. But Labor does not engage in that damaging rhetoric. I will not engage in that sort of rhetoric now, because all of us in this parliament love Australia. All of us in this parliament want Australians to be safe and secure, all of us want to see Australians prosper, and none of us want to see Australia lose its character as a confident, free and democratic country. Let's have no more talk that suggests anything other than that sentiment—the belief, the feeling of every single member of this parliament.

The debate over this bill, and over every other national security bill that comes to be debated in this place, is not, and it never is, a debate over 'Whose side are you on?' It's a debate about how: how do we ensure that our agencies have the powers they need to keep Australians safe; how do we ensure that the powers that we are choosing to give to our agencies will not be abused or misapplied; how do we balance Australia's national security with the need to uphold the rule of law and the rights and freedoms that define us as a democratic nation? Labor's concerns with this bill—the form in which it was brought to the parliament by the Minister for Home Affairs on 4 July—are about how. We are concerned that this bill may be unconstitutional. The government has done nothing to address those concerns. I pause on that for a moment. In the additional comments that Labor members made in the report of the Parliamentary Joint Committee on Intelligence and Security—and it's rare for Labor members to make additional comments; usually the reports are simply unanimous reports and there's no additional comment, unlike in many reports of committees of the Senate—was this:

While we have ultimately decided to recommend that this Bill be passed (with amendments), Labor members are concerned that a number of issues have not been adequately scrutinised by this Committee in the limited time available.

Most fundamentally, Labor members note that the President of the Law Council of Australia, Arthur Moses SC, and Professor Helen Irving (among others) have stated that the Bill is unconstitutional on the basis that it infringes the constitutional right of abode. Neither the Department of Home Affairs nor any other government representative has sought to engage with - or has disagreed with - the arguments put forward by Mr Moses or Professor Irving.

Clearly, Australians are not made safer by laws found to be unconstitutional. The Committee has sought to address the constitutional concerns that have been raised by submitters by recommending that the government obtain legal advice from the Solicitor-General (or equivalent) on the constitutional validity of the final form of the Bill. Labor members of the Committee do not believe this recommendation goes far enough.

The reason for that is that this government has form for misleading the committee, for misleading the parliament and for misleading the people of Australia about the constitutionality of an earlier national security bill. We know that because the former Solicitor-General, Justin Gleeson SC, said so in a Senate committee inquiry hearing. He explained that the former Attorney-General, Senator Brandis, had misled the committee, this parliament and the public of Australia as to his own—that is, Mr Gleeson's—advice about the constitutionality of a particular piece of legislation.

It's not good enough for the government to simply assert, 'Nothing to see here' or 'No problems here.' Cogent arguments have been put forward in public by eminent constitutional lawyers. This government owes it to the parliament to explain why this bill is in fact constitutional. Up until now, it has done nothing of the kind.

We are concerned that the bill as presented to parliament contains basic drafting errors. That was so in respect of the bill the committee reported on in April. The government has refused to fix those basic drafting errors. We are concerned that the government has released at least 10 and probably 11 recommendations of the Intelligence and Security Committee without any explanation, because nothing in the second reading speech—the short second reading speech—that was made to this place by the Minister for Home Affairs on 4 July goes even close to explaining why the government has rejected these recommendations.

We are concerned that the government is falsely claiming that it is rejecting only two recommendations of the committee, as if to minimise the significance of the government's breach of bipartisanship on national security. I hope we are going to hear from all three of the Liberal members of the committee who unanimously voted for the recommendations the committee made on a bipartisan basis. I hope we're going to hear from all of them. I see that the member for Berowra is next in line. No doubt he's going to be telling this parliament that he intends to cross the floor to support the amendments we have foreshadowed. I see the minister's adviser looking anxiously from the box towards the member for Berowra, perhaps worrying that he might in fact cross the floor to keep faith with the recommendations he made as a member of the committee! And he has to, because he wanted the bill to be amended in the fashion the committee set out in its report, and it'll be very disappointing if we don't hear support from the member for Berowra as to why the government has got this wrong.

We are concerned that in an effort to avoid debate on the very considerable merits of the committee's recommendations the government has resorted to misleading journalists and the Australian people about what the bill does, who it would apply to and why it's needed. Our overriding concern is that the government is more interested in playing politics with the national security of Australia than it is in getting national security laws right. And let's be clear—I need to state it again—Labor supports the intent of this bill; we want to work with the government to get this bill right.

The amendments I'll be moving in respect of the temporary exclusion orders bill and the temporary exclusion orders (consequential amendments) bill will ensure that the bill conforms to the unanimous and bipartisan recommendations of the Labor and government members of the intelligence committee—no more, no less. But we don't pretend that our amendments address every concern that's been raised about this bill. For instance, it's been increasingly suggested that the use of the powers in the bill could in some circumstances actually increase the likelihood of innocent Australians being the target of terrorist attacks overseas. Clearly a suspected terrorist who has freedom of movement in a foreign country will pose a much greater danger to innocent Australians than the same person would pose to Australians from a prison cell at home. We've seen numerous examples during the time that the caliphate was ruling over Raqqa province in Syria. We've seen numerous examples of Australian nationals broadcasting messages to Australians at home, from Raqqa, in an endeavour to recruit them to the Islamist cause, to the cause of ISIL.

One could want no better example than the recruiting activities of Neil Prakash. He is an Australian who served in the forces of ISIL and who is now languishing in a Turkish jail. He is the subject of an extradition request by Australia which, I would hope, will again be activated when Mr Prakash has served the prison term that's been imposed on him by a Turkish court. We can find no better example than the activities of Mr Prakash. He has broadcast to Australians using, in particular, social media and other resources of the internet to endeavour to recruit them to carry out acts of terror here in Australia or to travel and join him in the service of Islamic State in Raqqa province. Happily, that's a regime that has now come to an end.

The government really needs to consider that these bills, if the provisions contained in them become law, create only a discretionary set of powers. I would be urging the government, and Labor would be urging the government, to ensure that if these powers do become part of Australian law they are used sparingly. I need hardly remind the government and this parliament that the greatest loss of Australian lives in a terrorist attack did not happen on Australian soil but in Bali. Many more Australian lives have been lost to terrorism overseas than on our shores. That's why we've had the call from our great ally the United States of America through its secretary of state Mike Pompeo. He has called on all countries of the world who have nationals in camps in Syria or detention centres that are maintained in Syria to take their nationals back.

We in Labor accept the need for a power, in some form, to enable the management of what now appears to be a very small number of Australians who are seeking to return to Australia after having engaged in terrorist acts overseas—Australians who have fought with ISIL, Australians who have put themselves at the service of the caliphate and engaged in terrorism there. It's apparent from Mike Pompeo's words and from those of other officials of the United States government, and from officials of the Kurdish regime, that they want countries to take their nationals back. They are concerned about the impact of those people who have been engaged in terrorism and continue to be at large posing a threat not only to Australians overseas but also, potentially, still, to Australians here in Australia—and to all peoples of the world—if they are not brought under control, if they are not brought back and charged with the criminal offences that, under our law, they committed in Raqqa, in the service of the caliphate. That's primarily what ought to happen.

At the moment, regrettably, the government's bill does not even require the minister to turn his mind to the risks posed to innocent Australians overseas. That's one of the reasons why we are asking for this bill to be referred back to the intelligence and security committee for further scrutiny. It's one of the reasons the Prime Minister should agree to this request, that the bill be referred back to the committee.

Labor is focused on working towards a bill that will withstand constitutional challenge, a bill that is subject to appropriate safeguards and oversight and a bill that does what it intends to do—that is, keep Australians safe. We ask the government to abandon the cheap politics, to start acting like a government that governs in the national interest and to join us in this endeavour.

Photo of Rob MitchellRob Mitchell (McEwen, Australian Labor Party) Share this | | Hansard source

Is the amendment seconded?

Photo of Chris BowenChris Bowen (McMahon, Australian Labor Party, Shadow Minister for Health) Share this | | Hansard source

I second the amendment and I reserve my right to speak.

12:35 pm

Photo of Julian LeeserJulian Leeser (Berowra, Liberal Party) Share this | | Hansard source

I'm speaking in favour of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 as presented by the minister and against the amendment that was presented to us by the member for Isaacs. As the member for Isaacs pointed out, I do serve on the Parliamentary Joint Committee on Intelligence and Security, and he is right: it is a very important committee of the parliament. But what makes it a very important committee of the parliament is the subject matter that it deals with. It deals with national security. It deals with highly sensitive issues. The committee gets top secret briefings. It holds its hearings in camera as well as in public, and we seek, as every committee in this parliament does, to analyse and scrutinise bills.

I've spoken on many occasions in favour of the good work that the committee does. But the Parliamentary Joint Committee on Intelligence and Security is, like every other parliamentary committee in this place, a committee. It is subordinate to this parliament. It can make recommendations that can be accepted in toto, accepted in part or rejected. I've sat on plenty of committees where reports have come up and they've been accepted in part, as is the case with this particular set of legislation, on other committees where reports have been rejected and on other committees where they've been accepted in toto. I've seen Labor members sit on committees which have had recommendations accepted in part, and they have subsequently voted for the legislation. The committee discharged its function here by examining the bill. It was a matter for the government to determine what it wanted to put before this House, and the government determined the matters it wanted to put before the House. I support the bill as presented by the government.

I would like to make some broad comments in relation to the bill. In September 2014, Australia's national terrorism threat level was raised for the first time since 2002. This public alert system has since sat at high, denoting that a terrorist attack is likely. The threat of terrorism in this country is clear and tangible. Over the five years that have followed, our security, intelligence and law enforcement agencies have disrupted 16 attempted terrorist attacks in this country. The most recent was on 3 July when three men were arrested in Sydney over their planned hostilities in connection with ISIL.

On the one hand, this is a figure to be applauded. It's the product of thousands of dedicated officers, agents and intelligence experts working around the clock to keep Australians safe. It's the product of a more than $3 billion increase in security funding that our government has secured since 2014. This year we've provided the AFP with an additional $512 million for counterterrorism and combatting transnational crime. On the other hand, this figure is deeply alarming. The indiscriminate threat of terrorism creates fear. Protecting all Australians from people who seek to harm us must be, and indeed is, our government's most critical task. These bills are essential to achieving this. They are time-critical additions to our existing matrix of national security laws.

Since 2012, we have seen close to 230 Australian citizens travel to Syria and Iraq to engage directly with and assist extremist organisations. Approximately 80 of these citizens are still active in conflict zones. Many of the fighters have taken their families, partners and children with them, and they've been given a chance to learn, as the Minister for Home Affairs has put it, the art of terrorism. They have been given the chance to undertake violent offences against Australian troops. They've been given the chance to support the extremist groups with resources and knowledge. They've been given the chance to learn how to construct improvised explosive devices, or IEDs. Now, with the collapse of Islamic State's territorial control, these people are in a position where they want to return home to Australia. Media reports suggest that many have returned home and others will be seeking to return home in the near future.

Although many of these people are of counterterrorism interest, under article 12.4 of the International Covenant on Civil and Political Rights, it is their right, as Australian citizens, to return to Australia. The proposed TEO scheme doesn't arbitrarily deprive these people of the right to abode. Instead, it necessarily gives the government an effective means to monitor and regulate the return of these fighters, keeping the protection of our Australian community a paramount consideration. These changes are sensible and deserving of bipartisan support. Likewise, the scheme's orders are subject to reviewing authorities. In accordance with international covenants which Australia has ratified, it also has specific provisions which consider the best interests of children directly or indirectly implicated in these extremist activities.

Since it was introduced in the last parliament on 21 February, the TEO scheme has been amended to include some of the recommendations of the Parliamentary Joint Committee on Intelligence and Security. As a member of that committee, let me state again, as the chair has done, that I too am satisfied with the government's response to that report. The government is not bound to accept all the recommendations of the PJCIS, as it is not bound to accept the recommendations of any committee. As my colleague, the member for Canning has stated, the most significant compromise is over judicial review. The government has accepted that and, on that basis, I think we can move forward as a parliament and pass the bill.

A temporary exclusion order allows the Minister for Home Affairs to delay the entry of an Australian citizen of heightened terrorism risk for up to two years without a return permit. Consistent with division 104 of the Criminal Code, the person must be at least 14 years of age. This ministerial discretion is not unfettered. The minister may issue a TEO if our Australian security agencies have assessed the person as a direct or indirect risk for reasons relating to politically motivated violence and have advised the minister therein or if the minister suspects on reasonable ground that a TEO would substantially assist in preventing a terrorist attack, preventing a person from being trained by a terrorist organisation and/or preventing a person from assisting a terrorist attack or terrorist organisations.

The mutually exclusive nature of these two circumstances is crucial. Fighters are seeking to return home from overseas conflict zones. These threats are in a constant state of flux. The highly nuanced case-specific challenges posed, and the relay of information between Australia's security agencies and the Department of Home Affairs, is such that the minister must act urgently as soon as a threat becomes apparent.

Reviewing authorities provide a safeguard for the exercise of the minister's powers. Under the scheme, TEOs don't come into force until a reviewing authority has assessed the legality—as opposed to the merits—of the minister's decision to issue the order. This authority, being a retired judge or a senior member of the Administrative Appeals Tribunal, is independent, providing additional accountability in the scheme. Judicial review will also be available through the Federal Court or the High Court of Australia. If the reviewing authority determines the minister's decision to be unlawful, the TEO will be taken never to have been made. The authority will have access to all information that is in the public interest. However, if insufficient information is provided, it remains open to the reviewing authority to potentially overturn the TEO. This enables the independent authority to reach a well-informed decision while still protecting the sensitivity of Australia's information sources and defence capabilities.

Conversely, the scheme also confers power on the minister to issue a TEO that can come into force immediately. This is vital for situations such as when the return of a high-risk individual is imminent and the minister has just been made aware of that fact. Temporarily delaying return is justified by the urgency of such cases. It is important to note that this decision is still subject to the ordinary reviewing authority process. The TEO can still be struck down at any hour—a day or a week later, for example. However, this simply adds an additional temporary layer of security—a proactive rather than reactive way of mitigating risk in the interim.

One of the greatest tragedies of the Australians who have fought or assisted terrorist groups in Iraq is that some took their families with them or had children while in the service of ISIL. We know that children are vulnerable. By immersing children in ISIL conflict zones, they too may have been given the chance to learn the art of terrorism. They may, as well, bear an increased risk of harbouring radical thoughts. These are the same children who, on application, will return to Australia. Without adequate monitoring, they may put the lives of other Australian children at risk.

However, it is appropriate to balance this concern with the best interests of each child. The TEO scheme reflects this. TEOs cannot apply to a person under the age of 14. If the person is aged between 14 and 17, the minister must regard both the protection of the community and the best interests of the child. But the protection of the community is paramount. Section 10(4) includes additional safeguards. It provides that the age, maturity, culture, lifestyle and physical and mental health of a 14- to 17-year-old, the benefit of them meaningfully connecting with their family, their right to education and their right to practise their religion, among other factors, must be taken into account by the minister when issuing a TEO. This is an effective, sensible balance between a child's vulnerability, Australia's international obligations and vital community protections.

Under the scheme, to enter Australia while the TEO is in force would be a criminal offence punishable by up to two years imprisonment. Facilitating the entry into Australia of a person who has a TEO issued against them may also incur the same penalty. This second offence requires the owner or operator of a vessel or aircraft to have actual knowledge that the individual is subject to a TEO that prohibits them from returning to Australia.

Both these new offences are essential components of the TEO scheme's enforceability. They acknowledge that those returning from their suspended extremist engagements in Syria and Iraq will be subject to the full force of Australian law, should they be in a position to return to this country. These provisions aid in ensuring TEOs are complied with, delaying the passage of foreign fighters so that Australian security agencies have time to conduct their investigations and appropriate conditions can be implemented to keep other Australians safe.

The TEO scheme stands in contrast to control orders. A control order is issued by the courts on consent of the Minister for Home Affairs. It enables the liberty of an individual to be restricted if it substantially helps prevent terrorist attack, or if the individual is trained in, engaged in or convicted of terrorism. The individual can, for example, be prevented from leaving Australia, being in certain areas, communicating with certain people, owning certain items, accessing forms of technology and carrying out certain activities, and they may be required to wear a tracking device.

The TEO scheme has a starkly different function. Its aim is the regulation of these persons of counterterrorism interest that are Australian citizens seeking to return to the country. In areas of active conflict, to compile sufficient evidence for criminal prosecution can be difficult, so most of these individuals have not yet been convicted and are still subject to further investigation and assessment. To reflect this, the second part of the TEO scheme provides for the issuance of return permits and attached conditions.

A return permit must be issued on application of an Australian citizen to the minister, or where the Australian citizen has been deported or extradited to Australia. The minister has discretion to issue a return permit if he or she otherwise considers it appropriate to do so under section 15(2). For example, if there was a natural disaster in Iraq or Syria and the fighter was unable to submit an application, the minister may find it appropriate to issue a return permit so as to evacuate the person to safety. This discretion favourably allows the unique circumstances of each case to be considered.

Similar to a statement of claim, a return permit must be served personally on the person to whom the order relates, or a parent or guardian if the person is between 14 and 17 years old. However, recognising the irrationality of personal service in an active conflict zone, the minister must only comply with the personal service requirement where it's reasonably practical to do so.

Return permits have two main strengths. First, much like division 3 of the Bail Act 2013, section 16 of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 provides for an exhaustive list of conditions that can be attached to return permits. Pre-entry and post-entry conditions are available. Second, a return permit may specify a certain time frame in which a person must return to Australia, delaying their passage by a time reasonably necessary to assess the risk posed by their entry. This delay, however, cannot be for more than 12 months, so, whether a return permit or temporary exclusion order is in force, our communities will remain protected.

At the same time, section 16(8) necessitates that the minister must consider whether the person has a lawful right to remain in the country and whether they are at risk of detention, mistreatment or harm before preventing a person from entering Australia. Post-entry conditions include notifying authorities of certain activities, associations and education. This balances the presumption of innocence and terrorism risk management.

Under the TEO scheme, it's an offence to provide false or misleading information with regard to return permits. The defendant, the foreign fighter, bears the evidentiary burden of proving that the material they provided was not false or misleading. This promotes accountability and favourably reduces public expenditure. The financial impact of this scheme is low, and costs will be met from within existing agency allocations.

To conclude, the TEO scheme addresses the vexed issue of what to do with Australian citizens who have been exposed to terrorism in Syria and Iraq, either by directly participating in terrorism or by virtue of being family members of terrorists. These bills strike the balance of upholding Australia's international obligations while protecting Australian communities from those who've lived and supported organisations whose entire ideology is the destruction of the West and the Australian values we hold dear. Many of these people have been reprogrammed to oppose our way of life, so, although they have a right to return to their country of citizenship, it's crucial to have regulations in place to monitor their return.

These bills are commonsense reforms to Australia's national security framework. They allow the minister, under appropriate supervision, to delay the re-entry of foreign fighters and their families who are potentially experienced in committing terrorism. They also put in place structures to closely monitor and investigate their individual profiles to allay risk once they return home.

I commend these bills, as presented by the minister to this House, and I oppose the amendments that have been put forward by the member for Isaacs.

12:50 pm

Photo of Anne AlyAnne Aly (Cowan, Australian Labor Party) Share this | | Hansard source

I rise to speak on the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and related bill and to add a bit more nuance to the discussion we're having here today by drawing on my experience and knowledge in this area. As the member for Isaacs and shadow Attorney-General pointed out—and I'd like to reiterate this quite strongly—Labor puts the safety and security of Australians first. We do support strong laws. We seek to work in a very bipartisan manner to ensure national security. We have worked for the most part in a very bipartisan manner with the government on these issues.

My concern and the concern of Labor is that the current legislation is not strong, effective and impactful. The other concern, which the member for Isaacs spoke about at length, is the process for these bills. The issues raised point to the fact that, in essence, if the government were to pass these bills in their current form it would in actuality be rejecting the recommendations of its own committee. The PJCIS is run by the government, is chaired by the government and has majority government members. That has historically and traditionally worked quite well in a bipartisan manner with Labor.

I'd like to speak about the broader context of foreign fighters and violent jihadists and the situation we currently have. I'd like to make some points here. This temporary exclusion orders legislation before us gives some precedence and thought to mitigating the very immediate threat violent jihadists, who may or may not have participated in violent warfare, returning to Australia pose to Australia because they retain a particular ideology that may then fuel further violent operations. The member for Berowra spoke at length about people gaining experience in terrorism. I can tell the member for Berowra that there are people with no experience in terrorism who can cause just as much destruction as those with experience in terrorism. That, unfortunately, is the nature of modern terrorism.

Certainly, community safety and mitigating the very immediate threat of returning foreign fighters or returning violent jihadists should be of the utmost importance. There are three points I'd like to make about where the legislation falls short. Australia currently has one of the broadest suites of legislation around terrorism and terrorism related incidences of any Western country. That doesn't necessarily mean that we have a more effective and more impactful legislative suite when it comes to terrorism.

What we have here perpetuates the mistake that we made in believing that al-Qaeda, ISIS and the violent jihadi ideology could be eradicated through traditional military means alone—through the decimation of terrorist capabilities, through the decimation of terrorist training camps and through limiting their financial capacity. What we've seen and experienced is that that is certainly not the case. This is a war for hearts and minds as much as it is a battle on the battlefield.

I'd like to make some points about the TEOs and why we should not only be concerned about immediate community safety but also have medium- and long-term strategies to fight terrorism and eradicate terrorism. The first point I'd like to make on that is that a significant proportion of foreign fighters have a migratory nature. That means that they will go from one theatre of war to the next theatre of war. Foreign fighters in Syria, for example, had been trained in the battles in Afghanistan years before. When we apply these temporary exclusion orders and we keep people out of Australia for two years with the priority, and the correct priority, of keeping Australians safe and mitigating that initial threat we also need to recognise that what we're doing is keeping them away, so that they then become migrant foreign fighters chasing the next theatre of jihad. And unless we do everything that we can to eradicate the threat of terrorism at its roots, unless we do everything that we can to battle violent jihadism in all its forms, there will be another theatre of jihad. There will be another war, another combat space, and these people will simply move to that next theatre.

The second point I want to make, which again underscores the need for not just having TEOs to mitigate immediate threats but also having a medium-term vision to eradicating and dealing with terrorism, is about restitution and justice. I recently read the story of a Yazidi woman who was awarded the Nobel Peace Prize. Unfortunately, she is not alone and the kinds of atrocities that were committed against Yazidi women by ISIS fighters show unimaginable barbarity. I think that it is important that these women, and men and children, have some form of justice, some form of restitution. How can we do that if we don't bring these people to justice? Whether it's by bringing them back here and sending them through courts or having some other form of international, coordinated effort where we can at least have some form of restitution for the horror and the suffering that the Yazidi women, the Yazidi people and other minorities in Syria and Iraq went through.

The third point that I'd like to make is that Australia is not alone in this situation. There were many countries who had a higher proportion of foreign fighters present in Iraq and Syria fighting for ISIS. We are certainly not alone. This is not an Australian dilemma and it is not unique to Australia, which points to the need for international coordination to deal with the issue of foreign fighters from all countries around the world who are seeking to return to their countries of origin. I must reiterate this point very strongly, because in 2015 I went to United Nations talks in Vienna and it was very clear there that we needed much more international coordination, and much more of an international effort, on how we deal with returning foreign fighters but how we also deal with the issue of terrorism more broadly as well.

As I've said, we support the intent of these temporary exclusion orders. We support the intent of these orders in that they give priority to keeping Australians safe and they give priority to community safety. However, the process at which we are now at, this point where we are debating this legislation here in parliament, has raised some issues of significant concern for Labor. Those issues of concern being that the recommendations made by the government's own committee, the PJCIS, have basically been ignored. When we vote on this legislation, what we are going to have is a government that is voting against its own recommendations. We're also going to have an issue where a longstanding record and history of bipartisan on national security issues—particularly through the PJCIS, as the committee with a mandate in this area—appears to have been undermined and eroded by the government's actions with regard to this legislation. It certainly sets a precedent that I think is not in the interests of all Australians and certainly not in the interests of the safety of all Australians.

As I have said, I believe that the TEO is absolutely necessary to ensure immediate community safety. But as with all legislation, it cannot be effective if it is not backed up by a much more robust and comprehensive approach to countering the threat of terrorism in Australia. That process, that agenda or that suite that we have cannot purely be legislative. I note that the member for Berowra in his speech recently, just here, talked about children who have been taken to Syria and Iraq in ISIS combat zones. They may well have been raised into a radical ideology, and they would be coming here—if we allowed them in—and would not be monitored. Yes, he's absolutely right. That's because this government has failed to develop any kind of effective program of early prevention, of deradicalisation—to use the term quite loosely, as an umbrella term—and of social reintegration, particularly for children and young people who have fallen prey to radical ideologies.

The government have talked a big game on this. They have talked a big game about providing $13 million for deradicalisation programs. They have talked a big game about $60 million for eradicating the threat of terrorism. The fact is, as I know and as people who I have worked with in the past know, there is nothing there on the ground. We have 13-year-olds who are becoming radicalised. Their parents are crying out for programs and support, but there's nothing available for them.

While we can keep an eye on legislation and temporary exclusion orders—to keep people out, mitigate that risk and all of that—this is not a problem that's going to go away after two years. We can keep them out for two years; but, after two years, we're going to have the same problem. There may perhaps even be a greater problem if a new theatre of jihad arises somewhere and they all migrate to that new theatre of jihad or if they end up staying where they are and become more radicalised, have more children and raise more children in a radicalised setting. This is not a problem that is going to go away with these TEOs.

I urge us all, everyone in this House, if we are serious about the safety and security of all Australians and if we are serious about national security, to look beyond these temporary exclusion orders. We have to look beyond short-term legislative responses to long-term ideological existential threats.

1:03 pm

Photo of Keith PittKeith Pitt (Hinkler, National Party) Share this | | Hansard source

I rise to speak on the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019. Before we get to the substance of the bill, I would like to provide some responses to the contribution from the member from Isaacs. Everyone in this place knows that the member for Isaacs is great at verbal gymnastics. He is incredibly good with the verbal uppercut and good with the velvet glove and sucker punch. I think the comments that he made in regard to the member for Berowra and the member for Canning were inappropriate. In my view, those two individuals are people for whom integrity runs from their pores. They should in no way be disparaged in this place for their role on a committee.

I would say the member for Isaacs that we all know where your skill set is. In particular, if we look at the member for Canning—a former SAS officer, who literally put his life on the line for this country—I think it's wrong for anyone in this place to suggest that someone who has lived their adult life by words like honour and integrity and who has actually worked for this nation, and yet still we still hear the same comments from those opposite. Can I say that I've been called lots of things, but a constitutional conservative is not one of them. However, it was suggested by the member for Isaacs that we may well be constitutional conservatives, and, as a broken-down electrician, I've got to tell you that I'm really not that sure. However, Labor is hanging its hat on the fact that not all of the recommendations of a particular committee have been applied. Every single member in this parliament—apart from the new ones, of course—has been on a committee where the recommendations of their committee work have not all been accepted by the minister or by the government of the day. It is a regular and ongoing occurrence. It happens all of the time.

This is an incredibly important bill, and, once again, I would certainly go and put on the record my congratulations and thanks to the people of our security forces—those who are out working with the AFP and those who are in law and order—who are ensuring that our nation maintains its safe record. They work very hard every single day. Those results do not happen by accident. I think we all have a debt of gratitude to those individuals.

The Counter-Terrorism (Temporary Exclusion Orders) Bill does introduce a single explicit source of legislative power for the government to control the return of Australian citizens of counter-terrorism interest from overseas conflict zones, and I know this is a concern for the people in my electorate. The temporary exclusion orders scheme will enable greater control over the return of these Australians by providing a streamlined mechanism to impose conditions, specifically notification requirements, and facilitate the monitoring of individuals who may pose a threat to the Australian community. Why is it necessary? Unfortunately, we no longer live in the same world that we knew. We simply do not. Since 2012, around 230 Australians have travelled to Syria or Iraq to fight with, or support groups, involved in the conflict. I don't understand that. The people I represent don't understand it. I don't know why they've done it. Certainly, we do not support it. It is just incredible to me that people would take that position, but these Australians are part of a group of over 40,000 foreign fighters, including around 7½ thousand from Western countries, who have travelled to that region since the conflict began, and around 100 Australians or former Australians who travelled to Syria or Iraq have been assessed as being deceased. So around 80 Australian men and women are currently in Syria and Iraq and have fought for, or otherwise supported, Islamic extremist groups. And, based on the data from third-party sources, there are known to be at least 20 adult women and at least 43 children in Syrian IDP camps.

This scheme comprises two components. The first prohibits the return of Australians of counter-terrorism interest without forewarning. The minister will have the power to make a TEO in relation to a person which will prohibit the person's return to Australia until issued a return permit. Importantly, the bill does not permanently prohibit entry into Australia, and a person is entitled to be issued a return permit if they apply. This will prevent Australians of counter-terrorism interest returning without warning or without adequate protections being in place. The second component will enable the minister to impose conditions in a return permit to control when and how the individual can return to Australia. These conditions ensure that the person will arrive into the hands of authorities with no surprises.

I know that there are many on this side of the House wishing to make a contribution, so I will keep my contribution brief, but we must continue to ensure that the parliament moves with the remainder of the world, and the world has shifted. It is no longer the world and the nation that we knew as children. We must take action. This is what has been recommended particularly by our own security forces, by those individuals who work every single day in this theatre. We should take their advice; and we need to act. I absolutely support this bill and what it will do for our nation to ensure into the future that we do everything we can as a parliament, as a community and as an organisation to keep Australians and our nation safe. I commend the bill to the House.

1:09 pm

Photo of Tim WattsTim Watts (Gellibrand, Australian Labor Party, Shadow Assistant Minister for Communications) Share this | | Hansard source

It's only Tuesday, and it's already been a disappointing week for this parliament. The second day of the second week of the current parliament has put a spotlight on the threadbare agenda of this tired, third-term government. It's a government that has turned a permanent campaign into a permanent opposition. This week has revealed a government with no substantive agenda of its own and a compensating obsession with those sitting opposite them in this chamber. It's a government that's more interested in pursuing tactical wedge politics than in delivering for those people that elected them to represent them. It's a government willing to trash longstanding norms of practice and procedure in this place in pursuit of short-term political tactics. Ultimately it is the Australian people who will pay the price for the approach being taken by those opposite.

The Labor Party will always work in a constructive and bipartisan manner on national security, even when we are lacking a partner in this effort. Keeping Australians safe is Labor's No. 1 priority. We support strong laws and we'll seek to work in a bipartisan way to achieve the best outcomes for keeping Australia and Australians safe. For the past six years we have worked constructively and in a bipartisan way with the government through the Parliamentary Joint Committee on Intelligence and Security. Throughout both the Abbott and the Turnbull governments, the PJCIS process was respected by all those who participated in it, and during that period the PJCIS inquiries resulted in 31 reports with 369 recommendations—invaluable, bipartisan work done behind the scenes in the public interest by parliamentarians acting in good faith to improve proposals and legislation brought to the committee to keep Australians safe.

The Abbott and Turnbull governments accepted all but one of the committee's recommendations, and the result: better legislation to keep Australians safe. It's been hard work in this committee. I haven't been a member, but I know the regard in which it is held by all members in this chamber. A spot on this committee is keenly sought by members because we understand the privilege that it is to serve on it and the special obligations that it brings—scrutinising proposals to keeps Australia safe, long hearings to gather evidence about the efficacy of these proposals, rigorously testing legislation to ensure that it delivers on those proposals, and tough, good-faith negotiations where, after this scrutiny, after hearing the evidence, there are differences of view.

That brings us to this bill, the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019. Labor supports the PJCIS's recent recommendations on the temporary exclusion orders—bipartisan recommendations made in good faith by this committee. Labor supports strong laws that will secure the safety of Australians and we support the need for a temporary exclusion order regime. The issue of foreign fighters is not a new one, and there are international lessons that we can draw from. The United Kingdom has had temporary exclusion order legislation in place since 2015. Both Labor and Liberal members of the PJCIS worked diligently through the various community concerns and provided their detailed report on 4 April 2019, making 18 substantive recommendations. So far, so normal. That's the way it's supposed to work—a substantive report provided in good faith, a consensus report on a bipartisan basis. But this is where things change.

The temporary exclusion order legislation we are debating today explicitly rejects a number of PJCIS recommendations—for the first time explicitly rejecting consensus, bipartisan recommendations designed to improve this legislation and to make Australians safer. The government claims that it is only rejecting two recommendations, but that's clearly not true. In total, four PJCIS recommendations have been rejected in full by the Minister for Home Affairs, and six have been rejected in part. Recommendation 10 from the PJCIS suggests that a person may seek judicial review of a decision of the minister to grant or refuse an application. The government has argued that judicial reviews are unnecessary in these circumstances because a minister must accept an application for a return permit. But that's not true. The minister must give a return permit if the person has applied to the minister in a prescribed form and manner or if the person is to be, or is being, deported to Australia. The minister may refuse to give a return permit if he does not believe the person has applied in an appropriate manner. But, more importantly, judicial review of a decision to grant a return permit is needed because it allows the applicant to seek judicial review on one or more of the conditions set out in the permit rather than in the permit itself.

The bill put forward by the government is not as strong as this law should be. In fact it's unclear if the law is even constitutional. We often get lectures from those opposite about the virtues of constitutional conservatism, about not playing with a system that is working efficiently. And yet those opposite cannot, with hand on heart, stand in this chamber and say that this legislation will be constitutional. The Law Council of Australia has stated publicly that this legislation risks being struck down in the High Court for being unconstitutional. Labor members of the PJCIS have repeatedly requested an assurance from the government that the bill is constitutional, but this has been ignored.

In rejecting the PJCIS's recommendations, the Minister for Home Affairs seems to have forgotten that these are not partisan recommendations, that these are not recommendations of the Labor Party. These are bipartisan recommendations from the most respected committee in this parliament, from members respected by all in this parliament, a committee that has done invaluable work, over the past six years in particular, in making Australians safer. Unfortunately, the Morrison government is establishing a track record of breaking this compact in the way that the PJCIS has happened to date, as occurred—not explicitly, but in practice—in the last piece of national security legislation that was rushed through this parliament, the assistance and access bill, in 2018.

Despite the PJCIS handing down 17 substantive recommendations on the assistance and access bill, these recommendations were not fully incorporated in the legislation passed by this parliament. Labor proposed several amendments to bring the legislation in line with the PJCIS's recommendations that addressed numerous community concerns that the PJCIS had heard during an extensive parliamentary inquiry into that bill. The government has in effect rejected those amendments, thereby rejecting the bipartisan compact in the PJCIS. This is no way to deal with important national security legislation.

Rushing legislation through this parliament without proper debate, eschewing established bipartisan parliamentary processes, risks problems in the future. It leads to mistakes, as we saw with the rushed passage of the access and assistance bill. Even though that bill was intended to assist law enforcement and our national security agencies by facilitating the interception of online communication channels, in practice that legislation may end up leaving Australian law enforcement and national security agencies unable to take advantage of the recently passed CLOUD Act in the United States, a US law intended to make it easier to obtain access to data held by tech companies.

What we're talking about here is the difference between data in transit and data at rest. The Telecommunications and Other Legislation Amendment (Assistance and Access) Bill dealt with assisting law enforcement to access data that was being communicated between people. That was the whole encryption debate. But in the process of dealing with that, by failing to include judicial review in the access and assistance bill, unintentionally—because that bill was rushed through this parliament—we have precluded ourselves from having access to a new regime designed to facilitate access to a vastly large trove of data, a vastly more valuable law enforcement tool. We have precluded access to the data stored by these communications companies in the United States.

In a Law Council submission to the PJCIS inquiry in 2018, they argued that the law is likely to disqualify Australia from entering into an executive agreement with the US under the CLOUD Act, because the CLOUD Act states that before entering an agreement the US Attorney-General is required to certify that the other nation 'affords robust, substantive and procedural protections for privacy and civil liberties' in light of the data collection and activities of the foreign government that is subject to the agreement.

What this is about is that the Americans have a law saying that data stored in the US is not allowed to be shared outside the US outside this CLOUD Act regime. The CLOUD Act regime says that that data can only be shared outside the US if it's being shared with another country that has robust procedural protections for that data. The United Kingdom is currently negotiating access to that legislation, as you would expect, as a Five Eyes partner. You would expect that Australia would be next in line, as another Five Eyes partner. But we've stuffed it up. Until we fix the access and assistance bill that was rushed through this parliament—heedless of this concern—we will not be able to negotiate one of these CLOUD Act agreements.

That is the cost of trashing process and procedure to ram through bills in this parliament. That is the cost of trashing the good faith bipartisan scrutiny of national security legislation in this parliament. In the bill before the House today, we must heed the lessons of the access and assistance bill. If the government passes this proposed temporary exclusion order legislation unamended, it may be unconstitutional, as we discussed earlier. If the government passes these proposed bills without change, it will do so in the face of criticism from security experts, from respected organisations such as ASPI and the Lowy Institute. There are serious consequences to disregarding established bipartisan processes and recommendations, which the Morrison government and his Minister for Home Affairs seem determined to do in this parliament.

Why the rush? After doing nothing for such a long period of time, why the rush now? The government wants to rush this bill through the parliament despite significant flaws identified in a bipartisan basis through the PJCIS, because it claims the legislation is urgent due to the risk of foreign fighters. This risk is not new. It has been apparent for many years that Australians would face the risk that radicalised Australians would attempt to return home. We knew this when the United Kingdom parliament passed temporary exclusion orders legislation more than four years ago. But the minister responsible for national security in this country has either been incompetent, lazy or asleep at the wheel. Why has it taken four years?

It wasn't until 22 November 2018, when the newly minted Prime Minister and the Minister for Home Affairs, desperate for a policy announcement, realised they could announce a new temporary exclusion order regime. But then again nothing happened. This seemingly urgent piece of legislation was then not introduced into the parliament until 21 February 2019, the second-last sitting week before the federal election. The government then rushed the legislation through the PJCIS. Both Labor and Liberal members worked extraordinarily hard through the PJCIS to make 18 recommendations, which the government rejected the majority of—10 of those recommendations. Now they want to rush this legislation that is so important to ensuring the safety of Australians through the parliament, disregarding established bipartisan practice, despite not doing anything about the issue from many years.

What the government ought to do at this point is take a deep breath, step back and restore bipartisanship in this process. It should refer this legislation back to the PJCIS. While Labor supports the need for temporary exclusion order legislation, we will seek to amend this legislation to reflect the considered thinking, hard work and bipartisan recommendations of the PJCIS. The Counter-Terrorism (Temporary Exclusion Orders) Bill and the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill, read together, are not consistent with the PJCIS recommendations. The bills should be referred back to the PJCIS to ensure that they work, to ensure that all concerns have been addressed and to ensure that they can withstand High Court challenge.

It's high time that the Morrison government return to the bipartisan process respected by both the Abbott and Turnbull governments and let the PJCIS do its job. The safety of all Australians is too important for national security to be politicised in this way. That's the nub of it. That's what's going on here. Four years of inaction—nothing! Legislation that could have been introduced any time through that period was introduced in the second-last week before a federal election—no rush, no urgency—and now, with a new parliament that has no policy agenda and the government sniffing a short-term tactical benefit, a short-term political wedge, it is the No. 1 priority. In pursuit of that short-term political benefit, that political wedge, this government is willing to trash one of the most important institutions in this parliament.

Institutions take decades to build. The respect of the PJCIS by all members of this parliament is extraordinary. It's unique in this parliament. What is happening today with this bill is very significant, and conservatives sitting opposite ought to care about this more than anyone else. Who is standing up for institutions in our democracy today? Do those opposite think that our democratic institutions are in robust health today? Do they think that their constituents, the Australians who put them in this place, think our democratic institutions are in rude health? We know that's not the case. Now is the time to take a stand for our institutions and defend them because they pay dividends down the line.

1:24 pm

Photo of Andrew HastieAndrew Hastie (Canning, Liberal Party) Share this | | Hansard source

The Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 is very important and significant legislation because its purpose is to protect the Australian people from terrorists and returning foreign fighters who seek to harm us. Those returning foreign fighters have been radicalised online, recruited by Islamic State and their affiliates. They betrayed their country—they betrayed us—to fight in Iraq and Syria and now are seeking to return, and continue to struggle. They are returning to us with combat experience, hard hearts and a proven capacity for violence and bloodshed. We have Australians among us, and looking to return, who see themselves as part of a global insurgency against free peoples committed to liberal democracy, the rule of law, and values and institutions that uphold the dignity and sanctity of the individual.

These foreign fighters have betrayed our country and exchanged their place in our community for a seat at the table for violence, bloodshed and tyranny. They do not deserve—nor should they receive—an open door back into the safety and security of our Commonwealth. Therefore, the purpose of the temporary exclusion orders bill is to delay, control and risk-manage the return of foreign fighters and other nefarious characters into our Commonwealth. Our law enforcement and intelligence agencies have a number of operational tools at their disposal, and this bill strengthens their capacity to manage the threat posed by foreign fighters.

As chair of the PJCIS I led an inquiry into and reported on this bill in the 45th Parliament, back in April. We made 18 recommendations, including an additional one that the bill be passed. Our inquiry was thorough and our debate internal to the committee was robust, as it should be in a functioning democracy. The government has responded and accepted either fully, in part or in principle, as is the language used in the government's response, 16 of the recommendations. The government has noted two of the committee's recommendations.

Since this report was tabled, I have received further briefings from law enforcement and intelligence agencies, alongside my deputy chair, the member for Holt, and the intelligence we received was not encouraging, to be frank. It is true that the global coalition against Islamic State has prevailed militarily in Iraq and Syria. However, to proclaim victory is to call a false dawn. We have struck the shepherd but the sheep are scattering across the globe—and, sadly, many are Australians. We have a long fight ahead of us against Islamic State, which includes disruption, enforcement and counter-radicalisation. To buy us time, the temporary exclusions orders bill is the most effective way of allowing our law enforcement and intelligence agencies to manage the flow of foreign fighters back to Australia.

It has been made clear to us that there is an operational imperative to pass this bill. I am satisfied with the government's response. Therefore, I support this bill in its present form and will vote against Labor's amendments. I think the most significant recommendation was No. 7, the judicial review. During the inquiry, we had several submitters, including the Australian Human Rights Commission and the Law Council of Australia, make it very clear that judicial oversight was lacking from the bill. We have recommended that be included. The government has responded by accepting, in principle, recommendation No. 7. That is the news story that so far has been missed by much of our media.

The member for Isaacs spoke earlier and gave us 30 minutes of what I can only call Shakespearean obloquy. We had outrage, condemnation, self-justification and all manner of rhetorical tricks. The question for the member for Isaacs is: will you vote for this bill? He's asked coalition members if we will cross the floor to vote for the amendments. The answer to the member for Isaacs is: no, we will not vote with Labor for their amendments—out of principle, and because of the need for this bill to be passed in its present form. Moreover, we will not vote for him, he who fears his political reputation by voting with us. I suggest the member for Isaacs join us on the yes side when the bells ring later today.

Photo of Rob MitchellRob Mitchell (McEwen, Australian Labor Party) Share this | | Hansard source

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour. The member will have leave to continue speaking when the debate is resumed.