Wednesday, 21 October 2020
National Security: Office of the National Security Advocate
It's an honour to serve as a member of the Parliamentary Joint Committee on Intelligence and Security. The committee is very well led by the member for Canning. The PJCIS plays an important role in providing the parliament with a forum for the scrutiny of national security legislation. At the heart of the work of the committee is the need to balance liberty and security. How do you balance the rights of Australians—be they persons of interest, technology companies, internet users, the media, or ordinary citizens—with a need to protect our country? While protecting freedom is fundamental to democracy, we would be foolish to ignore the very real threats to the safety of Australia.
In performing its scrutiny work, the PJCIS regularly takes evidence from the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman and the Independent National Security Legislation Monitor. These agencies perform oversight of the activities and legislation governing the national intelligence community. I pay tribute to the work those agencies do in maintaining public confidence in our national security arrangements.
The committee is also assisted in its work by submissions made by civil society organisations like the Law Council of Australia, academic commentators, technology advocates and other agencies like the Human Rights Commission. Many of those civil society organisations make submissions to the committee on the basis of their interest and/or expertise in the subject matter. For some of the committee's inquiries, there will be several days of hearings, with advocates pressing the committee to water down elements of the legislation and put in place greater protections, especially for those accused of wrongdoing. This contribution is important and often assists the work of the committee. While there are many organisations and agencies arguing for these protections, it's often difficult to find organisations and individuals who are prepared to argue for the greater protection of the public.
From time to time, the committee benefits from evidence submitted to it by the Australian Strategic Policy Institute. They're able to provide a broad insight into Australia's security challenges, but they're not really equipped to help the committee test claims, particularly around technical legislation.
In addition, the committee also takes evidence in public and private from security agencies like ASIO and the Australian Federal Police and central departments like Home Affairs and the Attorney-General's Department. Those agencies may be constrained by what they can say in public. They may also be constrained in answering questions that go to operational matters or are about the advice that they've provided to government, or because decisions they are being asked about relate to decisions of elected ministers, not public servants. The nature of their relationship with government and the fact that they're security agencies rather than advocacy groups limits the approach they can take.
Ultimately, there is no agency whose role it is to advocate for security and to respond to and help the committee test the issues raised by those arguing for greater protections. There's a real risk that arguments made by organisations pursuing a civil liberties agenda are not properly tested, and that makes the committee's task more difficult. Ultimately, if the committee is not able to adequately weigh claim and counter-claim, our national security may be weakened. Underpinning our parliamentary democracy is an idea that truth will be discovered by testing competing arguments, but it's hard to do that where opportunities to properly test those arguments are not readily available. It's hard to think of a committee with a more important function in our parliament than the PJCIS, but it's also hard to think of a committee where the evidence it hears from non-government bodies is almost always one-sided, particularly when many of those organisations receive government funding.
Tonight, I want to float an idea which will help the committee—and, through it, the parliament—to more carefully consider legislation and balance liberty and security. I would like to propose that the government establish a new body, the office of the national security advocate. The national security advocate would be part of government rather than an independent agency. The national security advocate would comprise two principal officers: a senior lawyer who is experienced in appearing for government in national security matters, and a person from the national intelligence community with deep operational expertise. Its principal function would be to advocate for security laws, in accordance with our national interest and our traditions as a parliamentary democracy with the law of rule. The national security advocate would be able to play a more robust role in helping the committee—and, through it, the Australian people—to understand the government's legislation and the need for relevant security laws. It would provide the committee with evidence and examples to help the committee test propositions put to it by civil society and integrity agencies.
The national security advocate's experience would help the committee better understand the practical and operational effects of alternative submissions without compromising the Commonwealth's legal provision or revealing sensitive operational matters. The national security advocate could also potentially assist the Independent National Security Legislation Monitor with its inquiries. I believe the national security advocate could help assist the parliament to better strike the balance between liberty and security, which is at the very heart of the role we perform.