Thursday, 10 December 2020
Australian Security Intelligence Organisation Amendment Bill 2020; Second Reading
Labor supports the Australian Security Intelligence Organisation Amendment Bill 2020. We welcome the long-overdue repeal of the questioning and detention warrant power, a power which has never been used and which, since 2016, the Parliamentary Joint Committee on Intelligence and Security and multiple independent national security legislation monitors have repeatedly told the government to repeal. And we agree that, in extraordinary circumstances, ASIO should be able to use its compulsory questioning power for the purpose of gathering intelligence in relation to politically motivated violence, espionage and foreign interference.
The truth is that this bill is long overdue. In March 2018 the intelligence and security committee recommended that, among other things, this government (1) repeal the questioning and detention warrant power in division 3 of part III of the ASIO Act and (2) develop legislation for a revised compulsory questioning framework and introduce it to the parliament by the end of 2018. Those recommendations were unanimous. It took over one year for the government to even acknowledge the committee's recommendations and it took over two years for the government to introduce the Australian Security Intelligence Organisation Amendment Bill, which implements those two key recommendations.
The questioning and detention warrant power is a power that has never been used. Since 2016 the intelligence committee and multiple independent national security legislation monitors have repeatedly told the government to repeal it. This bill would finally do that. It is no small thing for the current government to repeal a coercive power. I'm not sure it has ever done so. Consistent with the intelligence and security committee's March 2018 recommendations, this bill would also introduce a revised compulsory questioning warrant power.
As set out in the report of the Parliamentary Joint Committee on Intelligence and Security, all members of the committee, Labor and Liberal, supported the bill, subject to a number of amendments being made. The committee made seven unanimous recommendations in total. The government has circulated amendments that would implement six of them. The government has said that it will not implement recommendation 3 of the committee's report, which reads as follows:
The Committee recommends that the Australian Security Intelligence Organisation Amendment Bill 2020 and the Intelligence Services Act 2001 be amended to allow the Committee to request a written or oral briefing on any matter in relation to any questioning warrant as reported in the Annual Report prepared by the Director-General of ASIO.
As a matter of practice, ASIO already provides the intelligence and security committee with regular briefings and some of those briefings might touch on operational matters. As the committee's report makes clear, recommendation 3 is not calling on the government to amend the Intelligence Services Act to allow the intelligence and security committee to inquire into ongoing operational matters. The purpose of the amendment is simply to make clear that the committee can request a briefing from ASIO in relation to a questioning warrant that has already been issued and which has been reported in the annual report prepared by the director-general of ASIO. In other words, the amendment would ensure that the committee is able to satisfy itself that these extraordinary powers are being exercised appropriately.
We in the Labor Party do not think recommendation 3 is controversial. Clearly, the six Liberal members, the majority of the intelligence and security committee, do not think it is controversial either. We do, however, acknowledge that, since the committee tabled its report into the ASIO amendment bill, the government has released the unclassified version of the report of the comprehensive review of the legal framework of the national intelligence community by Dennis Richardson. It has also released its response to that report.
Among other things, Dennis Richardson recommended that the remit of the intelligence and security committee should not be expanded to include direct oversight of operational activities whether past or current. The government has agreed with that recommendation. Labor is still in the process of working through Dennis Richardson's 1,300-page report, including the sections on the role of the intelligence and security committee. For that reason, we will not insist on the implementation of recommendation 3 of the committee's report at this stage. However, we will have more to say on this issue after we have had time to complete our review.
As to the other committee recommendations, the government has introduced amendments to implement the other recommendations made by the intelligence and security committee. Those amendments will improve the safeguards contained in the bill, particularly in relation to minors, and ensure that the committee will have a further opportunity to review the new questioning warrant power in three years. As a result of the amendments circulated by the government the eligibility criteria for prescribed authorities will be tightened; the Attorney-General will be required to take into account the best interests of the child as a primary consideration in deciding whether to issue a minor questioning warrant; and it will be put beyond any doubt that an ASIO officer who makes a public interest disclosure in accordance with the Public Interest Disclosure Act could not be prosecuted for making an unauthorised disclosure of questioning warrant information.
The committee has also recommended, and the government has agreed, that the bill be amended to provide for a more rational sunset provision. Instead of the 10-year sunset provision originally proposed by the government, which can hardly be described as a sunset provision at all, the new questioning warrant framework would instead cease to have effect in five years. The inclusion of a rational sunset provision was important to all members of the intelligence and security committee, Labor and Liberal, as was the inclusion of a provision that would allow the committee to commence the review into the new questioning power within three years. That is because the questioning warrant power is an extraordinary power. We must not lose sight of that. It is an extraordinary power now and it has always been understood as an extraordinary power.
I want to say something about what we have called 'the Howard safeguard' that appears in the current legislation. This is the one significant point of difference between Labor and Liberal members of the intelligence and security committee. Unlike the Liberal members of the committee, Labor members of the committee did not support the repeal of the key safeguard that was created by the Howard government in 2003, which is the requirement that questioning warrants be issued by an independent issuing authority, who is a judge or a retired judge. The government has advanced no persuasive justification for removing the Howard safeguard. Most bizarrely, the government has argued that the repeal of the Howard safeguard would somehow constitute a desirable manifestation of the doctrine of ministerial responsibility. The Minister for Home Affairs, who is with us in the chamber, is not exactly known as a proponent of that particular doctrine. This is, after all, the same minister who disclaimed any responsibility for a $423 million contract that his department awarded to a company headquartered in a beach shack on Kangaroo Island.
Even putting to one side the minister's hypocrisy, the suggestion that removing the Howard safeguard would constitute a desirable manifestation of the doctrine of ministerial responsibility betrays a profound ignorance about the role that independent issuing authorities play in Australia. Such authorities are tasked not with making judgements about questions of policy or national interest but, rather, with assessing the legality of decisions to authorise the use of coercive powers by government agencies. The government has also overlooked the fact that, by necessity, ASIO operates in secret. The usual rules of public accountability and ministerial responsibility to the parliament do not and cannot apply.
Labor's approach to this bill, as with all national security bills, has been guided by two principles: a commitment to protecting the safety and security of Australians and Australia, on the one hand, and an equally powerful commitment to protecting the democratic rights of and liberties of Australians, on the other. The Howard safeguard, which this government is removing, is consistent with both of those principles. Labor understands that having clearly defined powers and robust safeguards, as well as being protective of civil liberties and democratic freedoms, plays a critical role in building and maintaining public confidence in ASIO. Without that confidence, ASIO's ability to effectively gather intelligence would be severely compromised.
The Howard government created the Howard safeguard for a reason. The questioning warrant power is unlike any other power conferred on ASIO. When the bill containing the questioning warrant powers was first introduced to parliament in 2002, the then Attorney-General for the Howard government, Daryl Williams QC, MP, described the bill as 'extraordinary' and said:
… I hope the powers under the bill never have to be exercised.
He also said:
… the bill is about intelligence gathering in extraordinary circumstances …
The Inspector-General of Intelligence and Security has described the power as 'serious and unusual'. As the Department of Home Affairs acknowledged on 10 July 2020, the compulsory questioning power under this bill could, for example, theoretically be used to apprehend and question an Australian who is doing business with a foreign company or a journalist. Moreover, under a questioning warrant, a person enjoys no privilege against self-incrimination and must not fail to give any information requested under the warrant. A person may be required to surrender travel documents, may be subject to strip searches and may be prosecuted and imprisoned for up to five years for disclosing the mere existence of a questioning warrant.
The Howard safeguard is good law, and Labor will be moving an amendment to reinstate it. And I'd like to put this on the record: if that amendment fails, Labor will reinstate the Howard safeguard if we are successful at the next election.
I'll turn now to some of the other matters that came up in the committee's report and that the government is proceeding with amendments for, first being the prescribed authority. Under both the current and proposed new questioning warrant power, questioning by ASIO must be conducted in the presence of a prescribed authority. That is another fundamental safeguard. When the Howard government sought to introduce the questioning warrant power in 2003, the Australian parliament convinced the government to amend the bill to ensure that only eminent and highly qualified individuals could be appointed as prescribed authorities.
As a result of those amendments, a prescribed authority must be a former judge of a superior court, a current Supreme Court or district court judge or a president or deputy president of the Administrative Appeals Tribunal. By contrast, in the form in which it was introduced to the parliament by the government the bill would have allowed the Attorney-General to appoint individuals who could not possibly be qualified to perform the role of prescribed authority. For example, the Attorney-General could appoint a conveyancing solicitor or a banking lawyer as prescribed authorities provided they had 10 years experience in a law firm. The government justified this departure from the existing prescribed authority model on the basis that the model has presented difficulties due to a limited pool of potential applicants. Given the very high number of serving and retired judges across Australia, which runs to several hundred men and women, and given that the current questioning warrant power has not been used in 10 years, that justification is very weak indeed.
Labor welcomes the government's amendment to tighten the eligibility criteria for prescribed authorities. That amendment will implement a recommendation by the intelligence and security committee that, in addition to having engaged in legal practice for at least 10 years, the legal practitioner must be a Queen's Counsel or a Senior Counsel in order to be eligible for appointment as a prescribed authority.
Turning to some other concerns, Labor have a number of other concerns with the revised questioning warrant framework that in our view require particularly close examination when the intelligence and security committee reviews the legislation in three years time. Those concerns are set out in the additional comments by Labor members of the intelligence and security committee which form part of the report on this bill and so, with one exception, I won't go through them now.
The one outstanding concern that I wish to mention relates to children. This parliament must be vigilant in ensuring that the safeguards designed to protect children in this bill, and in any bill, function as intended. While in its amended form Labor are generally satisfied that the bill includes sufficient safeguards to protect children, we do think the government should give further consideration to the introduction of an independent child advocate into the questioning warrant framework. Certainly that is a matter that the intelligence and security committee will look at closely when it reviews the revised questioning warrant framework in 2023.
There's one other aspect of this bill which I wish to deal with which is something apart from questioning warrants, and that is the internal authorisation of tracking devices. In addition to a revised questioning warrant framework, the bill would enable ASIO to use tracking devices with internal authorisations rather than requiring a warrant from the Attorney-General. This is significant because all of the other invasions of privacy that ASIO is able to undertake by authorisation of law do require a warrant from the Attorney-General. This marks a break with that arrangement. The government's primary justification for this change is that law enforcement agencies do not require a warrant to exercise similar powers and so ASIO should not require a warrant either. That is not so much a justification as it is an observation from which nothing follows, and it's an observation that ignores the fundamental distinction between intelligence agencies and law enforcement agencies. That, of course, is a fundamental distinction, which Dennis Richardson reaffirms in the recently released report, saying that that distinction, a distinction that forms part of the framework established after the report by Justice Hope more than 40 years ago, remains as important a distinction today as it was then.
Ultimately, having regard to the robustness of the oversight provided by the Inspector-General of Intelligence and Security and the operational benefits to ASIO, Labor was persuaded that ASIO should be able to use tracking devices with internal authorisation. But I would like to make it clear that, despite agreeing to these amendments, Labor, like Dennis Richardson, but apparently unlike the government, does recognise that there is a fundamental distinction between the role of an intelligence agency and the role of a law enforcement agency.
I'd like to conclude by making it clear that, regardless of whether our amendment to reinstate the Howard safeguard succeeds, Labor expects that the Attorney-General will use the new questioning warrant power sparingly, prudently and only in the most extraordinary circumstances. As well as having serious implications for the rights and liberties of the subject of the warrant, the use of the questioning warrant power to gather intelligence in relation to foreign interference and espionage could in some circumstances provoke an international response, which could have broad and serious implications, including for Australian nationals living or travelling overseas. 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:
(a)Labor's approach to this bill has been guided by a commitment to protect the safety and security of Australians and Australia, on the one hand, and an equally powerful commitment to protect the democratic rights of and liberties of Australians, on the other;
(b)the bill would remove one of the key existing safeguards that was created by the Howard Government when the questioning warrant power was first introduced in 2003; and
(c)under the Howard Safeguard, a questioning warrant must be issued by an independent issuing authority with the consent of the Attorney-General; and
(2)calls on the Government to amend the bill to re-instate the Howard Safeguard."
The original question was that this bill be now read a second time. To this the honourable member for Isaacs has moved an amendment that all words after 'that' be omitted, with a view of substituting other words. If it suits the House, I will state the question in the form that the words proposed to be omitted stand part of the question.
These laws from Minister Dutton, the Minister for Home Affairs, would have a chilling effect on journalists breaking politically significant stories, on grassroots community activists and on brave whistleblowers who speak out and protect the public's right to know what their government is doing. These laws could see these brave people jailed for up to five years—for example, if they're a journalist and they refuse to reveal their sources. It's no wonder that barristers who have had a close look at this have said that this will have a chilling effect on the willingness of people to speak to journalists about issues of political significance and a decrease in media coverage and reporting on those matters, thereby inhibiting public debate.
The powers that Labor and Liberal are about to give the Attorney-General unfettered, in this bill, will be so far-reaching that they can be used to clamp down on civil society organisations and political advocacy groups, including environment, human rights and refugee groups. In this bill, this law and these powers would make Australia a world leader in state sanctioned tracking of citizens and coercive questioning powers, going further than any other Five Eyes country. Labor and Liberal are about to vote for it. This always happens at the end of the year: Labor and Liberal put a lump of coal in the parliamentary Christmas stocking. There is always a bill that gets rushed through at the end of the year that takes away people's rights.
People should be very concerned about this legislation because, to the extent that bits of this legislation may be half a step and shuffle forward because they remove some powers, it takes four, five, six or seven steps back. I say to the opposition that it is not enough to say, 'We will give the government unfettered powers that make Australia a world leader in being able to examine, question, search and seize things from citizens in the hope that maybe one day we'll take them back later.' If these powers are so bad, which they are, let's not give them to the minister in the first place. It's critical that people understand a bit about the detail of what is happening here and why this last minute piece of legislation that is being rushed through should send a shiver down the spine of people who think that Australia is a place where you have the right, provided that you're not breaking the law, to go about your business freely without government ministers—not even security agencies, but ministers—being able to search and seize you and your property, because that's what this legislation will do. We've got to understand it.
There will be a thing called a questioning warrant in this bill, which will now be broadly available. You haven't been convicted of anything, but someone has a suspicion—and I'll come to who that someone is—that you might have done something wrong. They'll be able to bring you in, detain you, hold you for questioning and, under this bill, a police officer will be able to conduct a search, if you've been apprehended, and seize your items.
At the moment, if someone wants to issue a warrant to exercise those kinds of broad powers, which are going to be expanded under this bill, you have to go to a judge. Labor and Liberal are about to vote and support this bill to give that unfettered power to the Attorney-General and a minister to be able to call you in and authorise for you to be searched and your property seized.
I've heard all of the things that the opposition and others say about how this minister and this Attorney-General conduct their affairs, how in many instances they're not fit to hold their jobs and how they turn a blind eye to civil rights. However, as the rest of the country knows you wouldn't trust this government to protect your privacy and your liberty, we are nonetheless, on the eve of parliament rising, about to give the Attorney-General and the minister—not a law enforcement agency, not a judge overseeing it—the power to pull you in for questioning and authorise search and seizure. That should not happen. It certainly should not happen when the only inquiry into it has been at a closed-shop committee where Labor and Liberal get together and say, 'It's okay. We're quite happy to hand over that power to the state that makes Australia a world leader in this kind of state-sanctioned tracking of citizens and coercive questioning powers.'
I'm pleased that the opposition's going to move an amendment at least to require a judge or some other issuing authority to oversee these warrants, but if that amendment fails we should all vote against the bill. Otherwise, if we don't vote against this today—and I'm not surprised that certain members don't want to hear this debate, because I suspect in other instances they'd have railed against these kinds of powers being given to the Attorney-General—and try and stop it, then we are saying, Labor and Liberal are saying, they don't mind if the Attorney-General now has unfettered powers in a way that you would struggle to find even in other Five Eyes countries to pull someone in for questioning, and search and seize their property.
There will also be warrants available to be issued with respect to 14-year-olds. We are going to see a lowering of the age for whom this could be targeted. That would be a breach of our international obligations under the Convention on the Rights of the Child.
It is disappointing, as we head towards the end of the year, that Labor and Liberal are in lock step in giving more power to the Attorney-General and the minister. No case has been made that this is going to make Australia safer. It's just going to give a minister unaccountably more powers. We have seen during the course of this year that, when the parliament chooses to stand up to the government, we can sometimes bring about change. The government doesn't always have to get their way. But they will get their way if Labor's willing to waive everything through.
I would hope that the opposition reconsiders this power grab by a government that is going to take away people's liberty, even when they haven't been convicted of doing anything wrong. You're not going to need to satisfy a court anymore that there's a suspicion; you just need a minister to have a suspicion, unchallengeable, with respect to a very broad range of activities that is going to encompass journalists, community activists and whistleblowers. If this law passes, all of a sudden the minister is going to have power to interfere in their lives. Anyone who cares about the rule of law and individual liberty should be very worried about this bill. Of course, standing up for national security is important, but we have to make sure that in protecting Australia we don't take away the things that define us as what we are in the first place. One of those things, I would have thought, is that, if you want to stand up, speak out and blow the whistle on something that is happening by a government or if you want be a community activist and organise a demonstration against the government, you should be able to do that without worrying that the minister is going to have unfettered power to call you in for questioning, keep you separate from the rest of the world, seize your property and search your home. That's the power that Labor and Liberal are about give to the current Attorney-General. I want you to think about that.
The current ministers are not fit to be exercising the powers that they have. The opposition have said that, and yet the opposition are about to hand this power over to them. I heard from the opposition spokesperson that they're going to give this power to the Attorney-General and the government on the hope that they use it well. That is going to be of great comfort to the person who finds themselves called in for questioning, detained, their property searched and seized even though they haven't done anything wrong! Perhaps they've just blown the whistle. Perhaps all they've done is organised a rally and been a community activist. Perhaps they're a journalist. Well, that hope counts for nothing. We shouldn't be giving powers to a government, to an unaccountable minister and then just hope that they do the right thing. If we want them to do the right thing let's put it into law. If we're not guaranteed that the minister will do the right thing—and looking at these ministers there are plenty of reasons to think they won't do the right thing—let's not give them the power in the first place. That's what we should do.
I expect this from the government—you expect this from the government: every year they encroach further and further on individuals' liberty and erode the rule of law more and more. I plead with the opposition to reconsider handing these powers over to the government. You hope one day, maybe, you'll get into power and you might be able to repeal it—although maybe not. Maybe there'll be a different person sitting in the chair at that stage who has a different approach to it, or maybe the party will change its position. Instead of hoping on a wing and a prayer that maybe one day you'll take away the power, let's not give it to them in the first place. This government does not deserve the right to track citizens who haven't done anything wrong more than they do at the moment. They have not earned that trust. We should not give them powers that are not going to be overseen by a judge, that would make Australia a world leader in state surveillance of its citizens.
This bill should be opposed. The amendment is one that will be supported because it takes out a bad bit, but, if the amendment fails, we should vote against the bill. I urge the opposition consider voting against the bill if the amendment fails. Otherwise it will be them who hands over to the government powers to do things that in other countries you can't do. When the minister does it—when the minister has you hauled in and has your house searched—you're not going to have any recourse, and that will be a dark day for Australia's democracy, for the rule of law and for individual liberties.
I thank the shadow Attorney-General for his contribution to the debate. I want to discount the contribution made by the member for Melbourne. I'd be very happy if somebody fact checked his appalling contribution—just his latest to this parliament—but people will take it at face value and discount it as an appalling contribution.
Mr Bandt interjecting—
You make Australians unsafe.
Yes, Mr Speaker. Ensuring the safety and protection of the Australian community is the first priority of this government. The persistent and evolving threat environment faced by Australia's law enforcement and security agencies makes it critical that they have access to effective capabilities and powers to counter the threats of politically motivated violence, terrorism, espionage and foreign interference.
The bill contains two distinct reforms that will modernise the powers of the Australian Security Intelligence Organisation, or ASIO, to ensure that it is equipped with the tools it needs to combat evolving threats to Australia's national security and to keep Australians safe from those who seek to do us harm. First, the bill will repeal ASIO's existing questioning and detention warrant framework—contained in division 3 of part III of the Australian Security Intelligence Organisation Act 1979, the ASIO Act—and introduce a new fit-for-purpose compulsory questioning framework. Second, the bill will amend ASIO's surveillance device regime, including to permit the use of non-intrusive tracking devices with internal authorisations in limited circumstances, akin to the level of authorisation for our law enforcement agencies.
The bill has been extensively reviewed by the Parliamentary Joint Committee on Intelligence and Security, with a report tabled by the committee chair on 3 December 2020. In particular, I want to acknowledge, not only in relation to this bill but generally on the committee, the work of the member for Canning, as the chair, and the member for Holt, as the deputy chair of the committee—two absolutely patriotic and professional members of this parliament, who do our country a great service by their work on that committee, in complete contrast to the enemy of state, the member for Melbourne, as was represented before in his contribution.
I withdraw the comment, Mr Speaker. ASIO is facing a wider range of security challenges than at any time in its 70 years. As the director-general noted in his most recent annual threat assessment, the number of terrorism leads that ASIO is investigating has doubled since this time last year. The director-general also noted that the threat to Australia from foreign interference and espionage is higher now than it was at the height of the Cold War. The ASIO Amendment Bill 2020 will modernise ASIO's powers and, in doing so, improve ASIO's capacity to respond to these threats. The bill contains a significant number of important safeguards, including oversight by the Inspector-General of Intelligence and Security. The bill also strengthens the right to legal representation during questioning.
To conclude, the bill ensures that ASIO is adequately equipped to combat security threats to Australia and Australians. It will ensure that ASIO can operate effectively in an increasingly challenging and complex national security environment. I commend the bill to the House.
The original question was that this bill be now read a second time. To this the honourable member for Isaacs has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. The immediate question is that the words proposed to be omitted stand part of the question.
Question agreed to.
The question now is that this bill be read a second time.
A division having been called and the bells having been rung—
As there are fewer than five members on the side for the noes, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.
Question agreed to, Mr Bandt, Dr Haines, Mr Katter and Mr Wilkie voting no.
Bill read a second time.