Tuesday, 28 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; Second Reading
It is with no great pleasure that I rise tonight to speak on this bill. I add my contribution to that of our spokesperson, Senator Penny Wright. I want to acknowledge and congratulate her and her staff for pulling together a remarkable dissenting report—given the extraordinary time pressure that the crossbenchers, opposition senators, committee staff and, most particularly, expert witnesses—who were brought together to assess this bill that the government proposes to shotgun through this place—were under. I do not use that term 'shotgun' lightly, but it is apt when you look at the process by which this government is putting this bill forward. I want to quickly sketch what has led us to this sorry place that we are in today with this bill.
This is the second of two national security bills, although the government is proposing that a metadata retention bill also be included in the series. I do not include that in a set of three because I think it is only tangentially related to national security, but this one does. I will say at the outset that the general premise of the government is sound in being concerned about people returning from conflicts overseas after potentially coming into contact with extreme ideologies or being steeped in those ideologies and returning home with potentially post-traumatic stress disorder after being involved in goodness knows what kind off violent conflicts. It is an issue that has been acknowledged across the spectrum, but I do question whether this bill makes any substantive or meaningful contribution towards protecting people from foreign fighters. That is not to say that the issue does not exist; it has of course existed for years. I would be interested to know, for example, whether the government has given any thought to combatants on either side who might have travelled to Gaza during Israel's recent bombardment there or whether they somehow are not to be considered within the scope of this legislation.
This bill would normally have been submitted to the Senate Standing Legal and Constitutional Affairs Reference Committee, which my colleague Senator Wright chairs, but the Legislation Committee, which Senator Ian Macdonald chairs, decided not to assess the bill and it was instead sent to the Parliamentary Joint Committee on Intelligence and Security. After it came to power last September, the government eliminated the crossbench spot on that committee—Senator Faulkner made some comments in that regard not too long ago. It is a committee that excludes the crossbench, who make up a representation of 18. It is the largest ever representation in this chamber—not just the Greens—with people from right across the political spectrum and right across the country who have been blocked from assessing the bill and talking to expert witnesses. Then the bill is brought back in here as a fait accompli with a set of amendments agreed to by the opposition, as Senator Conroy has just outlined. So there was no involvement of the crossbench or of Senate Standing Legal and Constitutional Affairs Committee. It has been a very rapid process, which nearly all of the witnesses, who did manage to pull high-quality submissions together, acknowledged—and too fast to properly evaluate.
The National Security Legislation Monitor, as Senator Wright acknowledged in her contribution, has been vacant since April. That is the office that is meant to assess whether counter-terrorism legislation is necessary and proportionate. That is the measure with which the government holds the potential future office of the monitor in contempt—in very low regard—because the government has ignored a substantive amount of the recommendations that Mr Walker SC made in the last series of reports that he tabled on issues of direct relevance to this bill. You have not even bothered to re-appoint the office; you have been happy to leave that lie vacant since April. Senator Brandis is always proud to come in here and say that it was one of his colleagues, Senator Judith Troeth, who brought that bill forward. It was a private senator's bill that I co-sponsored and brought through here. It did not pass for well over a year, but, nonetheless, the office existed until April when the government thought it could wipe it out because that is how little it cares about oversight and accountability. It is disgusting.
The Inspector General of Intelligence and Security deals only with the aftermath—deals with issues at the end of the pipe—and does not really have a policy-evaluation role on whether laws like this are necessary or proportionate. That is where we have been left. Perhaps the minister at the table can correct me, but it is my understanding that at about 12.30 tomorrow there will be a gag motion moved and this debate will be shut down. That is treating this chamber with contempt. Whether you support the bill or not, whether you support the amendments or not, this process of simply shotgunning legislation as dangerous as this through this place is absolutely appalling. Why exactly is the government in such a hurry? Yes, I agree that there is a legitimate public policy issue with combatants returning from violent conflicts overseas. Australians have been transiting in and out of Syria, through the gruesome civil war there, for three or four years that we know of. Why the sudden urgency over the last couple of weeks? People can draw their own conclusions.
And, of course, the opposition has simply given this bill a free pass, as they did with the ASIO Bill. After the bill had passed we saw a remarkable outpouring of regret from people as diverse as shadow minister Albanese—I guess speaking in a private capacity—Greg Sheridan, from The Australian; Janet Albrechtsen; and an entire spectrum of commentators around civil rights, civil society and industry. I wonder whether we are going to see a similar performance from the Labor spokesperson on this bill. It is, once again, left to the crossbenchers to provide the opposition in this country. I do not know what Senator Lambie is going to say, and I will not speak for the other crossbenchers, but it appears that the crossbench is the last remaining place in this chamber where critical thought on such bills resides.
Anthony Byrne, whom I hold in quite high regard, was chair of the Parliamentary Joint Committee on Intelligence and Security last year and I think he is the deputy chair of the committee now. He made some really perceptive comments a couple of months ago about the counter-terrorism legislation. Before ISIS really got a grip on western Iraq—although it had obviously been festering in Syria for a long period of time—Mr Byrne commented in an interview:
It is best that we have these debates around legislation as fraught as this in the light of day without some kind of pressure, without having to operate in the context of some kind of security emergency or heightened state of alarm. It is best that we hold these debates in a more measured way than that.
I think he is quite correct. Of course, what he left out is that the reason he presumably failed to move for that is that he knew the Labor Party would not be able to withstand the onslaught and would cave in. That is why it is best to be having these conversations in a more measured way—and, of course, we not. By this time tomorrow this bill will have been sent back to the House and will be on its way to being law. Again, it is left to the crossbenchers to provide that critical thought.
From my analysis, and the detailed and extremely valuable dissenting report that Senator Penny Wright has put forward, what we see is a mash-up of different causes. Some measures are sensible and necessary. Some measures are redundant because there are already provisions in criminal law that cover those offences. It makes it look much more as though somebody just wanted to draft some laws to look as though we are doing something, to be able to call a press conference and say we have passed some new laws. Actually, many of the things in this bill are redundant because offences have existed for a long period of time for the kinds of incitement to violence and criminal conspiracy that this bill, for some reason, thinks it is making an improvement on. Thirdly, there are measures that are simply dangerous and should not be in Australian law. Those obviously include the measures that Mr Walker, SC, believes should be taken off the statute books and not be given those additional sunset causes.
The Greens recommend that the bill not be passed in its current form. I think it is a great tragedy that the committee stage debate, where we actually get to have a reasoned discussion and debate about amendments, is likely to be cut short tomorrow by this gag motion that the government seems to be intending to move. Preventive detention orders should be removed from the Criminal Code. Control orders should be amended in line with recommendations by the Independent National Security Legislation Monitor, whom Senator Brandis seems to hold in high esteem—except he wanted to abolish the office and has not bothered to appoint another one. At least have the grace to read the reports that the guy produced, since his primary mandate was to assess precisely these kinds of clauses and work out whether they are necessary and proportionate.
The Greens will also be opposing the schedules of the bill that seek to expand the collection, use and sharing of biometric material in airport passenger processing systems. This is one of the most troubling aspects of the bill. It goes to schedule 5—the use of automated border processing control systems to identify particular individuals in immigration clearance. Actually, this will pass substantive automated surveillance technologies across the entire travelling population. And those measures proposed in schedule 6, as the dissenting report points out, seek to extend the use of biometric material as part of the advanced passenger processing system. This can impact on the privacy of a vast number of people who are suspected of nothing at all.
That is why I think the Privacy Commissioner told the Parliamentary Joint Committee on Intelligence and Security that a privacy impact assessment should be undertaken. But there is nothing in sight; the government does not appear to be interested in that at all. The commissioner said:
Such an assessment could be done in a way to help inform the bill to see whether any additional safeguards need to be built into the legislative base to add additional protections to that information.
And isn't it extraordinary that the minister representing in this capacity was still tabling explanatory memoranda to a bill that is still under development—apparently—even though we have been debating it in here for several hours. That is the kind of debacle you walk into when you bring a bill through here were such a rush. Nearly everybody who made a submission on this bill acknowledged that it was being done much, much too quickly. And we have not heard from any coalition spokesperson thus far about the case for this extra ordinary haste.
The Privacy Commissioner emphasised 'the importance of ensuring that any expansion of existing powers accords with community expectations about the handling of personal information' He said:
This balance can be achieved by ensuring that where the handling of an individual's personal information is authorised in the broader interests of the community, including upholding national security, those activities are accompanied by an appropriate level of privacy safeguards and accountability.
I am sure that the Labor Party believe that that accountability has been baked into this bill—and we, respectfully, strongly disagree.
I want to draw the chamber's attention to a joint statement on this legislation, the Foreign Fighters bill, titled 'Don't rush through unnecessary counter-terror laws that erode democratic rights and freedoms'. It was countersigned by 43 separate organisations. They make the case that the government denies our elected representatives and the community the opportunity to fully debate the changes—again, making the case for the extreme urgency that has been pressed. They make what I think is a profoundly important point. I will read briefly from the beginning of the statement:
The Australian Government has an important duty to protect the community from terrorism. At times, laws can legitimately limit the rights of individuals for the purpose of countering this threat, provided the limitations are necessary and proportionate.
In fact, national security laws and the protection of human rights share complementary goals; both are concerned with protecting Australians from harm.
The dichotomy that is put to us from the Prime Minister's office down—that we need to give up some of our rights in order to increase security—is exposed quite elegantly in this statement as false:
… national security laws and the protection of human rights share complementary goals; both are concerned with protecting Australians from harm.
You do not increase one by obliterating the other, yet that is precisely what this bill does.
The idea that agents or police can enter your home, or enter the home or premises of somebody who is not actually suspected of any offence, and not even have to notify anybody that that has occurred until months afterwards is characteristic of a police state. Preventative detention is characteristic of a police state. These are very, very dangerous powers that we play around with here, and once they are on the statute books, as Mr Walker quite correctly points out, they are inordinately difficult to get rid of. That is why the Greens believe, firstly, that the bill should not pass in the current form and, secondly, that the government—perhaps with the support of the opposition; I do not know—should rethink the unnecessary haste with which this legislation is being bashed through the parliament. The one thing that we do not want to see is a repeat of what happened after the ASIO bill. That bill was passed late at night in extraordinary haste and then in the following days the editorial pages, the TV shows, and the op-ed opinion pieces that came out said, 'What the hell have we done? How did we let this happen? Why was this done?' We are hoping for that kind of critical thinking and analysis before the bill passes, not after.
We put the government on notice about their so-called third tranche of legislation. As I said before, I think that that legislation is only peripherally related to national security, because there are a multitude of other agencies that are accessing metadata on a warrantless basis. It is not really a national security bill at all. That, again, is a line that we call on the Labor Party to step back from. Start behaving like a party of opposition. I thank the chamber.