Senate debates

Tuesday, 28 October 2014


Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; Second Reading

7:18 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | Hansard source

I will indicate that I will not be supporting this bill as it stands. I do acknowledge that we face a threat from ISIL, or Daesh, but any response we make to that threat needs to be measured and considered and needs to be effective, not counterproductive. My concern is that the provisions in this bill put in place increased security measures without the equivalent necessary oversight to make sure they are not abused. And I agree with the simple proposition put by Senator John Faulkner that enhanced power requires enhanced accountability. My concern is that there are enhanced powers. Some of these enhanced powers I believe are justified, but not having the framework of enhanced accountability is very dangerous in a democracy.

I commend the contribution Senator Fierravanti-Wells made in this debate. I think she is absolutely right: you need to engage with communities, not alienate them—and I think it is very important that we do not do so. I commend the tireless work Senator Fierravanti-Wells has done in engaging with the Muslim community in Australia in a way that is inclusive, in a way that is welcoming, in a way that I think is the right approach. And I will address that, because the programs to assist in the de-radicalisation of youths are important. But I worry that we need to do more and spend more to get the results that are required, because we are up against an enormous machinery of hate that is trying to brainwash young people, particularly young men, to commit acts of violence against others.

Let us put this in perspective in terms of our law enforcement and intelligence agencies. They already have significant powers. More worryingly, we have seen recently an example of an agency misleading the Inspector-General of Intelligence Services, the independent body to which these agencies are supposed to answer for their actions. This intentional misleading—which relates to an officer of ASIS, the Australian Security and Intelligence Service, allegedly pointing a gun at another government official who happens to be a member of the ADF in Afghanistan while intoxicated—clearly shows that there is very little respect for the IGIS amongst intelligence services. If you read between the lines, it seems that there was misleading—arguably intentional misleading—in respect of that.

This example of apparently lax oversight and negligible accountability is not what we need if we are going to hand over a new range of powers to our intelligence services. I thank Laura Tingle for her article in the Australian Financial Review last Friday headed 'Asking the question of who guards the guards'. Ms Tingle made the point that the Inspector-General of Intelligence and Security had just 13 staff at June last year yet was expected to be the watchdog on the activities of organisations that now employ thousands. ASIO alone had 1,900 staff at June last year. This is not a criticism of IGIS, as such, but it is a criticism of the lack of resources and the lack of powers to ensure accountability.

During the debate on the previous national security legislation, I moved a second reading amendment calling on the government to investigate establishing an independent committee to oversee Australia's intelligence services. In the second reading amendment, I pointed to the current examples of similar entities of some of our closest allies—the United States, the United Kingdom, Germany and elsewhere. There is, in the United States, judicial oversight, albeit secret. But there is a court that looks at these matters specifically. There is a parliamentary committee in the United Kingdom which has much more power than our equivalent parliamentary committee. That needs to be looked at very closely.

In Germany, for instance, the Federal Intelligence Service is the sole foreign intelligence service of the Federal Republic of Germany. As such, it reports directly to the Federal Chancellor. Oversight is as follows: firstly, article 10 of the German Constitution stipulates the privacy of correspondence—post and telecommunications. Exemptions may be granted only due to specified reasons. The G10 Commission is named after this article. Its monitoring activities consist not only of reviewing ministerial instructions to perform surveillance measures but also of collecting, processing and utilising personal data gathered by the intelligence services using these measures, as well as deciding on whether to inform those affected.

Article 45d(1) of the German Constitution says that the parliament shall appoint a panel to scrutinise the country's intelligence activities. Therefore, the intelligence agencies regularly submit to the Parliamentary Control Panel comprehensive justifications for their activities and for any matter of particular interest to the legislative branch. The Parliamentary Control Panel can also request additional reports on issues of concern, and employees of the intelligence services may contact the panel directly—a very, very important safeguard so employees of intelligence services can go directly to this parliamentary oversight panel. Further, the budget of the Federal Intelligence Service is kept secret, but a confidential committee, as part of the parliament's budget committee, is responsible for consulting on this budget and for monitoring expenses. It is comprised of nine members of the budget committee.

So there is an additional level of oversight in Germany, in the United States and in the United Kingdom—three of our closest and strongest allies—where they understand the need to have appropriate oversight. Again, I hark back to what Senator Faulkner said in a very good essay in the Financial Review last Friday. He worked from the simple proposition that enhanced power requires enhanced accountability.

In my view, there is a vital need to establish a committee based on the best of the best practices of the United States, of Germany and of the United Kingdom and elsewhere—democracies that understand the threat of terrorism and democracies that actually have a level of judicial and parliamentary oversight that we do not have. The PJCIS, while it does excellent work, has membership limited to the major parties, and it conducts many of its briefings and hearings in secret. I can understand that, but my concern is that it cannot comment on or inquire into operational matters. That does concern me.

While I understand the need for secrecy measures in some instances, I do believe that we could all benefit from more transparency, openness and accountability. I would also like to endorse Senator Faulkner's comments from earlier in this debate. He called for a comprehensive review of the oversight of Australia's intelligence agencies and recommended to the Senate proposals that have already been made by other organisations. We must act on these as a matter of urgency.

It is also important to remember that the changes proposed in this bill will not take place in a vacuum. That is why Senator Fierravanti-Wells' contribution was so important—about the need to engage with Muslim communities. This must not be seen as targeting a specific group, a specific religion, or people of specific ethnicities. It ought to be about targeting behaviour that is dangerous to Australia. The environment in this country can sometimes border on the febrile, and I think that we must act in a way so that—and I think Senator Fierravanti-Wells has been consulting, along with the Attorney-General, with communities around the country—we can diffuse those aspects of this debate.

I would like the quote from the human rights lawyer Geoffrey Robertson QC, during his appearance on the ABC's Q&A last night. Robertson said:

Australia has more anti-terrorism laws than any other country in the world. We've had 62 terrorism laws since 9/11. We don't need more. What our laws don't have are two things. The first, they don't have independent oversight. We don't have impartial judges giving orders and directing and approving warrants. It's entirely done within the intelligence establishment. But, secondly, and I think this is the important thing about the question, we don’t have, because law can't solve the problem of terrorism, we have to turn to community service. We have to turn to anti-jihadi organisations, de-radicalisation programs and this seems what Australia doesn't have.

He continued speaking of deradicalisation programs run in Britain:

But there is a de-radicalisation program that anyone who is - passport is cancelled is immediately put on. It involves, not only police, but the local imams, parents, social workers, psychologists, even a couple of returned jihadis are part of that program and I think this is what Australia is lacking at the moment - a proper de-radicalisation program that plugs into those who are identified as being vulnerable and on the - in danger of being lured overseas.

I think what Senator Fierravanti-Wells outlined—some $13 million spent by the government in terms of deradicalisation programs—is a good thing. That is welcome. I wonder whether we need to spend more. I believe that we do need to throw everything at this considering that we will be spending half a billion dollars in terms of the latest campaign in Iraq and in Syria in respect of combating the threat of ISIL—the real existential threat of ISIL. We need to look at that as well.

We also need to learn from the lessons of the past. We were part of the coalition of the willing back in 2003 when Saddam Hussein was toppled in Iraq. We all agree that Saddam Hussein was a dictator who was responsible for massive human rights abuses. But when I speak to people who come from Iraq and who despised Saddam Hussein, they say that, as a result of the American intervention of which we were part of, matters got much worse. Hundreds of thousands of Iraqis were killed in the sectarian violence that broke out. We need to learn very, very carefully from the recent lessons of history when it comes to what we do and how we do it to combat what is, clearly, a threat in the region and further abroad.

The government wants to put in place incredibly broad laws—ones that have raised specific human rights concerns—to address the specific problem of so-called home-grown terrorists. I want to make this clear so that it is not misunderstood by anyone: I believe there is merit in some of the proposals the government is putting up. I think there ought to be a reverse onus of proof in relation to someone being in a designated area then coming back to Australia. I think that it is very important that we make clear that you have to have a very good reason for being there—humanitarian purposes, you are there is a journalist reporting on the conflict zone. Anyone who spends six or 12 months in one of these designated areas ought to have a very good reason for doing so, and it is important that that is a watertight provision.

Going back to the previous bill, which I also opposed, I also want to make it clear that I did support the Palmer United Party's amendment to increase the penalty for someone disclosing the identity of an ASIO agent working in a covert operation or someone working with ASIO who may have been supplying them with information. If you identify someone in the middle of a covert operation, that could well be a death sentence for that person. So it is appropriate to have a maximum penalty of 10 years. My concern in respect of the previous piece of legislation—as it is with this—is that we have a situation where I believe the press is being unnecessarily muzzled, and I will address that briefly.

I think we also need to have a much greater emphasis—alluded to by Senator Fierravanti-Wells—in engaging with communities that are vulnerable to infiltration from terrorist groups. I think that you cannot sow hate and expect to reap love further down the track. You need to make it very clear—as I believe the government has begun to do with its deradicalisation program and its method of engagement—that we need to change the tone of our public discourse from exclusion to inclusion. We need to reach out, not pull away, and we need to build allegiances, not walls. So these are some of the crucial matters that we must address.

If it is the view of the government and the opposition that we need these laws in place, I believe that there are some measures that are justified. But without that additional oversight and accountability and scrutiny, these laws ought not to be passed. We must have that appropriate oversight. I have spoken before about my concerns, in national security terms, regarding the new offence outlined in section 35B of the recent legislation that was passed. This was the amendment that outlined the offence of disclosing information relating to a special intelligence operation. Media outlets have quite rightly been very concerned about this. I am very concerned about the impact this new offence will have on journalists' ability and willingness to report stories covering special intelligence operations. We must not forget—we must never forget—that the media plays a vital role in our democracy. Appropriate oversight by the media ensures that the public remains informed.

My amendments to this section of the previous bill were rejected in the Senate, and I am working now on further amendments to ensure that there is a public interest defence. I would urge when those amendments are drafted and prepared next week for the third tranche of national security legislation that they are looked at very closely by the government and the opposition because there has to be a bipartisan consensus in respect of this. For instance, in relation to section 119.7 subsection 3 of this bill, which relates to the offence of publishing recruiting information in Australia, one journalist has raised with me concerns about how that would be applied and whether that could be misapplied in a way that would muzzle journalists from reporting how terrorist organisations operate—even if they were not reporting in a way to encourage people joining those terrorist organisations but to warn of the sinister recruiting techniques. There are real concerns in respect of that. There must be a public interest defence for journalists. It is very important in our democracy that we have this.

Last week, News Corp group co-chairman, Lachlan Murdoch, delivered the Keith Murdoch Oration at the state library of Victoria. In it he muses whether his grandfather Keith Murdoch's famous letter to then Prime Minister Fisher about the disastrous Gallipoli campaign would have landed him in jail if it had occurred today. He said:

… our Government is introducing legislation that includes jailing journalists for up to 10 years if they disclose information that relates to a "special intelligence operation".

Of course, it is left ambiguous what a "special intelligence operation" is, as it is left up to government agencies to decide.

Lachlan Murdoch poses a very pertinent question. Would the Gallipoli campaign have been a special operation, he asks. Would Keith Murdoch have been arrested with Ashmead-Bartlett's letter and spent the next 10 years in jail? As Lachlan Murdoch rightly identified, his grandfather's letter was a declaration that our nation had a right to know the truth. He also pointed out this year's Freedom House annual index of media freedom found that global press freedom has fallen to its lowest level in more than 10 years. Twenty years ago, Australia was listed ninth on the index. Today we are 33rd, just behind Belize. We cannot afford to limit these freedoms any further.

I cannot support this bill as it stands for a number of reasons. The overarching reason is that, with these increased powers, we do not have increased levels of accountability for our intelligence agencies and increased levels of scrutiny and checks and balances on our freedoms. For me, it is a limitation on human rights and on the freedom of the press which only emphasises the idea that we can sacrifice anything in pursuit of national security. Without proper oversight and limitations I cannot support this bill. I call on the government and the opposition to address these concerns as a matter of urgency, particularly in respect of section 35P which I see as interrelated in respect of this. I look forward to debating these make matters in the committee stage. I will, of course, consider every amendment on its merits. These are matters which we must deal with sooner rather than later because if we do not ask the question of who guards the guards then our democracy is the lesser for it.


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