Tuesday, 28 October 2014
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; Second Reading
May I take this opportunity to thank honourable senators for their contributions to the second reading debate on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. I single out for particular thanks and mention the contributions of Senators Fawcett and Senator Faulkner. As members of the Parliamentary Joint Committee on Intelligence and Security, Senators Fawcett and Faulkner made important observations and contributions that have resulted in recommendations that the government has decided to implement through a series of government amendments, which have been circulated and which I will shortly move.
May I say that Senator Faulkner—and, Senator Xenophon, you mentioned this in your contribution—published last Friday, through the Lowy Institute for International Policy, a very thoughtful paper on this area of policy, extracts of which were published in Friday's Australian Financial Review. The approach which the government, with the support of the opposition, has taken to the preparation of this bill reflects the attitude and approach outlined by Senator Faulkner in that paper, which, if I may summarise it, is the approach of saying: we do, in this dangerous time, need to give the law enforcement and national security agencies strong powers but we also need to balance those strong powers with strong safeguards and strong oversight mechanisms. I believe that this legislation achieves both of those objectives and meets both of those criteria. And the fact that the opposition have decided to support this bill reflects the fact that they are of the same view. Both sides of politics accept that the right balance between necessary powers and appropriate safeguards has been achieved.
In particular, one of the recommendations of the PJCIS, which the government has accepted, is that that committee, rather than the Parliamentary Joint Committee on Law Enforcement, should have oversight over the Australian Federal Police's counter-terrorism function. That is new in our system of parliamentary oversight and it will mean that the PJCIS will have complete visibility of the terrorism environment and the counter-terrorism efforts of all relevant Australian authorities.
A number of senators in their contributions expressed confusion about the nature of the security threats that we all face and therefore the necessity of the legislation. I might say, in particular, that confusion was evident from contributions made by senators from the Greens party. It is not surprising that senators from the Greens party misunderstand, underestimate and naively disregard the significance of the threats that Australians face. I suspect that the specialists in this field and the good men and women who staff Australia's law enforcement and national security agencies, in particular ASIO, are in a better position to make an informed and mature judgement about that matter than the Greens party.
As Attorney-General, I have accessed daily intelligence reports that over recent weeks and months have pointed to an increasingly concerning picture. The government has attempted to be transparent but measured in sharing this picture with the entire Australian community. We operate in this chamber in a political environment, but there are many respects in which this debate transcends politics and that is why, more frequently than is customary, the government has decided to ask not ministers—I have chosen not myself as the Attorney—but, rather, people who are not political at all, the Director-General of ASIO, first Mr Irvine and now Mr Lewis, and also the Commissioner of the Australian Federal Police, Commissioner Colvin, to explain to the Australian people in a measured, judicious, informed and professionally expert way their assessment of the terrorist threat. These people are not politicians. Politicians are sometimes accused—and sometimes, I am sorry to say, correctly accused—of rhetorical exuberance, but not the Director-General of ASIO, not the Commissioner of the Australian Federal Police. They serve no political masters. The views that the government expresses in this debate are not political views; they are the views of people like Mr Irvine, Mr Lewis and Commissioner Colvin.
What I hope unites all of us in this chamber is a belief that our first priority as a government is to ensure the safety and security of our citizens and, by securing that, ensuring the safety and security of our liberal democracy.
On 12 September, as you know, Mr Acting Deputy President, the Prime Minister announced that, based on an assessment by the security and intelligence agencies, the government had raised the national terrorism public alert level from medium to high. Raising the national terrorism public alert level was to ensure that Australians were aware of the increased likelihood of a terrorist attack occurring in Australia and that they remained vigilant. Of course, articulating the nature of the threat is a role not confined to government. On an almost daily basis the media is reporting about the activities of Australians and other nationals in Syria and northern Iraq, activities that are horrifying and abhorrent to all Australians.
Those who take a naive and insouciant view of the nature of the terrorism threat evidently regard what is plain for all to see in our media, as well as what has been emphatically warned of by our national security experts, as unreliable or unworthy of being taken seriously.
If I may say to senators of the Greens party, who will never have the burden and responsibility of government: it is the burden and responsibility of government to take seriously matters that they treat flippantly.
We are increasingly witnessing the activities of people who have returned to their home countries from the conflict zones or who have been prevented from travelling and have turned their ambitions on their home countries. That is a problem that Australia suffers, along with other western democracies. Make no mistake: returning and frustrated foreign fighters represent a threat to us all.
Up to this point, domestic counterterrorism investigations have mainly concentrated on local actors who have shown the intent to act on Australian soil but lacked or required time to develop the necessary capability. The Syria and Iraq conflicts have changed the terrorist threat environment, providing a significant opportunity for Australians to travel overseas and develop the necessary capability to undertake terrorist attacks. In addition to that capability, operational agencies are concerned that Australian foreign fighters will return further radicalised and hardened by their experiences fighting overseas. There is a wealth of intelligence product that indicates that is so. To that end we must prevent the creation of a cadre of Australians willing and able to engage in terrorism in Australia, to recruit others to travel overseas and engage in hostile activities and to raise funds for terrorist organisations. This bill provides important measures that will enhance the capability of Australia's law enforcement, intelligence and border protection agencies to protect Australia from the threat posed by returning foreign fighters and those individuals within Australia supporting them.
Following the introduction of the bill, on 24 September 2014, I referred it to the Parliamentary Joint Committee on Intelligence and Security. That committee conducted hearings under the chairmanship of Mr Dan Tehan, the member for Wannon. I want to take this opportunity to thank all members of that committee and in particular the chair, and the deputy chair, Mr Anthony Byrne, from the Labor Party, for the hard work they put into that task and the very conscientious and thoroughgoing way in which they acquitted it.
The committee made 37 recommendations, concluding in a recommendation that the bill be passed. The report was tabled out of sittings on 17 October last. It recommended a number of amendments that will improve the clarity of the provisions of the bill and ensure the powers provided for in the bill are used appropriately and subject to proper review.
As I announced on 22 October, the government has decided to accept all of the amendments, and I will shortly move amendments to give effect to them. In addition, the government will table a replacement explanatory memorandum consistent with the recommendations of the PJCIS that further elaborate on the justification for various of the measures in the bill. In particular, the government has responded to recommendation No. 4 by amending the explanatory memorandum to clarify that it is open to the Commonwealth Director of Public Prosecutions to have regard to any public interest in the disclosure of information when considering whether to initiate a prosecution from a disclosure of information in relation to a delayed notification search warrant. I can inform honourable senators that I have written to the Commonwealth DPP to confirm that instruction.
The government's response to PJCIS recommendation No. 31 advised that I should provide to the parliament a further explanation of the necessity of the proposed definition of 'serious Commonwealth offence', for the purposes of the Customs Act, and how it would enable a greater role of Customs in dealing with national security threats or terrorist activities. Let me now do so.
The current definition of 'serious Commonwealth offence' is limited to types of offences listed in section 15GE of the Crimes Act, and to those offences that carry a maximum penalty of three years. The proposed definition of 'serious Commonwealth offence', which would capture offences that carry a maximum penalty of 12 months, is required to enable the Australian Customs and Border Protection Service to effectively deal with national security threats and terrorist activity, as well as enhancing its capacity to respond to broader criminal activity. Examples of offences that currently would not be captured are: where a person travels on a false passport, which is prohibited by sections 31 and 32 of the Australian Passports Act; where a person fails to report movements of physical currency or bearer negotiable instruments, in contravention of the Anti-Money Laundering and Counter-Terrorism Financing Act; and where a person imports, introduces or brings into a port or other place in Australia a disease, pest or substance containing a disease or pest, in contravention of the Quarantine Act. This is particularly sensitive at the current time, considering the threat posed by diseases such as Ebola. As the first point of our border security, it is appropriate for the ACBPS to be able to investigate suspected criminal activity, to ensure the integrity of our borders.
In addition, the government supports PJCIS recommendation No. 8, for that committee to be notified of any proposed regulation to alter the listing of a terrorist organisation by adding or removing a name or alias, and allow the PJCIS to review any proposed change during the disallowable period.
Finally, I want to take the opportunity of closing the second reading debate to clarify a reference in the government's response to PJCIS recommendations 13 and 21, which deal with the dates for the various provisions to sunset. The PJCIS recommended sunset and statutory reviews occur within set periods from the date of the next federal election, having regard to the need for certainty when providing a sunset for extraordinary powers. The government has opted to sunset the provisions two years after the third anniversary of the 2013 federal election—the government believes this gives effect to the PJCIS recommendation, while providing certainty regarding the duration of these powers—so that the actual date on which the sunset will occur is specified in the bill.
I note that a number of honourable senators have expressed their support for the implementation of the committee's recommendations. We look forward to working constructively with members of this chamber on the relevant amendments to the bill in committee.
Might I conclude by observing that as with the first tranche of national security legislation—the National Security Legislation Amendment Bill—so too this bill is a fine example of the parliamentary process working as it ought to work. The government sent this bill, as it sent the National Security Legislation Amendment Bill, to the relevant joint committee of the parliament, a committee that, if I may so say, comprises many of the most senior statesmen from both sides of parliament. That committee had a very close look at the legislation. It proposed recommendations which, in every respect, if I may say so, were constructive. Although in many respects they were matters of relatively slight degree, they were nevertheless constructive. The government, in a spirit of cooperation, accepted all the recommendations on this occasion, as we accepted the recommendations last time. That, as I say, is the way parliament is meant to work: there is a dialogue, a dialectical process, between the executive government and the parliament—particularly the more serious-minded members of parliament, speaking through the committee system. So once again I want to thank the Parliamentary Joint Committee on Intelligence and Security for its work. I also want to thank a number of individual crossbench senators who have been good enough to speak to me about certain provisions of this legislation. These include Senator Lazarus, Senator Lambie, Senator Leyonhjelm, Senator Day and Senator Xenophon.
The work in which we are engaged tonight is the work of patriots. It is the work of both sides of this parliament addressing in a timely but considered, methodical, purposeful and calm way an immediate threat to the safety of our nation, by a process of fine tuning proposals, at the executive government level, at the parliamentary level—in particular, through the committee system—to ensure that the right balance between security and freedom is maintained. I thank all honourable senators. I should also go out of my way to thank my opposite number from the Labor Party, the shadow Attorney-General, Mr Dreyfus, with whom I have had meetings and with whom my officers had many meetings concerning this legislation, for his very greatly appreciated contribution to the process.
We have, I think, landed where we ought to land in dealing with this problem. The recommendations of the PJCIS which require amendment to the bill, I will move momentarily as we proceed into the committee stage. Those that require further explanation through the explanatory memorandum have been addressed through the latest iteration of the explanatory memorandum, and those which required explanation by way of comment from government I have sought to address in these second reading remarks. On that note, let me close the second reading debate, and thank all of those colleagues in this place and in the other place who have made a constructive contribution to the process.