Senate debates

Thursday, 16 August 2018


Counter-Terrorism Legislation Amendment Bill (No. 1) 2018; Second Reading

10:46 am

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

I rise to speak on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018. Labor has a track record that demonstrates our determination to ensure that law enforcement and national security agencies have the resources they need and the powers that are necessary to keep Australians safe. Labor also believes strongly in the importance of upholding the rights and freedoms that define us as a democratic nation, and I'm sure you would agree with that, Mr Acting Deputy President Marshall. It's essential, in designing legislation to protect our way of life, we do not compromise the very rights and freedoms that define us as a democratic nation and that foster harmony in our community.

National security is a fundamental duty of all parliamentarians, but, in putting in place laws to keep us safe, we must ensure those laws are consistent with the kind of society we're seeking to protect and to strengthen. Labor approaches questions of national security in a bipartisan spirit. However, bipartisanship does mean that Labor will simply agree with every measure the government proposes. Bipartisanship means that Labor will engage constructively with the proposals put forward by the government with a view to testing and, where possible, improving those measures.

It was in this spirit of constructive bipartisanship that, through the Parliamentary Joint Committee on Intelligence and Security's statutory review process, Labor worked hard over 2017 and 2018 to improve several security and law enforcement powers on the Commonwealth statute books. The important work of the bipartisan intelligence committee has seen a significant review into police stop, search and seizure powers, the control order regime and the preventative detention order regime in division 3A of part 1AA of the Crimes Act 1914. As well, there's been a review by the intelligence committee of sections 119.2, and 119.3 of the Criminal Code that declared areas provisions. There was a further and important review of the intelligence committee that resulted in its report, The Parliamentary Joint Committee on Intelligence and Security review of the operation, effectiveness and implications of division 3 of part III of the Australian Security Intelligence Organisation Act 1979.

This bill responds in part to these three reviews. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 was introduced into the other place on 24 May 2018. The Attorney-General referred the bill to the Parliamentary Joint Committee on Intelligence and Security for a review the same day. The government's complete adoption of the Phocis's recommendations is a welcome continuance of those longstanding conventions that the government of the day implements without reservation the bipartisan recommendation of the intelligence security. The intelligence and security committee's review of the police stop, search and seizure power provided under division 3A of part 1AA of the Crimes Act 1914 recommended that these powers be continued.

The bill inserts new provision CA into division 3 of part IAA of the Crimes Act 1914 to require reporting to the minister, the Independent National Security Legislation Monitor and the intelligence committee on the use of stop, search and seizure powers under division 3 of part IAA as soon as practicable after the exercise of power or powers, and an annual report to the minister. This recommendation is entirely in keeping with Labor's abiding commitment that our law enforcement and security agency officers should have the power needed to keep Australians safe. However, the report also recommends that these powers, which are extraordinary, should also be the subject of future review by the parliament and should not be allowed to simply fall into the permanence of the Commonwealth statute book. Similarly, the intelligence committee's recommendation that the control over the regime provided for under division 104 of the Criminal Code be continued, with the provisions sunsetting after three years. The bill adopts these recommendations. These control order powers have only rarely been used. The small number of occasions where they have been used is something that the intelligence committee commented upon in its report.

One feature of the bill is that it introduces new section 104.11A in the new subdivision CA of the Criminal Code. This would enable the court to vary the terms of an interim control order where there is a written agreement between senior Australian Federal Police members and a controlee. The explanatory memorandum states that this new section is designed to facilitate minor and uncontroversial variations to an interim control order, such as changed mobile telephone numbers, change of residential addresses or change in the educational or employment arrangements of a controlee. Labor supports this change as well because it is clearly desirable that there should be a speedy and, as far as possible, informal mechanism for the variation of the control order that deals with minor matters of this nature.

This bill also inserts a new section 104.28AA into the Criminal Code to set out the limitations on the issuing court's abilities to make cost orders in control order proceedings. Under proposed subsection 104.28AA(1), the issuing court must not make an order for costs against the controlee. However, if the issuing court is satisfied that the controlee has acted unreasonably in the conduct of proceedings, it may order costs against the controlee to the extent of the unreasonable conduct. Labor considers it essential that all the powers considered by this review be available to our agencies for as long as they are necessary to ensure the peace, safety and security of the Australian community.

However, Labor also considers powers such as these must continue to be seen and understood as extraordinary. These powers were brought into our criminal law and the law enforcement framework to meet the complex circumstances that have faced security and law enforcement agencies over the last two decades. Because these powers are extraordinary, it is essential that they are subject to sunsetting and continued parliamentary oversight through regular review of the intelligence committee. It was for this reason that the intelligence committee made the recommendation, which the government has also adopted, to amend the Intelligence Services Act for the purpose of providing greater parliamentary scrutiny of these powers. This is something that the intelligence committee, in its report on this bill, has welcomed.

I also note that the bill extends the sunset period for the declared areas provisions contained in the Criminal Code. The bill inserts a new exception to the declared area offences in 119.2(1) for individuals performing official duties for the International Committee of the Red Cross. This is a welcome protection for people in organisations carrying out humanitarian work in some of the most dangerous conflict zones in the world. The bill also amends schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 to provide:

… that the decisions of senior AFP members to provide or refuse consent to vary interim control orders under new section 104.11A of the Criminal Code will not be reviewable under the ADJR Act.

The bill extends the sunset date for the ASIO questioning and detention powers under division 3 of part III of the Australian Security Intelligence Organisation Act 1979 by 12 months to 7 September 2019. In paragraph 1.32 of its report on the bill, the intelligence committee commented on this particular provision in the bill in these terms:

The Committee notes that while the Bill implements one recommendation from the Committee's report into ASIO's questioning and detention powers, the remainder of that report (including the Committee's recommendation for repeal of the questioning and detention warrant power) is still being considered by the Government. As noted above, the intent of this recommendation was that there be sufficient time for a reformed ASIO compulsory questioning framework to be developed and then reviewed by this Committee.

This bill is somewhat unusual in that it responds to a single recommendation of the intelligence committee's report on ASIO's questioning and detention warrant power. While it did recommend the extension of the powers in division 3 of part III of the ASIO Act, which includes the powers provided for questioning and detention warrants, I note that the committee also recommended that the ASIO questioning and detention warrants regime should be repealed. This is a power that has never used by ASIO and, in light of the fact that ASIO is an intelligence agency and not a law enforcement agency, it's a power that Labor agrees is unnecessary because of the fact that ASIO works very closely with the Australian Federal Police. It's also worth noting that the two previous Independent National Security Legislation Monitors had recommended, before this earlier report of the intelligence committee, that this power be repealed.

It's important to note again that this bill does not repeal the ASIO questioning and detention warrant power. Indeed, the effect of this bill is to extend for a year a power that the PJCIS has recommended should be repealed. It's understood, and the intelligence committee has noted that it understands, that in extending both ASIO's powers, the questioning and detention warrant power and the questioning warrant power, the government simply is seeking to leave the whole regime in place for a period of 12 months while the government seeks to work through a replacement regime for that. Labor accepts that the short extension of the whole regime is appropriate, as did the intelligence committee, in order to allow time for a reformed compulsory-questioning framework to be developed.

It's worth noting that the government has accepted all the Parliamentary Joint Committee on Intelligence and Security's recommendations in respect of the approximately 10 national security bills that have been brought to this parliament since 2014. While this is the first occasion we're aware of that the government has seen fit to extend a power that is the subject of a repeal recommendation, we in Labor thank the government for its continued commitment to the implementation of the PJCIS report recommendations. We look forward to the full implementation of this recommendation. It's Labor's view that finding the right balance between our security and our rights and freedoms is a critical ongoing task that all parliamentarians must engage in.

Because new threats to our national security may suddenly arise or diminish as a consequence of events unfolding overseas or indeed in our own country, it's particularly important that our national security laws and capabilities are, to some extent at least, never taken for granted as a set-and-forget proposition. It was in recognition of the need for an ongoing review of our national security laws that Labor established the Office of the Independent National Security Legislation Monitor, and it was in recognition of the ongoing nature of this function that Labor fought hard for the retention of the monitor, even as the Abbott government announced in 2014 that the office would be abolished, in the misguided belief that its purpose was somehow complete. I'm pleased that the then Abbott government eventually backed down on its proposal to abolish the Independent National Security Legislation Monitor. The continued worth of the monitor has been shown in this bill, which picked up in a very real sense the 2017 review of the stop, search and seizure powers by the then Independent National Security Legislation Monitor, the Hon. Roger Giles AO.

I also note that the government's own independent intelligence review conducted by Michael L'Estrange and Stephen Merchant, which reported in the middle of last year, recommended that the intelligence committee should be given a broader power of oversight. I think that there would be general support in this place for the expansion of the intelligence and security committee's oversight role in light of that recommendation of the government's independent intelligence review.

We in Labor have a great respect for the law enforcement and national security officers who are currently serving our nation. We also acknowledge that the laws that we make also play a role in the safeguarding of our rights and freedoms. Members of the federal parliamentary Labor Party recognise that in Australia, as in many other similar democracies, the powers of intelligence and security agencies have been strengthened and expanded significantly in recent years as a consequence of an increasingly complex and unpredictable security environment. Labor agrees that the maintenance of public safety in the current security environment requires enhanced powers for the agency charged with this critical responsibility.

However, with legislative changes extending those powers, the requirement for reliable, effective external oversight and other safeguards is always critical to maintaining an essential level of trust in the community about the vital work of our security agencies. Labor will always work to keep Australians safe and at the same time will ensure that the rights and freedoms enjoyed by all Australians are upheld. Getting this balance right can be a challenging task, but we always approach this task in a bipartisan and constructive manner which should leave the Australian community in no doubt that Labor will always seek to ensure that the requirements of our safety and security are proportionate and balanced against the fundamental rights and freedoms that we hold dear as a nation.


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