Senate debates

Thursday, 16 August 2018


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

11:12 am

Photo of Rex PatrickRex Patrick (SA, Centre Alliance) Share this | Hansard source

I rise to contribute to the debate on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018. It is the latest in a long line of national security bills that have been introduced into this parliament since the September 11 terrorist attacks in 2001. As outlined in the Bills Digest, this bill has three key purposes: to extend the provisions relating to control orders, preventative detention orders and the declared area offence, and terrorism-related stop, search and seizure powers, for a further three years; to extend the provisions relating to questioning warrants and questioning and detention warrants for a further 12 months; and to implement the government's response to certain recommendations made by the Independent National Security Legislation Monitor and the PJCIS in their most recent reviews of those provisions.

Centre Alliance will be supporting the bill. Centre Alliance supports appropriate powers being granted to our law enforcement and national security agencies to keep Australians safe. However, Centre Alliance also strongly supports robust oversight measures to ensure that the rights and freedoms that these laws are designed to protect are not compromised. I am pleased to see that the government has agreed to amend the Intelligence Services Act for the purpose of providing greater parliamentary scrutiny of these additional powers.

I note that the PJCIS, in its report on the bill, welcomed this. At paragraph 134 of the committee's report, the committee said:

The Committee also welcomes extension of its oversight to include Division 3A of Part IAA of the Crimes Act 1914 together with the additional reporting requirements that will be imposed. As the Committee noted in its earlier report, Committee oversight of the stop, search and seizure powers is in line with other review and oversight functions exercised by the Committee in relation to counter-terrorism.

It would come as no surprise that I want to address the need for the Intelligence Services Act to be amended to extend parliamentary scrutiny to the operations of Australia's national security and intelligence agencies. Most senators would be aware that I have attempted to effect this change through a series of amendments, for which I have been unsuccessful in getting support from this chamber. I've also attempted to refer amendments to the PJCIS but once again failed to get the support of the Senate.

On Tuesday this week, I introduced a private senator's bill, the Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Bill 2018. As stated in the second reading speech to the bill, the PJCIS is explicitly prohibited from reviewing the operations of Australia's intelligence agencies. The PJCIS is prohibited by the Intelligence Services Act 2001 from reviewing intelligence-gathering priorities and operations of Australian intelligence agencies or the assessments and reports they produce. The committee is further barred from examining sources of information, operational activities and methods or any operations that have been, are being or are proposed to be undertaken by intelligence and national security agencies. The PJCIS is also prohibited from reviewing the privacy rules made by ministers that regulate the communication and retention by agencies of intelligence information concerning Australian persons. These limitations on parliamentary scrutiny have reflected the historical reluctance of past governments and intelligence officials to trust members of parliament outside of the executive with the most sensitive intelligence information. However, the PJCIS can't hold these agencies properly accountable for their activities if the parliament continues to ban its own committee from reviewing their operations and other activities. Nor can expenditure and administration be adequately examined without consideration and reference to operational performance.

I acknowledge the advocacy of former Senator Faulkner, who strongly urged this broad reform. The Leader of the Opposition in the Senate, Senator Penny Wong, has also rightly observed that parliamentarians cannot outsource their duty to ensure the security of our nation and the people who entrust us with the responsibility of governing. This is absolutely true. If democratically elected MPs and senators cannot be trusted to deal directly with these questions, then there is something wrong with the relationship between the intelligence community and the parliament that it is ultimately meant to serve.

While I won't be moving amendments that reflect the bill I introduced, I will be seeking the support of the Senate next week to refer it to the PJCIS for inquiry and report. I note that Mr Dreyfus, in his second reading speech on this bill, said:

Labor continues to press for the significant changes to the role of the intelligence and security committee that were recommended by Senator John Faulkner in reforms, which were subsequently have been taken up in a private senator's bill by Senator Penny Wong, and by the independent intelligence review of 2017. These powers of oversight go beyond the expanded powers provided for in this bill, because necessarily the reviews which are reflected in this legislation are limited to the powers that are reviewed. We look forward to the government positively responding to its own review and assisting Labor with the implementation of the Faulkner reforms.

I want to make it clear that Centre Alliance fully supports our intelligence services, but they're not infallible in their judgement and they're not infallible in the execution of their tasking. No-one can be at the top of their game all of the time. So I'm not suggesting any criticism here.

I had the Parliamentary Library look into the times where our intelligence services' decisions have been called into question or the conduct or effectiveness of their operations has been called into question. It is quite a lengthy document, but it covers a number of decades. I will give you a few examples I have pulled from there: ASIS and the Chilean coup, I think it was in 1973; the Sydney Hilton bombing; the Sheraton Hotel incident; the Haneef affair; and, of course, the 2004 bugging of the East Timor cabinet rooms, which most people will be familiar with as the witness K story.

I note that people are still using the word 'alleged' when they refer to that bugging. But I think we can be absolutely satisfied that there was truth in that. There are proceedings on foot in the ACT in relation to what I presume is the revealing of those operations. I'm not conceding that on anyone's behalf, but I suggest that you can't bring proceedings about the release of information about a fictitious operation. That doesn't make any sense. So I think we can get away from calling the operation 'alleged'; it occurred. That operation occurred back in 2004, at about the same time that Jemaah Islamiyah were engaged in planning and actually bombing the Australian Embassy. At that time, we diverted our intelligence resources from the counterterrorism task to spying on the East Timorese during negotiations over oil rights in the Timor Sea.

East Timor has been a good ally and loyal friend of Australia. Their support of our soldiers fighting the Japanese in 1942 was vital. The East Timorese suffered 40,000 deaths due to aerial bombings and the Japanese destruction of villages suspected of sheltering Australian troops. Australian troops were protected—and I quote from Senator Neville Bonner—'at the expense of the lives of many, many East Timorese'. So I find it unconscionable, immoral and illegal conduct for our spying agencies, when we are engaged in a joint-venture negotiation with one of the poorest countries in our region, to spy on them to gain advantage during those negotiations. Hopefully, the AFP will conduct its investigations into the matter thoroughly. I put it that there has been a breach of ACT law in respect of that. If we had parliamentary scrutiny in place at the time, that operation may never have occurred. It was an operation that was authorised by the Liberal government—and perhaps the weight of the moral compass of the Labor Party at the time would have made sure that did not occur.

We now have an intelligence service that has 7,000 officials working in the field and a budget of about $2 billion. This parliament has extended its powers—and some of them are secret powers, powers exercised in secrecy. When we do that, we need to make sure we have the right checks and balances in place. I congratulate the government in this instance as they have increased a power, or extended the time associated with a power, to balance that correctly with parliamentary oversight. Parliamentary oversight is a good thing. Our allies use it. Our Five Eyes allies have parliamentary or congressional oversight. The USA has very, very strong parliamentary oversight. The Canadians have parliamentary oversight. The UK has parliamentary oversight. So we are an outlier. Parliamentary oversight of the intelligence services would strengthen the public's confidence in our intelligence services. I commend this bill to the Senate, but I strongly urge that we get on and deal with proper oversight of our intelligence services at the first available opportunity.


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