Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

The Greens have opposed this draconian legislation since its introduction in 2003. It was an unjustifiable and unnecessary overreach then and it's an unjustifiable and unnecessary overreach today, and that's why we'll continue to oppose this legislation.

This bill we're debating today, the Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019, will extend the operation of special powers relating to suspected terrorism offences in division 3, part III, of the Australian Security Intelligence Organisation Act 1979, the ASIO Act, to 7 September 2020. The Gilbert + Tobin Centre of Public Law is just one of many expert legal stakeholders that have argued that the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 was the most controversial piece of antiterrorism legislation passed by the Commonwealth parliament. Whether or not that remains the case today, with so many bills that deny fundamental human rights having been passed by the parliament since then, I'm not too sure, but it is still a very bad piece of legislation. In a 2016 report to parliament by the Independent National Security Legislation Monitor, the Hon. Roger Gyles AO, QC found the measures:

… are not proportionate to the threat of terrorism and are not necessary to carry out Australia's counter-terrorism and international security obligations.

This echoes concerns raised by the Public Interest Advocacy Centre in 2005, which also considered the powers inappropriately vested in ASIO, which is, of course, an inherently secretive organisation. Both reports recommended repealing these powers.

Before I go on to speak about the legislation itself, it's worth noting that if Australia had a strong charter of rights or bill of rights or human rights act this legislation could not exist. That's why similar legislation does not exist in our Five Eyes partners: the United Kingdom, the United States, Canada and New Zealand. None of those countries have legislation that is even broadly similar to this legislation, because, with their constitutional and legislated rights, this legislation simply could not exist in those countries. This is one of the many reasons why Australia needs its own charter of rights. Not only are we the only member of the Five Eyes countries without enforceable human rights protections at the federal level, we are also the only liberal democracy in the world without a human rights act or charter of rights.

This bill would continue in legislation a system of warrants that permits the Australian Security Intelligence Organisation to question and detain nonsuspects for the purposes of gathering intelligence about terrorism offences. This is a system that provides for the issuing of questioning warrants and questioning and detention warrants in relation to—and these can be pretty tenuous relationships—suspected terrorism offences where other means of collecting the relevant intelligence may not be effective. It is unique in liberal democracies around the world because it establishes a system, known as the special powers regime, that allows a national security agency to coercively question and detain a non-suspect citizen.

The main difference between a questioning warrant and a questioning and detention warrant is that a person issued with a questioning and detention warrant is able to be taken into custody, while a person issued with a questioning warrant is not. Where a questioning warrant can be immediate or after notification, a questioning and detention warrant is immediate. So, under a questioning and detention warrant, someone can basically be taken off the street without warning, held and interrogated without being a suspect in any crime. With a questioning and detention warrant, a non-suspect citizen as young as 16—so we are talking about children here—can be detained for an investigation period of 24 hours followed by seven days of detention for questioning. That is a total of up to nine days in detention without charge, even if they're not suspected of committing any crime themselves.

The reach of this legislation is not limited to people suspected of being involved in committing or planning to commit a terrorist offence. Under this legislation, a person who's not suspected of being involved in any way in a terrorism offence—that is, a nonsuspect—can be detained for longer than someone who actually is suspected of terrorist activities and is held for questioning by the Australian Federal Police under the Crimes Act 1914.

Then there are the criteria for both the questioning warrants and the questioning and detention warrants. Applications for questioning warrants and questioning and detention warrants are drafted by the director-general of ASIO and, if given consent by the Attorney-General, the application is then made to an issuing authority. Unlike the Attorney-General, who must be satisfied of five criteria, the issuing authority need only be satisfied of two criteria; whereas the criteria the Attorney-General must consider include the non-suspect's access to legal representation, reasonable grounds for questioning and detention, and consideration of alternative methods of collecting the intelligence. The only two criteria the issuing authority must be satisfied of are that the application is in the proper form and the Attorney-General's consent was properly obtained and that there are reasonable grounds for believing that the warrant may substantially assist the collection of intelligence that is important in relation to a terrorist offence.

As Burton, McGarrity and Williams argued in a 2012 paper published in the Melbourne University Law Review, the first criteria for the issuing authority does not require or allow a re-examination of the Attorney-General's decision that there were, or were not, other methods of intelligence gathering available, with the second criterion setting an unjustly low threshold for the issuing of a warrant because:

First, 'intelligence' is not defined in, or otherwise limited by, the legislation. Secondly, the collection of intelligence must only be 'important' (not 'necessary'). Thirdly, the person subject to the warrant need not actually possess any intelligence. Rather, it need only be believed that issuing the warrant will substantially assist the collection of intelligence: for example, the person may be able to point ASIO in the direction of someone who might possess such intelligence. Fourthly, 'in relation to' goes significantly beyond what might be regarded as the main aims of the Special Powers Regime, being to either prevent terrorist acts or enable the prosecution of terrorism offences. … Finally, the criterion adopts a generalised approach. It does not distinguish between: past, present or future offences; offences that are likely or unlikely to occur; and serious or relatively minor offences.

The combination of those five extremely low bars means that a non-suspect may be subjected to coercive questioning without any suspicion of wrongdoing on his or her part. Compounding these risks to fundamental human rights, the special powers regime also lacks adequate protection against self-incrimination, lacks appropriate access to legal advisers and lacks effective reviews and remedies—again, for Australian citizens, including in some cases children as young as 16 who are not suspected of committing any crime.

Our country's very quick to call out human rights abuses by foreign nations, as we've rightfully condemned the arrest and detention by China of Australian citizen Dr Yang Hengjun for his political views, yet this legislation we're looking to extend today is the kind of flat-out abuse of human rights that we're very quick to criticise other countries of but are ourselves very poor at delivering. There are many other examples I could go to, including the rampant abuse of human rights of refugees and people seeking asylum who've been detained on Manus Island and Nauru for over six years now.

As I said earlier, this legislation was overreach from the day it was drafted, which was just after the Bali bombings in 2002. Those bombings were a despicable and horrific event, but you don't save Australians by stamping out the Australian way of life and by trading away our freedoms that so many who came before us have fought and died to protect. But even legislators at that time must have been worried that this was an overreach because, of course, the initial legislation contained a sunset clause that would have seen these draconian new powers expire after just three years. History shows you that rights, once taken away, are very difficult to get back, and in 2006 the parliament renewed these powers and added a new 10-year sunset clause. Then, in 2016, the sunset clause was extended again, and again in 2018, and now here we go again.

It's worth pointing out that powers like these, once granted, tend to be abused. I'll just give one very quick example of the metadata retention laws that were passed by this parliament a few years ago. The government at the time argued that they were necessary to ensure the safety of Australians and the counterterrorism activities of the government. What do we find now? Those very laws have been used by local councils to bust people for having unregistered pets. I mean, seriously? If you want to talk about bracket creep, it's one of the biggest bracket creeps you'll ever want to see: counterterrorism laws used by local governments to prosecute people for having unregistered pets. Give us a break, please!

In 2016, with the second sunset clause almost expired, the Independent National Security Legislation Monitor reviewed the legislation and recommended that subdivision C of division 3 of part III of the ASIO Act relating to questioning and detention warrants should be repealed or cease when the sunset date was reached, that successive extensions of the sunset dates since 2006 should end and that the balance of division 3 of part III of the ASIO Act should either be repealed or not extended beyond the present sunset date. These powers should never have been created in the first place, but, considering they were, we totally agree with the view expressed in 2016 by the Independent National Security Legislation Monitor.

In 2018, the Parliamentary Joint Committee on Intelligence and Security also recommended the questioning and detention warrants be abolished. That same year the Parliamentary Joint Committee on Human Rights found questioning warrants and questioning and detention warrants were likely to be incompatible with human rights. As I said earlier, here we go again: a government ready and willing to trample all over these fundamental human rights once more.

As was argued in 2003, when these powers were first debated, these provisions potentially allow for the mistreatment of ethnic minorities in Australia, the suppression of dissent and the detaining and investigation of wholly innocent Australians.

An ideological struggle in favour of democracy and freedom cannot be won by giving up democratic values, freedom and respect for civil liberties.

Who argued that in 2003? Who have I just quoted from? The now Leader of the Opposition, Mr Anthony Albanese. I'm going to repeat the last bit that Mr Albanese said back in the day:

An ideological struggle in favour of democracy and freedom cannot be won by giving up democratic values, freedom and respect for civil liberties.

The Australian Greens couldn't agree more with Mr Albanese's position back in 2003, but I suspect we're about to fundamentally disagree with the position that the Australian Labor Party will today take on this legislation, because even though they're going to move amendments, which by the way the Australian Greens will be supporting, I predict that they will collapse in a screaming heap and vote in support of the government, when their amendments inevitably fail, in order to pass this legislation.

We do need to end the unquestioning bipartisanship on so-called national security issues. It is that bipartisanship that has been part of ensuring that over 200 pieces of legislation have passed through state, territory and Commonwealth parliaments in the last two decades that erode fundamental rights and freedoms in this country. We need to break down the closed doors of the Parliamentary Joint Committee on Intelligence and Security and ensure that the crossbench has membership of that committee.

It's also time for a new national security white paper so that we can have an informed debate as a country about the appropriate balance between keeping people safe in Australia and protecting our rights, freedoms and liberties. We should also properly fund the Independent National Security Legislation Monitor so that it can examine and report on new legislation in a timely way. By the words 'in a timely way', I mean before it's actually debated by this parliament so the debate and the decision-making of this parliament can be informed by the views of the Independent National Security Legislation Monitor.

We should also break up the Department of Home Affairs, which has led to an unprecedented consolidation of power under Minister Dutton, who has continually shown a disregard for the rule of law and a propensity to rampantly abuse human rights. We need to also strengthen protections for public interest whistleblowers. Since Australia remains the only liberal democracy in the world without a charter or bill of rights, we should of course enshrine our fundamental freedoms in law as a first step to where we should be ultimately aiming to get, which is an enshrining of rights and freedoms in our Constitution.

So, I say to senators today: please don't support this legislation. It's another step in the slow zombie shuffle that bipartisanship on national security has taken down the road to a surveillance state and a police state in this country. These are extremely dangerous powers. They should never have been created. But, given that we are where we are today, this bill should not pass, these powers should sunset and the Australian people should get back some of the rights and freedoms that this series of legislative amendments has removed from them.