Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

I move opposition amendment (1) on sheet 5632:

(1)    Clause 4, page 2 (lines 13 and 14), omit the definition of terrorism laws, substitute:

terrorism laws means any proposed or current law or part of a law directed to the prevention, detection or prosecution of a terrorist act and includes, but is not limited to, provisions of the:

             (a)    Criminal Code Act 1995;

             (b)    Crimes Act 1914;

             (c)   National Security Information (Criminal and Civil Proceedings) Act 2004;

             (d)    Australian Federal Police Act 1979;

             (e)    Australian Security Intelligence Organisation Act 1979;

              (f)    Financial Transaction Reports Act 1988;

             (g)    Telecommunications (Interception and Access) Act 1979.

These amendments have been drafted in reaction to the recommendations in the very generous report of the Senate Standing Committee on Legal and Constitutional Affairs on this bill. I believe that, as a whole, those recommendations make the bill more flexible. Clause 4 provides a definition of the laws and gives some idea of key legislation—previous acts of parliament—which should be within the independent reviewer’s purview. The list is not exhaustive so that necessary flexibility is preserved. For that reason, I am prepared to accept the Greens amendment which comes under that same heading.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (1) on sheet 5636:

(1)    [Amendment to Senator Troeth’s amendment (1) on sheet 5632]

At the end of paragraph (g) of the definition of terrorism laws, add:

           ; (h)    any other law or part of a law of the Commonwealth under which a power is conferred or a liability is established in connection with, either directly or indirectly, a terrorist act (whether or not a terrorist act has occurred or will occur).

I would like to thank Senator Troeth for supporting this amendment. We wanted, essentially, to provide more guidance to the reviewer than we thought was written up in the original wording of ‘is not limited to’.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Greens amendment (1) moved to opposition amendment (1) be agreed to.

Question agreed to.

The Temporary Chairman:

The question now is that opposition amendment (1), as amended, be agreed to.

Question agreed to.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

I move opposition amendment (2) on sheet 5632:

(2)    Clause 8, page 3 (line 26) to page 4 (line2), omit the clause, substitute:

8 Functions of the Independent Reviewer

                 The functions of the Independent Reviewer are:

             (a)    at the request of the responsible Minister; or

             (b)    at the request of the Parliamentary Joint Committee on Intelligence and Security; or

             (c)    on the Independent Reviewer’s own motion;

to review terrorism laws in order to assess whether the laws and their operation:

             (d)    are an effective and efficient means of preventing, detecting or prosecuting terrorist acts; and

             (e)    alter fundamental legal principles, such as habeas corpus; and

              (f)    are consistent with Australia’s human rights obligations; and

             (g)    have any adverse social consequences.

This amendment details the functions of the independent reviewer. We agreed that it was necessary to comprehensively describe the role, function and criteria of the review. Amended clause 8 provides more detailed descriptions of the function—that is, it must assess laws to ensure consistency with human rights obligations. We also agree with Senator Ludlam’s amendment on that same clause.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (2) to (5) on sheet 5636:

(2)    [Amendment to Senator Troeth’s amendment (2) on sheet 5632]

At the end of paragraph 8(c), add “, at least every 2 years”.

(3)    [Amendment to Senator Troeth’s amendment (2) on sheet 5632]

Paragraph 8(f), after “human rights”, insert “, privacy and other international”.

(4)    [Amendment to Senator Troeth’s amendment (2) on sheet 5632]

After paragraph 8(f), insert:

            (fa)    continue to be necessary; and

            (fb)    are proportional to the extant threat of terrorism; and

(5)    [Amendment to Senator Troeth’s amendment (2) on sheet 5632]

At the end of clause 8, add:

        (2)    The Independent Reviewer also has the following additional functions:

             (a)    investigation of the manner in which relevant law enforcement agencies interpret and implement terrorism laws; and

             (b)    investigation of the use of their powers by relevant law enforcement agencies in interpreting and implementing terrorism law.

        (3)    The Independent Reviewer may, of his or her own motion:

             (a)    make submissions to parliamentary or other committees examining bills making, amending or otherwise affecting terrorism laws; and

             (b)    participate in reviews of terrorism laws, such as reviews by the Council of Australian Governments.

I will speak briefly to each one. Hopefully, they are fairly clear. Amendment (2) goes to the fact that it is not sufficient for the independent reviewer to examine each law only once. We think that they should be revisited. We have suggested provision for a two-year review of each of the pieces of legislation listed in Senator Troeth’s first amendment. Our amendment (3) essentially goes to what I mentioned in earlier debate on this bill—that is, how the amendments proposed by Senator Bob Brown benchmark the operation of the terror laws against Australia’s human rights standards. We have suggested a broader framing of the way that those human rights obligations are drafted.

Amendment (4) goes to the risk that the work of the independent reviewer may simply entrench the terrorism laws as a legitimate part of Australia’s legal landscape. In our view, there are some aspects of these laws which should simply be repealed.

The final amendment to speak to at this point, amendment (5), is that the antiterror laws are not simply words on paper; they are also procedures and practices of authorised agencies and institutions whose powers have been expanded, in some cases, significantly. We have moved to give the independent reviewer explicit permission to participate at his or her discretion in any of these other processes.

Question agreed to.

Amendment, as amended, agreed to.

I move Australian Greens amendment (6) on sheet 5636:

(6)    Clause 9, page 4 (line 12), omit “must”, substitute “may”.

Very briefly, amendment (6) goes to a point that was made several times during the committee inquiry—that the independent reviewer should be truly independent and not be unduly tied too closely to existing organisations. For example, we believe that the reviewer should have regard to investigations conducted by agencies such as ASIO, the AFP, the Ombudsman and so on, without being compelled to suspend activities on the basis of supposed duplication. There may be some benefit to the reviewer’s ability to provide an independent voice or verification of an investigation which may already be underway.

Question agreed to.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

by leave—I move opposition amendments (3) and (7) on sheet 5632:

(3)    Clause 9, page 4 (line 14), before “Australian Security”, insert “the”.

(7)    Clause 11, page 6 (line 16), after “Reviewer”, insert “under this section”.

These amendments, which refer to clause 9 and clause 11, make a drafting correction and a technical amendment.

Question agreed to.

by leave—I move opposition amendments (4) and (5) on sheet 5632:

(4)    Clause 10, page 5 (lines 5 to 8), omit subclause (4), substitute:

        (4)    Where the Independent Reviewer takes possession of, makes copies of, or takes extracts from documents, the documents, copies or extracts, as the case may be, will be held securely by the Independent Reviewer and within 6 months of the completion of the review:

             (a)    original documents or extracts from documents received from agencies must be returned to those agencies; and

             (b)    copies of documents or copies of extracts from documents held by the Independent Reviewer must be destroyed.

(5)    Page 5 (after line 21), after clause 10, insert:

10A Offences

                 A person who after being given a notice under subsection 10(1) or 10(5) fails to comply with the notice when required to do so or fails to answer a question that the Independent Reviewer requires the person to answer is guilty of an offence punishable on conviction:

             (a)    in the case of a natural person—by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months or both; or

             (b)    in the case of a body corporate—by a fine not exceeding $5,000.

These amendments detail the documents, extracts and copies that are to be made and also the offences which are to be detailed in the law.

Question agreed to.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I move Australian Greens amendment (7) on sheet 5636:

(7)    Clause 10, page 5 (after line 13), after subclause (5), insert:

     (5A)    If a person is required to attend before the Independent Reviewer under subsection (5), the Independent Reviewer may:

             (a)    require the person, before answering questions, either to take an oath or to make an affirmation in a form approved by the Independent Reviewer; and

             (b)    administer an oath or affirmation to the person.

We are seeking here to amend the original bill to empower the independent reviewer to require people to take an oath or an affirmation before providing information relevant to the reviews.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

I indicate agreement for this amendment. We believe that some of the questions that the independent reviewer may be asking a person are not normally the sorts of questions which may be asked under oath or by affirmation. I am prepared to agree with the Greens amendment.

Question agreed to.

by leave—I move opposition amendments (6) and (9) on sheet 5632:

(6)    Clause 11, page 6 (lines 6 to 15), omit subclause (3).

(9)    Page 6 (after line 19), after clause 11, insert:

11B Annual report

        (1)    The Independent Reviewer must, as soon as practicable after each 30 June, prepare and provide to the Prime Minister a report of the operations of the Independent Reviewer during the year that ended on that 30 June.

        (2)    The Prime Minister must cause a copy of a report provided under subsection (1) to be presented to each House of the Parliament as soon as practicable after the report is presented to the Prime Minister, subject to the Independent Reviewer’s certification that the report should be so presented and to the deletion of any part the publication of which the Independent Reviewer certifies may adversely affect national security or which the Independent Reviewer certifies should not be published on other compelling grounds.

These amendments deal with the annual report and the way in which it is presented to parliament. We believe that it is necessary for the annual report to be made, and that is detailed in these clauses.

Question agreed to.

I move opposition amendment (8) on sheet 5632:

(8)    Page 6 (after line 19), after clause 11, insert:

11A Protection from civil action

        (1)    Neither the Independent Reviewer, nor a person acting on behalf of the Independent Reviewer, is liable to an action or other proceeding for damages for or in relation to any act done or omitted to be done in good faith in performance or purported performance of any function or in exercise or purported exercise of any power conferred on the Independent Reviewer.

        (2)    Where:

             (a)    a complaint has been made to the Independent Reviewer; or

             (b)    a document has been produced, or information or evidence has been given to the Independent Reviewer;

a person is not liable to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the complaint was made, the document was produced or the evidence was given.

This amendment makes certain that the independent reviewer and a person acting on behalf of the independent reviewer will not be liable to an action or other proceeding for damages. It simply protects the person and ensures the complete independence that we wish for.

Question agreed to.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I move Australian Greens amendment (8) on sheet 5636:

(8)    Clause 12, page 7 (line 5), omit “5 years”, substitute “3 years”.

In the Senate Standing Committee on Legal and Constitutional Affairs inquiry into this bill, we received a variety of advice going to the tenure or the term of the reviewer. We feel that it is important, particularly if there is only to be one reviewer rather than our preferred option of three, that the tenure should be limited. We have proposed three years rather than five years.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

I regret that the opposition cannot agree to this amendment. I believe for security of tenure and a proper review such as that that we are instituting that this should be five years.

Question negatived.

by leave—I move opposition amendments (10) and (11) on sheet 5632:

(10)  Page 7 (after line 10), after clause 12, insert:

12A Remuneration

        (1)    Subject to this section, the Independent Reviewer must be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration is in operation, the Independent Reviewer must be paid such remuneration as is prescribed.

        (2)    The Independent Reviewer must be paid such allowances as are prescribed.

        (3)    Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

(11)  Page 7 (after line 14), after clause 13, insert:

13A Staff

        (1)    The staff necessary to assist the Independent Reviewer must be persons engaged under the Public Service Act 1999.

        (2)    For the purposes of the Public Service Act 1999:

             (a)    the Independent Reviewer and the APS employees assisting the Independent Reviewer together constitute a Statutory Agency; and

             (b)    the Independent Reviewer is the Head of that Statutory Agency.

These amendments simply make specifications regarding suitable remuneration and suitable staff for the independent reviewer.

While I am on my feet, I would like to make a very brief remark about Senator Wong’s unfortunate comments at the end of her speech during the second reading debate. To start with, up till this point the now government have gone along with or agreed that this position is a very necessary position. For them not to be agreeing with this private member’s bill I find an astounding backtrack on their supposed beliefs.

As well, as Senator Wong knows and as Senator Brandis so comprehensively pointed out, this bill has been in the parliament since March this year, firstly under Mr Georgiou’s stewardship and secondly under my direction since 23 June. So the government must know that it has been around.

That an office person from Attorney-General McClelland’s office rang me this morning and asked me to defer or withdraw the bill I found astounding. I also found it a complete lack of courtesy on Attorney-General McClelland’s part to have his office ring me rather than speak with me himself.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I generally have a lot of regard for Senator Troeth, but really! The first point is that there are a great many private members’ bills moved in this place. As the senator well knows, many of them sit on the Notice Paper and are not brought on for debate and vote. I am sure that, when Senator Troeth was in government, the government did not take a range of the private members’ bills that the Greens moved on a whole range of issues—social issues and environment issues—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

You always knew this was going to be debated in the chamber.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Just settle down, Senator Brandis. You can get on your feet—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

You always knew this was going to be debated in the chamber.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brandis, Senator Wong has the floor.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

As I said, there are many private members’ bills brought on—for example, one is being debated in general business today. When Senator Troeth was in government, I am sure that not every single private member’s bill moved by a senator was taken to the coalition party room. The point is that on, I think, 11 December it was determined by the Senate that this matter be given precedence.

I again remind senators that the opposition and the Greens have ensured we are unable to finish with the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 as a result of giving this precedence. That is fair enough and you are entitled to do that, but it has delayed the passage through the Senate of that legislation.

A private member’s bill being brought on for debate and vote is a very different situation, Senator Troeth—and I am sure you would concede that—to a private member’s bill being moved, as many are as a matter of course in this place.

In relation to the other issue, of the Attorney-General not calling you, I am sure he was extremely busy in the period prior to the House—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

It’s a professional discourtesy. You know that.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Senator Brandis, sometimes, really! There is a certain amount of pomposity people can deal with and then there is a limit, and to be honest with you—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

It’s a professional discourtesy. Don’t excuse it.

The Temporary Chairman:

Senator Brandis, will you stop interrupting.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I would say that I can recall a number of occasions when I was called by officers rather than ministers from the government when I was in opposition, but I am sure the Attorney-General will have regard to Senator Troeth’s remarks.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.