Senate debates

Tuesday, 28 October 2014


Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014; Second Reading

6:09 pm

Photo of John FaulknerJohn Faulkner (NSW, Australian Labor Party) Share this | | Hansard source

Before question time in this second reading contribution I was making the point that the life span of too many sunset clauses in security legislation has been too long and that it is simply not possible to predict the nature and extent of terrorist threats over a 10-year period, which some of those sunset clauses were. Giving future sunset clauses around a three-year life span is much more appropriate to meet the immediate threats to national security and to give a new parliament with a fresh perspective the opportunity to reconsider their necessity. I acknowledge that the government has accepted the PJCIS recommendations for substantially reduced time frames on sunset clauses for controversial provisions in this bill and the decision by the government in response to the work of the PJCIS I say is a good one. A mandatory review by the PJCIS assisted by the legislation monitor review should be conducted before expiry of a sunset clause provision. The committee should undertake a comprehensive review of the terms and operations of the legislation and gather information from stakeholder agencies as well as take public submissions and make considered recommendations to the parliament.

Not only has oversight of the intelligence agencies, in my view, failed to keep pace with their burgeoning role and powers but it has been decades since the effectiveness and adequacy of the oversight framework has been critically examined. It is time to satisfy the Australian community, the parliament and the agencies themselves that we have got this right. The time has come for a thorough review of the current arrangements for oversight of Australian intelligence agencies. I believe that such an inquiry should encompass the role, powers and scope of existing oversight mechanisms and consider the adequacy of the legislative framework which governs oversight, the degree to which it is coordinated and comprehensive and whether the resources allocated to such bodies are adequate.

Enhanced power requires enhanced accountability. The greater potential for that power to infringe on individual liberties, the greater the need for accountability in the exercise of that power. This is not to suggest that our security and intelligence agencies are acting perniciously or misusing their powers but in the relatively recent past those powers were used inappropriately with consequent erosion of public trust.

Not only has oversight of the intelligence agencies failed to keep pace with their burgeoning role and powers but it has been decades since the effectiveness and adequacy of the oversight framework has been critically examined. In my view, and I hope this is a view shared around the parliament, it is time to satisfy the Australian community, to satisfy the parliament and to satisfy the agencies themselves that we have got this right. I commend this approach to the Senate.

6:13 pm

Photo of Fiona NashFiona Nash (NSW, National Party, Assistant Minister for Health) Share this | | Hansard source

I table the replacement explanatory memorandum relating to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

6:14 pm

Photo of Stephen ConroyStephen Conroy (Victoria, 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 (Foreign Fighters) Bill 2014. I am pleased to serve as a member of the Parliamentary Joint Committee on Intelligence and Security which reviewed this bill. This bill is the latest phase in an ongoing process of updating our national security legislation. The threats that Australia faces are constantly evolving, and our security apparatus must also evolve to keep pace with them.

The most notable recent development has been the movement of Australian citizens to other nations to participate in foreign wars. We know that around 160 Australians have already become involved with extremist groups in Iraq and Syria either through travelling to the region or by providing support from within Australia. If they successfully join up with extremist groups, foreign fighters learn the skills, develop the networks and adopt a hardened ideology that makes them a serious threat to Australians if they return home. I support the great work that our security agencies do in identifying individuals who are planning to leave Australia to join organisations such as ISIL. It is vital that parliament provides our national security agencies with the tools that they need to keep Australia safe. That is what this legislation does, and that is why Labor supports it.

The bill contains a broad range of measures designed to address the foreign fighter threat and amends more than 20 Commonwealth acts. The bill also implements recommendations from the 2013 COAG review and a number of reports from the former Independent National Security Legislation Monitor. The new measures in this bill include a new power for interim suspension of passports. This will assist agencies in proactively addressing concerns that an individual may be preparing to go overseas to commit an offence. These powers will lower the evidence threshold required for a passport to be suspended temporarily and without notifying the individual whose passport has been cancelled. These new measures will assist security agencies to respond quickly when new concerns are raised. They will also allow agencies to cancel a suspect's passport without potentially threatening an ongoing investigation.

This bill merges the Crimes (Foreign Incursions and Recruitment) Act into the Criminal Code and provides harmonisation with the code's anti-terror provisions. These new and updated provisions provide a standardised legislative approach to terrorism related offenses and update the definitions of certain offenses.

The bill creates a new offense for entering, or remaining in, an area declared by the foreign minister. Declared areas are places where listed terrorist organisations are engaged in hostile activities—with parts of Syria and northern Iraq being the most relevant current examples. This will assist our security agencies to identify individuals and ensure that they have or had a legitimate reason for entering a known area of terrorist activity. Individuals will not have committed an offense by entering a declared area if they are providing humanitarian aid, visiting family or working as a journalist or have other wholly legitimate reasons.

There are changes to the law of evidence to facilitate the use of overseas evidence in prosecutions of foreign fighters. This change simply reflects the changing world in which we live. In our interconnected world, Australian courts need greater flexibility when determining whether to use evidence from overseas in terrorism related proceedings. This allows the great work that Australian security agencies do with their international colleagues to be used, where appropriate, to prosecute individuals who have broken Australian laws.

There is a new evidence-tampering offence. This is one activity that I think many Australians would be surprised to know is not already against the law. Currently, if a warrant is issued under section 34L(6) of the ASIO Act, it is not an offence to destroy evidence that is requested. That is, very rightly, being corrected here.

This bill is lowering the legal threshold for arrest without warrant for terrorism offences. This will allow an AFP officer to arrest someone without a warrant where they 'suspect on reasonable grounds' that someone has committed or is committing a terrorism related offense. The new threshold provides the AFP with the ability to move quickly to prevent a terrorist act from occurring or to disrupt the planning of a terrorist act.

There is a new power to seize bogus travel documents. Again, this is probably another area where many Australians would be surprised that a new law is even required. While it is current practice for customs and border protection officials to prevent individuals from using bogus documents to enter or leave Australia or to apply for a visa, it is perhaps surprising that they do not currently have the power to seize those documents. This new power will allow customs and border protection officials to seize bogus documents, thus preventing the individual using them from trying their luck a second time.

This bill will provide for information-sharing between AUSTRAC and the Attorney General's Department to help combat terrorism financing. The impact that the global financing of terrorism has had on the emergence of terrorist groups like al-Qaeda and ISIL cannot be understated. It is vital that Australia does all that it can to prevent money leaving Australia if it is destined for a terrorist organisation anywhere in the world. AUSTRAC hold a great deal of financial intelligence and they are experts in this field. This change will allow them to work more closely with our security agencies to ensure that any information they gather can be used in the fight against global terrorism.

There is the introduction of delayed notification search warrants for terrorism offences. This new power will allow the AFP to conduct a search of a premises without the occupier of that premises being made aware of that search. Allowing the AFP to gather information through the execution of a search warrant, while allowing the investigation to remain covert, is considered especially valuable. The AFP now have significant operating experience investigating terrorist groups and they believe that this new power will greatly assist their investigations into particularly resilient groups.

The bill also includes measures to extend the sunset clauses for legislation empowering: the AFP control orders; the ASIO questioning and detention powers; and the AFP preventative detention orders. The extension of the sunset clauses on these powers has been done in recognition of the ongoing nature of the terrorist threat to Australia and the importance of these powers in our fight against terrorism. These powers are particularly important as they provide security agencies with proactive measures of dealing with terrorist threats.

There have also been some changes to the control order regime in response to the COAG review, which recommended some additional safeguards. It is important that these safeguards remain in place so that the community can be assured that these powers continue to be used effectively and efficiently to combat terrorism.

The bill creates a new offence for 'advocacy of terrorism', and the introduction of 'advocacy of terrorism' as the grounds for proscription of a terrorist organisation. It will now be an offence to intentionally urge or counsel the commissioning of a terrorist act. This is a sensible new law, as there can be little doubt that the decision to spread a message of hate, division and violence has no place in Australian society. This sends a clear message that we will not sit by while cowards encourage others to murder and maim, thinking themselves safe from our laws.

The bill also provides for the expansion of the power to collect biometric information on Australian citizens at airports. This new technology is the cutting edge of counter-terrorism efforts in Australia and around the world. It is vital that Australia does everything it can to secure its borders, and this cannot be done unless the correct identity of everyone seeking to arrive or leave the country can be assured. I was pleased that the PJCIS was able to ensure that additional information, like iris and fingerprint information, will not be included in the biometric information collected.

As a member of the PJCIS, I am pleased to see that the government has accepted all of the 36 recommendations. Key recommendations from the committee include amending sunset periods for a number of new and existing powers to ensure that these powers are only used for as long as they are necessary. Another recommendation relates to additional reviews of these powers to ensure that they are operating as intended and that they successfully provide security agencies with the tools that they need to keep Australians safe.

I wanted to echo some of Senator Faulkner's comments about the need for greater scrutiny while there are greater powers being endorsed by the parliament. As I have outlined here, there are greater powers—important and necessary powers—but there are also important and necessary safeguards which are needed and they will continue to be needed. There will be debate about those oversight powers, and I welcome that and I think that all in this chamber should welcome that debate.

In summary, this bill will provide Australia's security agencies with the updated toolkit that they need to protect Australians from terrorism. These measures are reasonable and proportionate, given the threats that we now face. I commend the bill to the Senate.

6:24 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

It is with no great pleasure that I rise tonight to speak on this bill. I add my contribution to that of our spokesperson, Senator Penny Wright. I want to acknowledge and congratulate her and her staff for pulling together a remarkable dissenting report—given the extraordinary time pressure that the crossbenchers, opposition senators, committee staff and, most particularly, expert witnesses—who were brought together to assess this bill that the government proposes to shotgun through this place—were under. I do not use that term 'shotgun' lightly, but it is apt when you look at the process by which this government is putting this bill forward. I want to quickly sketch what has led us to this sorry place that we are in today with this bill.

This is the second of two national security bills, although the government is proposing that a metadata retention bill also be included in the series. I do not include that in a set of three because I think it is only tangentially related to national security, but this one does. I will say at the outset that the general premise of the government is sound in being concerned about people returning from conflicts overseas after potentially coming into contact with extreme ideologies or being steeped in those ideologies and returning home with potentially post-traumatic stress disorder after being involved in goodness knows what kind off violent conflicts. It is an issue that has been acknowledged across the spectrum, but I do question whether this bill makes any substantive or meaningful contribution towards protecting people from foreign fighters. That is not to say that the issue does not exist; it has of course existed for years. I would be interested to know, for example, whether the government has given any thought to combatants on either side who might have travelled to Gaza during Israel's recent bombardment there or whether they somehow are not to be considered within the scope of this legislation.

This bill would normally have been submitted to the Senate Standing Legal and Constitutional Affairs Reference Committee, which my colleague Senator Wright chairs, but the Legislation Committee, which Senator Ian Macdonald chairs, decided not to assess the bill and it was instead sent to the Parliamentary Joint Committee on Intelligence and Security. After it came to power last September, the government eliminated the crossbench spot on that committee—Senator Faulkner made some comments in that regard not too long ago. It is a committee that excludes the crossbench, who make up a representation of 18. It is the largest ever representation in this chamber—not just the Greens—with people from right across the political spectrum and right across the country who have been blocked from assessing the bill and talking to expert witnesses. Then the bill is brought back in here as a fait accompli with a set of amendments agreed to by the opposition, as Senator Conroy has just outlined. So there was no involvement of the crossbench or of Senate Standing Legal and Constitutional Affairs Committee. It has been a very rapid process, which nearly all of the witnesses, who did manage to pull high-quality submissions together, acknowledged—and too fast to properly evaluate.

The National Security Legislation Monitor, as Senator Wright acknowledged in her contribution, has been vacant since April. That is the office that is meant to assess whether counter-terrorism legislation is necessary and proportionate. That is the measure with which the government holds the potential future office of the monitor in contempt—in very low regard—because the government has ignored a substantive amount of the recommendations that Mr Walker SC made in the last series of reports that he tabled on issues of direct relevance to this bill. You have not even bothered to re-appoint the office; you have been happy to leave that lie vacant since April. Senator Brandis is always proud to come in here and say that it was one of his colleagues, Senator Judith Troeth, who brought that bill forward. It was a private senator's bill that I co-sponsored and brought through here. It did not pass for well over a year, but, nonetheless, the office existed until April when the government thought it could wipe it out because that is how little it cares about oversight and accountability. It is disgusting.

The Inspector General of Intelligence and Security deals only with the aftermath—deals with issues at the end of the pipe—and does not really have a policy-evaluation role on whether laws like this are necessary or proportionate. That is where we have been left. Perhaps the minister at the table can correct me, but it is my understanding that at about 12.30 tomorrow there will be a gag motion moved and this debate will be shut down. That is treating this chamber with contempt. Whether you support the bill or not, whether you support the amendments or not, this process of simply shotgunning legislation as dangerous as this through this place is absolutely appalling. Why exactly is the government in such a hurry? Yes, I agree that there is a legitimate public policy issue with combatants returning from violent conflicts overseas. Australians have been transiting in and out of Syria, through the gruesome civil war there, for three or four years that we know of. Why the sudden urgency over the last couple of weeks? People can draw their own conclusions.

And, of course, the opposition has simply given this bill a free pass, as they did with the ASIO Bill. After the bill had passed we saw a remarkable outpouring of regret from people as diverse as shadow minister Albanese—I guess speaking in a private capacity—Greg Sheridan, from The Australian; Janet Albrechtsen; and an entire spectrum of commentators around civil rights, civil society and industry. I wonder whether we are going to see a similar performance from the Labor spokesperson on this bill. It is, once again, left to the crossbenchers to provide the opposition in this country. I do not know what Senator Lambie is going to say, and I will not speak for the other crossbenchers, but it appears that the crossbench is the last remaining place in this chamber where critical thought on such bills resides.

Anthony Byrne, whom I hold in quite high regard, was chair of the Parliamentary Joint Committee on Intelligence and Security last year and I think he is the deputy chair of the committee now. He made some really perceptive comments a couple of months ago about the counter-terrorism legislation. Before ISIS really got a grip on western Iraq—although it had obviously been festering in Syria for a long period of time—Mr Byrne commented in an interview:

It is best that we have these debates around legislation as fraught as this in the light of day without some kind of pressure, without having to operate in the context of some kind of security emergency or heightened state of alarm. It is best that we hold these debates in a more measured way than that.

I think he is quite correct. Of course, what he left out is that the reason he presumably failed to move for that is that he knew the Labor Party would not be able to withstand the onslaught and would cave in. That is why it is best to be having these conversations in a more measured way—and, of course, we not. By this time tomorrow this bill will have been sent back to the House and will be on its way to being law. Again, it is left to the crossbenchers to provide that critical thought.

From my analysis, and the detailed and extremely valuable dissenting report that Senator Penny Wright has put forward, what we see is a mash-up of different causes. Some measures are sensible and necessary. Some measures are redundant because there are already provisions in criminal law that cover those offences. It makes it look much more as though somebody just wanted to draft some laws to look as though we are doing something, to be able to call a press conference and say we have passed some new laws. Actually, many of the things in this bill are redundant because offences have existed for a long period of time for the kinds of incitement to violence and criminal conspiracy that this bill, for some reason, thinks it is making an improvement on. Thirdly, there are measures that are simply dangerous and should not be in Australian law. Those obviously include the measures that Mr Walker, SC, believes should be taken off the statute books and not be given those additional sunset causes.

The Greens recommend that the bill not be passed in its current form. I think it is a great tragedy that the committee stage debate, where we actually get to have a reasoned discussion and debate about amendments, is likely to be cut short tomorrow by this gag motion that the government seems to be intending to move. Preventive detention orders should be removed from the Criminal Code. Control orders should be amended in line with recommendations by the Independent National Security Legislation Monitor, whom Senator Brandis seems to hold in high esteem—except he wanted to abolish the office and has not bothered to appoint another one. At least have the grace to read the reports that the guy produced, since his primary mandate was to assess precisely these kinds of clauses and work out whether they are necessary and proportionate.

The Greens will also be opposing the schedules of the bill that seek to expand the collection, use and sharing of biometric material in airport passenger processing systems. This is one of the most troubling aspects of the bill. It goes to schedule 5—the use of automated border processing control systems to identify particular individuals in immigration clearance. Actually, this will pass substantive automated surveillance technologies across the entire travelling population. And those measures proposed in schedule 6, as the dissenting report points out, seek to extend the use of biometric material as part of the advanced passenger processing system. This can impact on the privacy of a vast number of people who are suspected of nothing at all.

That is why I think the Privacy Commissioner told the Parliamentary Joint Committee on Intelligence and Security that a privacy impact assessment should be undertaken. But there is nothing in sight; the government does not appear to be interested in that at all. The commissioner said:

Such an assessment could be done in a way to help inform the bill to see whether any additional safeguards need to be built into the legislative base to add additional protections to that information.

And isn't it extraordinary that the minister representing in this capacity was still tabling explanatory memoranda to a bill that is still under development—apparently—even though we have been debating it in here for several hours. That is the kind of debacle you walk into when you bring a bill through here were such a rush. Nearly everybody who made a submission on this bill acknowledged that it was being done much, much too quickly. And we have not heard from any coalition spokesperson thus far about the case for this extra ordinary haste.

The Privacy Commissioner emphasised 'the importance of ensuring that any expansion of existing powers accords with community expectations about the handling of personal information' He said:

This balance can be achieved by ensuring that where the handling of an individual's personal information is authorised in the broader interests of the community, including upholding national security, those activities are accompanied by an appropriate level of privacy safeguards and accountability.

I am sure that the Labor Party believe that that accountability has been baked into this bill—and we, respectfully, strongly disagree.

I want to draw the chamber's attention to a joint statement on this legislation, the Foreign Fighters bill, titled 'Don't rush through unnecessary counter-terror laws that erode democratic rights and freedoms'. It was countersigned by 43 separate organisations. They make the case that the government denies our elected representatives and the community the opportunity to fully debate the changes—again, making the case for the extreme urgency that has been pressed. They make what I think is a profoundly important point. I will read briefly from the beginning of the statement:

The Australian Government has an important duty to protect the community from terrorism. At times, laws can legitimately limit the rights of individuals for the purpose of countering this threat, provided the limitations are necessary and proportionate.

In fact, national security laws and the protection of human rights share complementary goals; both are concerned with protecting Australians from harm.

The dichotomy that is put to us from the Prime Minister's office down—that we need to give up some of our rights in order to increase security—is exposed quite elegantly in this statement as false:

… national security laws and the protection of human rights share complementary goals; both are concerned with protecting Australians from harm.

You do not increase one by obliterating the other, yet that is precisely what this bill does.

The idea that agents or police can enter your home, or enter the home or premises of somebody who is not actually suspected of any offence, and not even have to notify anybody that that has occurred until months afterwards is characteristic of a police state. Preventative detention is characteristic of a police state. These are very, very dangerous powers that we play around with here, and once they are on the statute books, as Mr Walker quite correctly points out, they are inordinately difficult to get rid of. That is why the Greens believe, firstly, that the bill should not pass in the current form and, secondly, that the government—perhaps with the support of the opposition; I do not know—should rethink the unnecessary haste with which this legislation is being bashed through the parliament. The one thing that we do not want to see is a repeat of what happened after the ASIO bill. That bill was passed late at night in extraordinary haste and then in the following days the editorial pages, the TV shows, and the op-ed opinion pieces that came out said, 'What the hell have we done? How did we let this happen? Why was this done?' We are hoping for that kind of critical thinking and analysis before the bill passes, not after.

We put the government on notice about their so-called third tranche of legislation. As I said before, I think that that legislation is only peripherally related to national security, because there are a multitude of other agencies that are accessing metadata on a warrantless basis. It is not really a national security bill at all. That, again, is a line that we call on the Labor Party to step back from. Start behaving like a party of opposition. I thank the chamber.

6:39 pm

Photo of Linda ReynoldsLinda Reynolds (WA, Liberal Party) Share this | | Hansard source

I rise today in support of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. This bill introduces measures to support Australia's security agencies to ensure that Australians are as safe and secure as we can make them, without stripping away the freedoms we value and, in fact, are fighting to protect.

National security must always be a primary priority of our national government, but so too must the preservation of our democratic freedoms. These are two seemingly incompatible policy objectives; to balance them is never easy and is always rightly contested in this place. There is no doubt, however, in my mind that the Islamic State is a threat to our democratic values, our people, our institutions and our Australian way of life. Their attempt to gain resources, ground and manpower, both in Australia and abroad, must be resisted.

In 1986, Margaret Thatcher noted in a speech to the British parliament:

… terrorism thrives on a free society. The terrorist uses the feelings in a free society to sap the will of civilisation to resist. If the terrorist succeeds, he has won and the whole of free society has lost.

She also noted:

Terrorism has to be defeated; it cannot be tolerated or side-stepped. When other ways and other methods have failed—I am the first to wish that they had succeeded—it is right that the terrorist should know that firm steps will be taken to deter him from attacking either other peoples or his own people who have taken refuge in countries that are free.

My own experiences in government, dealing with the threats of al-Qaeda and Jemaah Islamiah, taught me that terrorists do not respect compassion; they see it as a weakness for them to exploit.

This threat is real, and we have seen it before. Between 1990 and 2010, 30 Australians are known to have fought or trained with extremist groups in conflict zones at the time, including Pakistan and Afghanistan. Of these, 25 returned to Australia, 19 became involved in activities in Australia prejudicial to our national security and eight were convicted of terrorism related offences. Since that time, the evolution of technology and social media in an increasingly globalised world presents new opportunities for those who would seek to do us harm and new national security challenges for us all to address. The phenomenon of foreign fighters who are recruited by these new means underscores the connection between events overseas and the security of our own communities—as the recent events in Canada remind us. Today, at least 185 Australians have become involved with extremist groups in Syria and Iraq by travelling to the region, attempting to travel to the region or supporting groups operating there from Australia.

Senator Leyonhjelm might be right that a 17-year-old from Bankstown is, to paraphrase him, 'an idiot'. But what Senator Leyonhjelm did not tell you is that, while he is 17 and he may be an idiot, he is now a radicalised and trained terrorist. His age is immaterial to his intent and his ability to do us harm should he return to Australia. History has shown us time and time again that child soldiers, once radicalised, are often the most brutal.

This bill introduces a range of measures to strengthen Australia's counter-terrorism legislative framework, and ensure that our domestic security agencies are empowered to do their jobs on our behalf. A new offence will make it illegal to intentionally counsel, promote, encourage or urge the doing of a terrorist act. There have been suggestions that this law will impact on free speech; however, as with everything, there must be a balance between protecting the rights of free speech and protecting the rights of individuals to go about their lives without the threat of terrorism.

Further, what has not yet been acknowledged by some opposite is that this bill does contain safeguards within the provision designed to protect free speech. The offences makes reference to the existing defence of 'acts done good faith' to protect the implied freedom of political communication. It will also exclude acts like publishing a report or commentary about a matter of public interest in good faith. The bill also seeks to extend sunset clauses for a number of measures, including control orders, preventative detention orders, ASIO questioning, and questioning and detention orders.

I welcome the fact that as a result of the PJCIS report the sunset clauses will be reduced significantly from what they were originally proposed to be. I believe these powers are essential components of Australia's anti-terrorism legislative framework. They play a crucial role in mitigating, deterring and responding to terrorist threat Australia and extending these sunset provisions will allow future governments to reassess the security environment and determine whether these powers are still required. The bill provides more powers to our security agencies to deal with what I believe is a clear and current threat of terrorism within Australia posed by foreign fighters seeking to return to our country. It will also improve Australian border security measures and introduce measures to cancel welfare payments for persons involved in terrorism.

This bill is an essential component of the government's reform to national security legislation. The threat posed by foreign fighters returning to Australia is real. It is not overstated nor is it something that can be ignored. Australians who travel to fight with the Islamic State should not be allowed to bring their abhorrent brand of extremism back to Australia. As technology and threats change, so must legislation. These changes must be responsive and timely to ensure that our security organisations are able to effectively respond to these emerging threats, as they clearly have today.

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill is both necessary and appropriate legislation at this time. I congratulate the Labor Party for their bipartisan approach and constructive amendments to this bill. I believe this bill strikes a clear balance between security and individual freedom, and I commend it to the Senate.

6:47 pm

Photo of Jacqui LambieJacqui Lambie (Tasmania, Palmer United Party) Share this | | Hansard source

I rise to briefly contribute the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 and acknowledge the sincere, well thought out and robust contributions other members of this chamber from both sides have made to this legislation. I would also like to thank and pay tribute, once again, to the public servants, security and police officers who risk their lives to protect us from our enemies.

I have real concerns about the impact that this legislation will have on the civil rights and individual democratic freedoms of Australian citizens. I understand that those civil rights and freedoms were hard fought for and that members of our ADF shed blood and died for these freedoms. Those freedoms and rights are a legacy and a precious gift of previous generations, which I cherish and reflect on every time I visit the graves and war memorials in Tasmania. So I am very reluctant to vote for legislation which brings about the lessening of these rights and freedoms for Tasmanians.

However, with the recent and unprecedented rise of Islamic extremism; their vile killings, torture and beheadings of innocents; and the Islamic extremists' declaration of war on Australia and other western nations, followed up with coordinated attacks around the world, there is a clear and pressing social and national security need to strengthen the laws that will enable the brave and courageous public servants, security and police officer do their jobs and protect us all from the maniacs and psychopaths who would do us harm for no other reason than that we will not submit to their will and barbarous medieval culture.

I would like to thank the Attorney-General and head of ASIO for their briefing on this legislation and I am glad that they have taken on board my suggestion regarding a shortening of the sunset clause time frame. The management and carriage of these laws must have strong oversight. The government's sunset time period was 10 years; I would have liked to see a review by the parliament every two to three years. The government has agreed to every four years. This is a good outcome for two important reasons: firstly, to ensure that no inefficiencies or misconduct have crept into the administration and delivery of these laws over time; and to respond to the rapidly changing types and levels of threat posed by the terrorists, their allies and their agents.

Our defence experts tell us that we are in for a long fight—it could be 100 years—against the Islamic terrorists, so a shorter period of review than 10 years contained in this bill would be an appropriate amendment to this legislation. In other words, the sunset clause must allow for review every three years. It is also worthwhile to note in the context of this debate that this legislation and its specific measures are a reaction to an aggressive, hostile ideology which has been adopted by brutal Islamic foreigners and their supporters and allies in Australia. If we are going to find a cure for the disease of extremism, we must attack the extremists' ideology and we must root out and expose the extremists supporters who are living among us, who are more than likely sustained by our welfare entitlements.

This legislation is clearly an attempt to regain control over the radical Islamic groups in Australian. The PM could also regain control over the radical Islamic groups in Australia who are freely preaching hate and urging their followers to strengthen their allegiances to foreign powers. This is by introducing new laws which strip them of the right to vote and receive public benefits. It is easy for the PM to order troops to the Middle East and make out that he is tough on terrorism; but as witnessed by an Islamic radical group's recent rally in Western Sydney and their public statements from its leaders, the PM has for a long time turned a blind eye to the real threat of home-grown terrorism in our own backyard.

Mr al-Wahwah, the president of the radical Islamic group Hizb ut-Tahrir—if the media has reported correctly—has made a speech which contains implied threats of violence against the Australian people and has clearly declared his personal allegiance and his group's allegiance to an anti-democratic foreign power. Under section 44 of the constitution he and his group's members would not be allowed to stand for the Australian parliament because of their divided loyalties and obvious allegiances to foreign powers.

Therefore the Prime Minister should introduce new laws which expand the legal principle of non-allegiance to a foreign power found in section 44 of the Constitution, which strips people who are members of groups like Hizb ut-Tahrir of their Australian citizenship and right to vote. I wonder how many of the people at Mr Al-Wahwah's rally in Western Sydney who are advocating for sharia law and loyalty to foreign powers enjoy Australian social services payments, entitlements and democratic freedoms? If they are going to carry on with that sort of rot the first thing we should ensure is that they do not receive any government funds or entitlements, that they do not have the right to vote and that they are deported immediately. Our taxes should be exclusively reserved for people who love Australia, who have undivided loyalties to our nation and who do not have formal or informal allegiances to foreign powers. They should not be used for those whose loyalties are clearly with foreign religious leaders and foreign anti-democratic laws. I will repeat what I have said before: if your loyalties and allegiances to foreign powers are so strong that you want to live under a foreign law and antidemocratic customs then please leave us in peace and get out of Australia.

These laws are dealing with the symptoms of sick, depraved minds driven by perverted ideology. I think there is also an opportunity to introduce new laws based on section 44 of our Constitution, which says that you cannot have 'allegiance, obedience or adherence to a foreign power' and expect to represent the Australian people in this parliament. These new laws could strip people of their Australian citizenship, right to vote, right to receive Australian taxpayers' money and, in some cases, deport or jail those who clearly have allegiance, obedience, or adherence to a hostile foreign power.

After those general comments and overview of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 I now turn to the specific provisions of the bill. Following the passage of this bill, an organisation can be listed as a terrorist organisation if the organisation directly or indirectly counsels, promotes, encourages or urges the doing of a terrorist act. Item 64 of schedule 1 would amend the criteria by which an organisation can be listed as a terrorist organisation under the Criminal Code. Paragraph 102.1(1A) of the Criminal Code will be amended by the addition of the words 'promotes and encourages'.

The control order provisions in division 104 of the Criminal Code allow a range of restrictions to be placed on an individual's liberty for the purpose of preventing terrorist acts. For example, an individual subject to a control order may be required to remain in a specified place at specified times and to wear an electronic monitoring device. They may also be prohibited from being in certain areas or from communicating or associating with specified individuals.

Currently, a senior member of the Australian Federal Police may seek the Attorney-General's consent to request an interim control order from an issuing court if he or she (a) considers on reasonable grounds that the order would substantially assist in preventing a terrorist act; or (b) suspects on reasonable grounds that the person has provided training to, or received training from, a terrorist organisation. The issuing court may then make an interim control order if it is satisfied, on the balance of probabilities, of either of those grounds. Where subsequently confirmed by the issuing court, a control order may last for a maximum of 12 months.

The bill would expand the grounds on which a senior AFP officer may seek the Attorney-General's consent to request an interim control order. It would do so with regard to both grounds (a) and (b) set out above. First, with regard to ground (a), the officer would need only suspect—rather than 'consider'—on reasonable grounds that the order would substantially assist in preventing a terrorist act.

Regular search warrant schemes require the officers executing a warrant to provide a copy of the warrant to the owner or occupier of the premises and allow that person to observe the search. This means that once a search is conducted, suspects are aware of police interest in their activities. This can present difficulties for law enforcement, particularly in the context of investigations into multiple suspects over an extended period.

A submission made to the parliamentary joint committee says:

If members of a terrorist group are alerted to investigator's knowledge of their activities, the success of the law enforcement operation could be jeopardised. For example, a suspect whose premises are searched under the current regime would be notified of police interest in their activities. A suspect could then undertake counter-surveillance measures, change their plans to avoid further detection, relocate their operations, or relocate or destroy evidence of their activities. It would also provide a suspect with the opportunity to notify their associates, who may not yet be known to police, allowing the associates to cease their involvement with the known suspect, destroy evidence or avoid detection in other ways.

As the name suggests, 'delayed notification search warrants' fall between regular search warrant schemes and covert search warrant schemes. Covert search warrant schemes allow searches to be conducted without any notification of the owner or occupier of premises in the same fashion as other covert methods, such as surveillance devices and telecommunications interception. Victoria, Queensland, Western Australia and the Northern Territory provide for covert search warrants for suspected terrorism offences.

Like control orders, preventative detention orders—PDOs—were introduced in the Commonwealth jurisdiction by the Anti-Terrorism Act (No. 2) 2005, following on from the COAG agreement. The purpose of the PDO regime in division 105 of the Criminal Code is to allow a person to be taken into custody for a limited time period in order to either prevent an imminent terrorist act from occurring or preserve evidence of, or in relation to, a recent terrorist act.

A member of the AFP may apply to a senior member of the AFP for a PDO against a person 16 years of age or older, for an initial period of 24 hours. An order extending the period of detention to 48 hours may only be granted by certain members of the judiciary and certain members of the AAT.

In 2005, the PDO regime was reviewed by the Independent National Security Legislation Monitor—the INSLM—and the COAG review committee, both of which recommended the repeal of the provisions. Under the bill, the PDO regime would be retained and amendments made that would make them more accessible. The INSLM made three recommendations for amendments to the PDO regime if it were, against its main recommendation, retained. The bill would implement one of them in full and another in part.

For entering or remaining in a declared area, the bill would create a new offence punishable by 10 years imprisonment which would be made out where a person enters or remains in a declared area. The Minister for Foreign Affairs would be able to declare an area in a foreign country as a declared area where he or she is satisfied that a listed terrorist organisation is engaging in hostile activity in that area. It would be a defence under subsection (3) for the person to show that they entered or remained in the declared area solely for a legitimate purpose. The legislation provides a list of legitimate purposes, such as providing humanitarian aid, making news reports or making bona fide visits to family members.

While the government is not technically reversing the onus of proof, as the prosecution must still prove the elements of the offence beyond reasonable doubt, the offence is framed in such a way that it has essentially the same effect. Criminal liability will be prima facie established wherever a person enters or remains in a declared area. No other physical elements of the offence are required. The government need not establish, for example, that the person travelled to the area for the purpose of engaging in terrorism or some other illegitimate activity. This is problematic because it is that purpose, rather than the mere fact of travel, which renders the conduct an appropriate subject for criminalisation.

The bill would establish a new offence that would be made out where a person advocates the doing of a terrorist act or a terrorism offence and is reckless as to whether another person will engage in that conduct as a result. This offence would be punishable by a maximum of five years imprisonment. To the extent that the proposed offence encompasses genuine cases of incitement—namely, where a person urges or encourages another person to commit a terrorism act or offence and does so intending that the conduct will occur—it is superfluous. By virtue of section 11.4 of the Criminal Code, it is already an offence to incite a terrorist act or a substantive terrorism offence.

Currently, section 102.1(2)(b) of the Criminal Code provides that an organisation may be listed by the Governor-General as a terrorist organisation if it advocates the doing of a terrorist act. An organisation advocates terrorism where it directly or indirectly counsels or urges the doing of a terrorist act; or directly or indirectly provides instruction on the doing of a terrorist act; or directly praises the doing of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading a person, regardless of his or her age or any mental impairment that the person might suffer, to engage in a terrorist act. The bill would amend this definition in line with the offence for advocating terrorism so that it also includes the promotion and encouragement of terrorism.

Part 3 of the Foreign Evidence Act 1994 currently provides for the admission of evidence received from foreign countries where the Attorney-General makes a formal request for that material, the evidence has been taken on oath or affirmation, and the material purports to be signed or certified by a judge, magistrate or other officer of the foreign country. As noted by the INSLM, such requirements are not practical where the foreign country in question does not have the same levels of government administration—for example, because the country is in a state of civil war.

The bill would overcome these limitations by explicitly allowing foreign material to be adduced in terrorism related proceedings. It would give Australian courts the discretion to exclude that material where it would have a substantial adverse effect on the defendant's right to a fair hearing. Furthermore, the material could not be adduced where the court is satisfied that the information was obtained through torture or duress. The safeguards included in the bill relating to the defendant's right to a fair trial and material obtained through torture or duress are positive inclusions.

Currently, section 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978—the foreign incursions act—provides a maximum penalty of 20 years imprisonment where a person enters a foreign state with intent to engage in hostile activity. Hostile activity is defined as including the overthrow of the government, armed hostilities and the unlawful destruction of property belonging to the foreign state. Section 7 provides a maximum penalty of 10 years imprisonment where a person does any act that is preparatory to that substantive offence. The bill would repeal the foreign incursions act and recreate these offences in the Criminal Code with some amendments. First, it would raise the penalty for both offences to a maximum of life imprisonment. It would also expand the definition of hostile activity to include subverting society. It would encompass serious damage to any property, serious interference with any electronic system or serious harm to any person. The section could apply, for example, to a private dispute between individuals where one person seriously damages another person's house and endangers the person's life in doing so. Such conduct might be criminal, but it should not attract a maximum penalty of life imprisonment under the foreign incursion offences.

I note and applaud that, for those persons whose passports have been cancelled or refused or visas have been cancelled under this legislation, the government can end all governments payments they are making to the person. The government is not required to provide reasons for its decision to cease the payments where doing so would require them to release security sensitive information.

In closing I note that changes are being made in passport suspension, emergency visa cancellation and Customs powers, which the Palmer United Party supports. We support this legislation after careful consideration. I end as I began by making the point that the Palmer United Party is very reluctant to support legislation which brings about the lessening of fundamental democratic rights and freedoms for Tasmanians. However, with the recent and unprecedented rise of Islamic extremism, their vile killings, torture and beheadings of innocents, and their declaration of war on Australia and other Western nations, the Palmer United Party is left with no other option but to support this legislation in its entirety.

7:06 pm

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | | Hansard source

I am pleased to have the opportunity to rise to speak in support of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. This is of course the second tranche of the government's national security legislation. This legislation is comprehensive and reflects the extensive work of the Attorney-General and this government to protect Australians. It is important that as a government we do everything we reasonably can to protect our people. That is why we are urgently updating counter-terrorism legislation.

This bill, the foreign fighters bill, as it has come to be known, fills the most pressing gaps and will tailor many of our existing powers and offences to address the new threat of home-grown terrorism. It focuses on measures that will have the greatest impact on prevention and disruption of domestic threats. The government has accepted all the recommendations of the Parliamentary Joint Committee on Intelligence and Security report on the foreign fighters bill. This legislation has some urgency since it deals with a clear and immediate threat for the safety of Australians. This legislation tackles the escalating threats posed by persons who have participated in foreign conflicts or undertaken training with extremist groups overseas and also by those whom they influence. The government is determined to give our law enforcement, intelligence and border protection agencies the tools they need to militate against such threats. This bill has a direct impact on their ability to protect the Australian public.

It amends 22 acts to respond to the threat posed by Australians engaging in, and returning from, conflicts in foreign states by providing additional powers for security agencies; strengthening border security measures; cancelling welfare payments for persons involved in terrorism; and implementing recommendations made by the Independent National Security Legislation Monitor's second and fourth annual reports and the report of the Council of Australian Governments review of counterterrorism legislation. The legislation also repeals the Crimes (Foreign Incursions and Recruitment) Act 1978. I commend the work of the Parliamentary Joint Committee on Intelligence and Security inquire into the bill. Their report provided a thorough consideration of the bill and the issues raised in evidence by a wide range of stakeholders. Those stakeholders who participated also made a valuable contribution to those deliberations.

We have accepted all of the committee's 36 recommendations outlined in its unanimous bipartisan report. Let me repeat: this committee was unanimous in its support and recommendations. The recommendations focused on improving the clarity of provisions in the bill and ensuring that the powers provided for in the bill are used appropriately and subject to proper review. Implementing the recommendations will further strengthen the provisions of the bill including the safeguards, transparency and oversight mechanisms. Most of the recommendations do not suggest amendment to the legislation itself. Importantly, the committee does not recommend against any of the substantive provisions of the bill but makes suggestions largely on definitional and process issues. Now it is time for us in the Senate to add our weight to the committee's recommendation, accept its 37th recommendation—its principal recommendation—and pass the bill.

This legislation is the product of a lot of community consultation, of which I have also had the privilege of being part. Unlike most legislation, which is inquired into after tabling by the minister, the Attorney-General took steps to consult about this legislation before tabling. This was an important step, given the sensitivities surrounding the proposed measures and their community impact. I stress that our security measures at home and abroad are directed against terrorism, not against religion and not against any sector of the community. Regrettably, though, it is the Muslim communities that have been affected, given that it is their young people who have been targeted by ISIL, or Daesh. For this reason, it was important to engage in consultations with the Muslim communities regarding aspects of concern about the legislation.

Having stated what this legislation does, I will correct some misconceptions about this bill. Firstly, it does not target journalists and freedom of the press. Despite the misgivings of a few journalists, they are not the target of these laws, and these provisions are not new to Australian law. This law only relates to special intelligence operations. As Parliamentary Secretary to the Minister for Social Services with special responsibility for multicultural affairs and settlement services, I reiterate that this legislation is not intended to target the Muslim communities. I want to reassure these communities that this government appreciates that the actions of a few should not overshadow the valuable contribution that so many in these communities have made to Australia. It is important to reiterate the work that has been done by many people in the Muslim communities in supporting, counselling and, in some cases, stopping disaffected youth from travelling overseas or being caught up in attempts to radicalise them. Much of this work has been done discreetly and quietly away from the public gaze by imams, families and community leaders.

This is the most significant risk to Australia's domestic security that we have faced in many years. There is a real risk that foreign fighters returning from abroad not only will become further radicalised but will seek to radicalise others, thereby enhancing the real prospect of terrorist attacks on home soil. I acknowledge the contributions made during the community consultations that the Attorney and I attended and those which I attended on my own. I believe those consultations have assisted in the refining of the legislation before us. Behind the scenes, I have appreciated the advice and counsel of many in the Muslim communities. I particularly acknowledge the women and the youth who have been so forthcoming with their experiences, challenges and advice.

I conclude by talking more generally about what has happened overseas and how it relates to us here in Australia as a free multicultural society. The overwhelming majority of Australians find the barbarism of the terrorist group ISIL, or Daesh, absolutely and utterly abhorrent. One of Australia's greatest strengths is our harmonious, diverse, multicultural, multi-faith community. We need to preserve and protect that. It is critical that at this time all Australians remain tolerant and respect our cultural diversity. To turn on each other on the basis of religion or race would be to play straight into the hands of ISIL, or Daesh, who want to divide us. Freedom of thought, speech and beliefs are important rights in our society and radical thinking can positively transform a country's political and social landscape. However, using violence or supporting its use to achieve ideological, political or social change is not acceptable; this is violent extremism. Australian law enforcement and intelligence agencies are continuing their work to prevent and disrupt any individuals who may be becoming radicalised or who are planning terror in Australia. The Australian government, in consultation with its state and territory counterparts, is taking all necessary steps to keep Australians safe here and overseas. Our counter-terrorism arrangements are well entrenched and they need to remain robust, contemporary and relevant in the current threat environment. As the number of Australians with hands-on terrorist experience is now several times what it was in Afghanistan, the challenge now is that much greater.

I will conclude my contribution with some comments on our community engagement and the way forward in dealing with radicalisation. We all know that terrorists and violent extremists represent a small, fringe minority of Australian society. Community leaders have made clear their opposition to the involvement of Australians in Syria and Iraq conflicts and have expressed their abhorrence at the devastating actions of ISIL or Daesh. Let us not forget that many of the innocent people killed or affected by these conflicts are Muslims. The Australian government will continue to do all we can to support community leaders who play a critical role in dissuading young Australians from becoming radicalised and travelling to the conflict zone to fight. Ongoing engagement with communities on the new counter-terrorism measures is a high priority. The government is committed to working with our communities to combat the radicalisation of young Australians and violent extremism. We have consulted with experts and with representatives of the community on the best way to keep our Australian community safe. As part of the recent measures announced by the government we have committed $13.4 million to working with communities on a new program for countering violent extremism.

In a democracy, Australians are free to express their opinions through peaceful and constructive methods. All Australians are free to choose their religion and should be able to express and practise their religion and their beliefs without intimidation and without interference, as long as those practices are within the framework of Australian law. Individuals and organisations are encouraged to engage with our democratic processes and to make a positive contribution to public debate. As part of our $13.4 million commitment, we are developing a package of measures in consultation with communities to address the particular requirements of young Australians at risk. This may include youth diversion activities, health care, mentoring, employment and educational pathway support and counselling, or potentially a combination of these. There will also be referral and support processes for individuals at risk to help them disengage from their activities. We will also combat online radicalisation with education programs and by working with communities, industry and overseas partners. The intervention framework will provide resources and support services to help communities work with individuals who are radicalised or who are at risk of radicalisation to violent extremism.

Having been involved in community activities for over 30 years, including four years on the board of Father Chris Riley's Youth Off The Streets and two years as its chairman, I have observed firsthand the effectiveness of tailored intervention programs. Young people go off the rails for any number of reasons, and, when they do, they become disenfranchised; they turn to drugs, alcohol, gangs, crime or other activities. In this case, we are seeing the disenfranchisement manifest itself in radicalisation. Accordingly, our assistance to these young people needs to be targeted and needs to be developed and delivered in close collaboration with the communities affected. A key lesson from the previous program is that the most effective and financially beneficial way to progress our efforts in countering violent extremism is to work directly with communities to jointly develop and deliver resources and support services that more effectively target young Australians at risk of radicalisation. This is an important bill at a very critical time in Australia's history.

7:18 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I will indicate that I will not be supporting this bill as it stands. I do acknowledge that we face a threat from ISIL, or Daesh, but any response we make to that threat needs to be measured and considered and needs to be effective, not counterproductive. My concern is that the provisions in this bill put in place increased security measures without the equivalent necessary oversight to make sure they are not abused. And I agree with the simple proposition put by Senator John Faulkner that enhanced power requires enhanced accountability. My concern is that there are enhanced powers. Some of these enhanced powers I believe are justified, but not having the framework of enhanced accountability is very dangerous in a democracy.

I commend the contribution Senator Fierravanti-Wells made in this debate. I think she is absolutely right: you need to engage with communities, not alienate them—and I think it is very important that we do not do so. I commend the tireless work Senator Fierravanti-Wells has done in engaging with the Muslim community in Australia in a way that is inclusive, in a way that is welcoming, in a way that I think is the right approach. And I will address that, because the programs to assist in the de-radicalisation of youths are important. But I worry that we need to do more and spend more to get the results that are required, because we are up against an enormous machinery of hate that is trying to brainwash young people, particularly young men, to commit acts of violence against others.

Let us put this in perspective in terms of our law enforcement and intelligence agencies. They already have significant powers. More worryingly, we have seen recently an example of an agency misleading the Inspector-General of Intelligence Services, the independent body to which these agencies are supposed to answer for their actions. This intentional misleading—which relates to an officer of ASIS, the Australian Security and Intelligence Service, allegedly pointing a gun at another government official who happens to be a member of the ADF in Afghanistan while intoxicated—clearly shows that there is very little respect for the IGIS amongst intelligence services. If you read between the lines, it seems that there was misleading—arguably intentional misleading—in respect of that.

This example of apparently lax oversight and negligible accountability is not what we need if we are going to hand over a new range of powers to our intelligence services. I thank Laura Tingle for her article in the Australian Financial Review last Friday headed 'Asking the question of who guards the guards'. Ms Tingle made the point that the Inspector-General of Intelligence and Security had just 13 staff at June last year yet was expected to be the watchdog on the activities of organisations that now employ thousands. ASIO alone had 1,900 staff at June last year. This is not a criticism of IGIS, as such, but it is a criticism of the lack of resources and the lack of powers to ensure accountability.

During the debate on the previous national security legislation, I moved a second reading amendment calling on the government to investigate establishing an independent committee to oversee Australia's intelligence services. In the second reading amendment, I pointed to the current examples of similar entities of some of our closest allies—the United States, the United Kingdom, Germany and elsewhere. There is, in the United States, judicial oversight, albeit secret. But there is a court that looks at these matters specifically. There is a parliamentary committee in the United Kingdom which has much more power than our equivalent parliamentary committee. That needs to be looked at very closely.

In Germany, for instance, the Federal Intelligence Service is the sole foreign intelligence service of the Federal Republic of Germany. As such, it reports directly to the Federal Chancellor. Oversight is as follows: firstly, article 10 of the German Constitution stipulates the privacy of correspondence—post and telecommunications. Exemptions may be granted only due to specified reasons. The G10 Commission is named after this article. Its monitoring activities consist not only of reviewing ministerial instructions to perform surveillance measures but also of collecting, processing and utilising personal data gathered by the intelligence services using these measures, as well as deciding on whether to inform those affected.

Article 45d(1) of the German Constitution says that the parliament shall appoint a panel to scrutinise the country's intelligence activities. Therefore, the intelligence agencies regularly submit to the Parliamentary Control Panel comprehensive justifications for their activities and for any matter of particular interest to the legislative branch. The Parliamentary Control Panel can also request additional reports on issues of concern, and employees of the intelligence services may contact the panel directly—a very, very important safeguard so employees of intelligence services can go directly to this parliamentary oversight panel. Further, the budget of the Federal Intelligence Service is kept secret, but a confidential committee, as part of the parliament's budget committee, is responsible for consulting on this budget and for monitoring expenses. It is comprised of nine members of the budget committee.

So there is an additional level of oversight in Germany, in the United States and in the United Kingdom—three of our closest and strongest allies—where they understand the need to have appropriate oversight. Again, I hark back to what Senator Faulkner said in a very good essay in the Financial Review last Friday. He worked from the simple proposition that enhanced power requires enhanced accountability.

In my view, there is a vital need to establish a committee based on the best of the best practices of the United States, of Germany and of the United Kingdom and elsewhere—democracies that understand the threat of terrorism and democracies that actually have a level of judicial and parliamentary oversight that we do not have. The PJCIS, while it does excellent work, has membership limited to the major parties, and it conducts many of its briefings and hearings in secret. I can understand that, but my concern is that it cannot comment on or inquire into operational matters. That does concern me.

While I understand the need for secrecy measures in some instances, I do believe that we could all benefit from more transparency, openness and accountability. I would also like to endorse Senator Faulkner's comments from earlier in this debate. He called for a comprehensive review of the oversight of Australia's intelligence agencies and recommended to the Senate proposals that have already been made by other organisations. We must act on these as a matter of urgency.

It is also important to remember that the changes proposed in this bill will not take place in a vacuum. That is why Senator Fierravanti-Wells' contribution was so important—about the need to engage with Muslim communities. This must not be seen as targeting a specific group, a specific religion, or people of specific ethnicities. It ought to be about targeting behaviour that is dangerous to Australia. The environment in this country can sometimes border on the febrile, and I think that we must act in a way so that—and I think Senator Fierravanti-Wells has been consulting, along with the Attorney-General, with communities around the country—we can diffuse those aspects of this debate.

I would like the quote from the human rights lawyer Geoffrey Robertson QC, during his appearance on the ABC's Q&A last night. Robertson said:

Australia has more anti-terrorism laws than any other country in the world. We've had 62 terrorism laws since 9/11. We don't need more. What our laws don't have are two things. The first, they don't have independent oversight. We don't have impartial judges giving orders and directing and approving warrants. It's entirely done within the intelligence establishment. But, secondly, and I think this is the important thing about the question, we don’t have, because law can't solve the problem of terrorism, we have to turn to community service. We have to turn to anti-jihadi organisations, de-radicalisation programs and this seems what Australia doesn't have.

He continued speaking of deradicalisation programs run in Britain:

But there is a de-radicalisation program that anyone who is - passport is cancelled is immediately put on. It involves, not only police, but the local imams, parents, social workers, psychologists, even a couple of returned jihadis are part of that program and I think this is what Australia is lacking at the moment - a proper de-radicalisation program that plugs into those who are identified as being vulnerable and on the - in danger of being lured overseas.

I think what Senator Fierravanti-Wells outlined—some $13 million spent by the government in terms of deradicalisation programs—is a good thing. That is welcome. I wonder whether we need to spend more. I believe that we do need to throw everything at this considering that we will be spending half a billion dollars in terms of the latest campaign in Iraq and in Syria in respect of combating the threat of ISIL—the real existential threat of ISIL. We need to look at that as well.

We also need to learn from the lessons of the past. We were part of the coalition of the willing back in 2003 when Saddam Hussein was toppled in Iraq. We all agree that Saddam Hussein was a dictator who was responsible for massive human rights abuses. But when I speak to people who come from Iraq and who despised Saddam Hussein, they say that, as a result of the American intervention of which we were part of, matters got much worse. Hundreds of thousands of Iraqis were killed in the sectarian violence that broke out. We need to learn very, very carefully from the recent lessons of history when it comes to what we do and how we do it to combat what is, clearly, a threat in the region and further abroad.

The government wants to put in place incredibly broad laws—ones that have raised specific human rights concerns—to address the specific problem of so-called home-grown terrorists. I want to make this clear so that it is not misunderstood by anyone: I believe there is merit in some of the proposals the government is putting up. I think there ought to be a reverse onus of proof in relation to someone being in a designated area then coming back to Australia. I think that it is very important that we make clear that you have to have a very good reason for being there—humanitarian purposes, you are there is a journalist reporting on the conflict zone. Anyone who spends six or 12 months in one of these designated areas ought to have a very good reason for doing so, and it is important that that is a watertight provision.

Going back to the previous bill, which I also opposed, I also want to make it clear that I did support the Palmer United Party's amendment to increase the penalty for someone disclosing the identity of an ASIO agent working in a covert operation or someone working with ASIO who may have been supplying them with information. If you identify someone in the middle of a covert operation, that could well be a death sentence for that person. So it is appropriate to have a maximum penalty of 10 years. My concern in respect of the previous piece of legislation—as it is with this—is that we have a situation where I believe the press is being unnecessarily muzzled, and I will address that briefly.

I think we also need to have a much greater emphasis—alluded to by Senator Fierravanti-Wells—in engaging with communities that are vulnerable to infiltration from terrorist groups. I think that you cannot sow hate and expect to reap love further down the track. You need to make it very clear—as I believe the government has begun to do with its deradicalisation program and its method of engagement—that we need to change the tone of our public discourse from exclusion to inclusion. We need to reach out, not pull away, and we need to build allegiances, not walls. So these are some of the crucial matters that we must address.

If it is the view of the government and the opposition that we need these laws in place, I believe that there are some measures that are justified. But without that additional oversight and accountability and scrutiny, these laws ought not to be passed. We must have that appropriate oversight. I have spoken before about my concerns, in national security terms, regarding the new offence outlined in section 35B of the recent legislation that was passed. This was the amendment that outlined the offence of disclosing information relating to a special intelligence operation. Media outlets have quite rightly been very concerned about this. I am very concerned about the impact this new offence will have on journalists' ability and willingness to report stories covering special intelligence operations. We must not forget—we must never forget—that the media plays a vital role in our democracy. Appropriate oversight by the media ensures that the public remains informed.

My amendments to this section of the previous bill were rejected in the Senate, and I am working now on further amendments to ensure that there is a public interest defence. I would urge when those amendments are drafted and prepared next week for the third tranche of national security legislation that they are looked at very closely by the government and the opposition because there has to be a bipartisan consensus in respect of this. For instance, in relation to section 119.7 subsection 3 of this bill, which relates to the offence of publishing recruiting information in Australia, one journalist has raised with me concerns about how that would be applied and whether that could be misapplied in a way that would muzzle journalists from reporting how terrorist organisations operate—even if they were not reporting in a way to encourage people joining those terrorist organisations but to warn of the sinister recruiting techniques. There are real concerns in respect of that. There must be a public interest defence for journalists. It is very important in our democracy that we have this.

Last week, News Corp group co-chairman, Lachlan Murdoch, delivered the Keith Murdoch Oration at the state library of Victoria. In it he muses whether his grandfather Keith Murdoch's famous letter to then Prime Minister Fisher about the disastrous Gallipoli campaign would have landed him in jail if it had occurred today. He said:

… our Government is introducing legislation that includes jailing journalists for up to 10 years if they disclose information that relates to a "special intelligence operation".

Of course, it is left ambiguous what a "special intelligence operation" is, as it is left up to government agencies to decide.

Lachlan Murdoch poses a very pertinent question. Would the Gallipoli campaign have been a special operation, he asks. Would Keith Murdoch have been arrested with Ashmead-Bartlett's letter and spent the next 10 years in jail? As Lachlan Murdoch rightly identified, his grandfather's letter was a declaration that our nation had a right to know the truth. He also pointed out this year's Freedom House annual index of media freedom found that global press freedom has fallen to its lowest level in more than 10 years. Twenty years ago, Australia was listed ninth on the index. Today we are 33rd, just behind Belize. We cannot afford to limit these freedoms any further.

I cannot support this bill as it stands for a number of reasons. The overarching reason is that, with these increased powers, we do not have increased levels of accountability for our intelligence agencies and increased levels of scrutiny and checks and balances on our freedoms. For me, it is a limitation on human rights and on the freedom of the press which only emphasises the idea that we can sacrifice anything in pursuit of national security. Without proper oversight and limitations I cannot support this bill. I call on the government and the opposition to address these concerns as a matter of urgency, particularly in respect of section 35P which I see as interrelated in respect of this. I look forward to debating these make matters in the committee stage. I will, of course, consider every amendment on its merits. These are matters which we must deal with sooner rather than later because if we do not ask the question of who guards the guards then our democracy is the lesser for it.

7:36 pm

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Attorney-General) Share this | | Hansard source

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.

Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

The question is that the bill be now read a second time.

Bill read a second time.