Senate debates

Wednesday, 9 May 2018


Home Affairs and Integrity Agencies Legislation Amendment Bill 2017; Second Reading

10:05 am

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party, Minister for International Development and the Pacific) Share this | | Hansard source

I table a revised memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

Today I am introducing legislation to facilitate the complete establishment of the Home Affairs portfolio, which brings together Australia's security, law enforcement, criminal intelligence and emergency management functions under the direction of one senior minister.

This bill amends 36 Acts to make Ministerial and Departmental functions and powers clear on the face of legislation affected by Machinery of Government (MoG) changes to establish the Home Affairs portfolio and related changes strengthening the Attorney-General's oversight of intelligence, security and law enforcement agencies. Measures in the bill implement the recommendations of the Parliamentary Joint Committee on Intelligence and Security in its reports into the bill and the additional proposed Government amendments, tabled on 26 February and 28 March 2018 respectively.

The new Department of Home Affairs is now responsible for setting strategies and coordinating policies on counterterrorism and violent extremism, counter foreign interference, serious and organised crime, cybersecurity, border security, immigration and social cohesion.

The portfolio includes the Department of Home Affairs as well as the Australian Federal Police, AUSTRAC and the Australian Criminal Intelligence Commission.

ASIO will be included within the portfolio after the passage of this legislation.

Each of the intelligence and law enforcement agencies will retain their full statutory independence. This structure is modelled loosely on the arrangements in the United Kingdom and, of course, their Home Office.

At the same time, we are strengthening our intelligence architecture by creating an Office of National Intelligence in the Prime Minister's portfolio and empowering it with a leadership role in our intelligence community.

Modelled loosely on its US counterpart, the ONI will not only provide analysis and assessments but also advise on priorities, improve coordination and raise performance accountability across the community.

Together, these initiatives represent the most far-reaching reorganisation of our national security architecture since the Hope royal commissions of the late seventies and early eighties.

Why now?

To those who argue that the system is not broken, I can reassure you that you are absolutely right.

We have been incredibly well served by our intelligence, security, and law enforcement agencies.

There has not been a single point of crisis that has led politicians to scramble in hasty reaction.

But that is precisely the point.

We are not going to sit here avoiding improvements that could be made and waiting for a crisis that exposes the need for them.

If I could quote a former head of ASIO, Paul O'Sullivan, speaking immediately after the Prime Minister's announcement to establish a Home Affairs portfolio, he said, 'Improvements should be made before something is broken.'

Or to quote his successor, and also former head of ASIS, David Irvine, 'Too often, governments are only stirred to improve national security or law enforcement capabilities after some catastrophic failure.'

These reforms are driven by the reality that the threat environment we face is rapidly changing and, it has to be said, worsening.

The fact is we are being tested, stretched. States are adapting. Terrorists are adapting. Serious and organised crime gangs are adapting. And so must we.

New threats are emerging which did not exist when the security architecture was designed in the 1970s. Others have evolved to be barely recognisable from what we knew back then. Much of this evolution has been enabled by technology.

The reforms mean that our national security system will be stronger, more resilient and more responsive.


Importantly, at the same time that we are strengthening our security arrangements, we are also strengthening integrity and oversight.

In his enhanced role as first law officer and minister for integrity—that will not be his title, but that is essentially a good description of the role—the Attorney-General will assume responsibility for the Inspector-General of Intelligence and Security, the Independent National Security Legislation Monitor and the Commonwealth Ombudsman.

And the Attorney will continue to sign off on all ASIO warrants.

There are some who believe security and freedom to be binary opposites, as if there exists a universe in which you could have one without the other.

To the contrary, I am sure that all honourable members agree that these dual objectives can be—in fact must be—mutually reinforcing.

'Freedom,' said the philosopher Karl Popper, 'defeats itself if it is unlimited.'


Terrorists, hostile intelligence agencies, people smugglers and criminal syndicates—from drug peddlers to paedophile rings—are all probing for our vulnerabilities, online and off.

Border security

We have seen extraordinary progress in our efforts on border security. There has not been a single people smuggling boat reach our shores in over 1,200 days. No deaths at sea, no illegal people smuggling trade, no kids in detention.

Compare this achievement with the frayed social cohesion that you see elsewhere in the world when nations lose control of their borders and fail to invest, as we do, in the integration of migrants who arrive.

Tragically, in our own country, a collapse of border security emboldened 50,000 individuals to entrust their lives to people smugglers. This resulted in over 1,200 deaths at sea.

We cannot afford to let this happen again. We will not let it happen again.

At the same time, we have been able to increase our humanitarian program as well as resettle 12,000 refugees from the Syrian conflict.

This would not have been possible without our strong border management policies and high levels of public confidence in our well-managed migration system.

When we look around the world—with its broken borders and 65 million displaced people—we see that this is no time for complacency. People smugglers are constantly testing our resolve. I want to pay credit to the work of the Department of Home Affairs, the work of Operation Sovereign Borders and the work of the Australian Border Force, and the leadership that has been shown by the minister and, of course, by his predecessor, now Treasurer.

Foreign Interference and Espionage

We start from a stronger foundation than most other countries. Australia's strengths are freedom, diversity and security.

These attributes are not mutually exclusive; rather they are mutually reinforcing.

Security is a prerequisite to the trust and confidence that allows a diverse and free society to flourish.

The far-reaching reforms the Prime Minister introduced last year align with our vision for how we will engage with the world—from the foreign policy white paper to the defence white paper to the Cyber Security Strategy.

Our reforms will strengthen the Australian Cyber Security Centre's role as the backbone of our enhanced cybersecurity capabilities. The operational experts in the ACSC will work closely with the policymakers in Home Affairs.

And the transformation of the Australian Signals Directorate into a statutory authority within the Defence portfolio enhances our international leverage.

These reforms will enhance the benefits of the nine tranches of national security legislation the coalition has taken through parliament since August 2014.

From combating foreign fighters and preventing terror attacks at home, to the telecommunications sector security reforms and establishing the Critical Infrastructure Centre—the establishment of the Home Affairs portfolio provides a lasting foundation to make best use of these reforms and safeguard Australian lives and interests.

Key aspects of the Home Affairs and Integrity Agencies Amendment Bill.

These changes to our national security agencies and arrangements are the most far reaching in our history.

First, the creation of the Home Affairs portfolio bringing together our law enforcement, counterterrorism, counter foreign interference, border security, transport security, intelligence and cybersecurity capabilities.

For the first time we have a single Minister, the Minister for Home Affairs providing the government with comprehensive, integrated advice about the threats we face and how we should respond.

Second, the overhaul of our intelligence architecture will add new capability, coordination and accountability. The new Office of National Intelligence will provide strategic leadership and enhanced enterprise management.

Third, the Attorney-General will enhance his role as first law officer. He will retain responsibility for the administration of the criminal justice system, including formal international crime cooperation mechanisms, while taking on a suite of new oversight responsibilities with our intelligence community.

The Attorney-General will be the Minister for Integrity, in line with the United States and UK models. We must ensure Australians have confidence in the scrutiny and oversight of our intelligence agencies.

Security and integrity go hand in hand, each enables the other.


The question is not what freedoms must we forgo to ensure security but what security is required to enable our freedom.

Security is a precondition for the trust and confidence that allows a diverse and free society to flourish.

This Home Affairs and Integrity Agencies Legislation Amendment Bill will build our resilience, reinforce the integrity of our systems and prevent malicious actors from taking advantage of our freedom.

A decade ago it was all about counterterrorism, still a very, very pressing threat, as we know. But adversaries, threats and technology have proliferated and evolved.

North Korea is a pressing threat to peace at this minute but it cannot distract us from the need to combat Islamist terrorism, or foreign interference in our political system, or criminal syndicates looking to smuggle drugs, people, weapons or run paedophile rings all aided by the internet.

These are all critical priorities. They all must be our focus.

The new arrangements will help us integrate all our efforts to counter these threats, growing threats, and prioritise and reprioritise as necessary for optimal results and without unnecessary duplication.

This is how we will keep Australia safe, keep families safe, keep our interests secure.

This is the pathway to ensure our great nation retains its freedom, security and diversity.

I commend the bill to the Senate.

10:06 am

Photo of Jenny McAllisterJenny McAllister (NSW, Australian Labor Party) Share this | | Hansard source

For over a century Labor has demonstrated its understanding that the paramount responsibility for parliamentarians is to keep our community safe and our nation secure. We demonstrate this in practical ways by working in a bipartisan fashion, whether in government or in opposition, to ensure that our security and law enforcement agencies have the powers and resources they need to keep our community safe. We may not always agree with our political opponents on how Australians can be best protected; however, we engage constructively in a political debate about matters of this kind. These are debates that all healthy democracies ought to have. And because we do not believe that national security should ever be manipulated or exploited for partisan purposes, we do not seek to politicise any disagreements that we may have with the government on national security matters. We always seek to resolve those disagreements through constructive and considered debate.

We acknowledge that it is the prerogative of the government of the day to decide how it wishes to organise the executive government and its agencies. The present bill, the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017, is essentially a procedural bill that implements the decision of the Turnbull government to radically reorganise some of the nation's national security and law enforcement agencies. This bill was referred to the Parliamentary Joint Committee on Intelligence and Security, on which I sit. That committee recommended that the bill be passed subject to an amendment being made relating to the role of the Inspector-General of Intelligence and Security. In light of that recommendation and because this is essentially a procedural bill, Labor supports the passage of this bill. However, we wish to place on record several concerns about these changes to our national security and law enforcement framework that the bill implements. We do this because the machinery-of-government changes that this bill helps to legally implement are not minor or technical. They are a significant re-working of our national security and federal law enforcement framework and this is openly acknowledged by the government.

The Prime Minister declared in his second reading speech on this bill last year:

… these initiatives represent the most far-reaching reorganisation of our national security architecture since the Hope royal commissions of the late seventies and early eighties.

Our primary concern is that the government has struggled to explain why the sweeping changes to be brought about by this bill are required at all. Our national security agencies are recognised as highly effective. It is also recognised that they cooperate effectively with one another.

Just last year a comprehensive review of our intelligence services was conducted by Mr Michael L'Estrange AO and Mr Stephen Merchant PSM and that review was released in July last year. The review did not, in any way, recommend the kinds of changes that the Turnbull government is now putting in place. From the Labor side, we are concerned that the reasons for this experiment have not been sufficiently explained by the Prime Minister.

I also note that the concept of a Department of Home Affairs is not new. It was previously considered by Prime Minister Howard, by Prime Minister Rudd and by Prime Minister Abbott. After careful consideration, each of those prime ministers rejected the proposal. Yet this is the proposal that the member for Wentworth is now enacting; and it is not entirely clear what has changed, and the government has not sought to explain it. One effect of the new arrangements is to concentrate power that was once shared between a number of ministers and their departments into a single minister and a new super-department called the Department of Home Affairs.

Most democratic nations are careful to avoid the concentration of power in a single entity or a single person. Most of those nations favour systems with checks and balances, and this is particularly the case with the kinds of coercive powers and intrusive capabilities that our law enforcement and national security agencies necessarily exercise. Concentrating those powers and capabilities under a single department and its minister can weaken the checks and balances that are needed to prevent citizens from the inappropriate or unlawful exercise of those powers and capabilities.

Many of our most senior security experts have pointed out that the concentration of power might also weaken our national security by reducing the contestability of key decisions. Under the arrangements being put in place by this bill, a single minister, presently the member for Dickson, Mr Dutton, will alone be responsible for complex decisions that until now have been debated by multiple ministers who have shared responsibility for our nation's security.

I also note that the government's approach to legislating the various changes to the existing acts necessary for the creation of the Department of Home Affairs has been somewhat haphazard. The government first stated its intention to establish the Department of Home Affairs on 17 July, yet it took until 7 December to second read this bill—which at that time amended only four acts of parliament. Subsequently, following the government's disclosure in evidence to the PJCIS that there were a further 33 acts of parliament that required amendment in order to effect the creation of the portfolio, the Attorney-General proposed a further 311 amendments to the primary legislation. These additional amendments were considered by the PJCIS, which recommended that they be passed. At paragraph 1.27 of its report on this bill the committee stated:

The Committee notes that machinery of government changes are a matter for the government of the day. As such, it is not within the remit of the Committee to consider the broader policy decisions behind the changes, but to scrutinise the amendments as proposed.

The bill before the Senate reflects those additional amendments proposed by the government at that time.

In conclusion, and consistent with the intelligence committee's view, I reiterate that Labor acknowledges the prerogative of the executive to determine the machinery of government. We support this bill as implementing changes brought about under that prerogative. Labor will carefully monitor the operation of these new arrangements. We will listen carefully to the advice of our security agencies as these arrangements take effect to make certain that the new framework operates as the government intends and is in fact of benefit to our nation's security. I commend the bill to the Senate.

10:13 am

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

I rise to speak on the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017. As colleagues would know, this bill establishes the Home Affairs portfolio and seeks to give effect to the allocation of ministerial powers following the establishment of the new Home Affairs department. It amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the Independent National Security Legislation Monitor Act 2010, the Inspector-General of Intelligence and Security Act 1986 and the Intelligence Services Act 2001. The majority of changes to establish the Home Affairs portfolio have been made through amendments to the Administrative Arrangements Order. This bill addresses specific matters that could not be dealt with without legislation.

When it was announced in July last year that this super-sized department of Australia's security and immigration agencies would occur, and be led by Minister Peter Dutton, I said at the time that this would move Australia closer to being a police state. I stand by those comments. This is a dangerous proposal, a dangerous move by government, and it continues Australia's walk ever more rapidly down the road to authoritarianism.

The Australian Greens will be opposing this bill. The government has abjectly failed to give satisfactory reasons for the changes, and these changes have not been recommended by any review. The government is engaged in a thought bubble here, and I have no doubt that it is being led by the Minister for Home Affairs, Mr Dutton. I note that the government is proposing amendments to this bill, based on recommendations from the Parliamentary Joint Committee on Intelligence and Security. Amendments (16), (17) and (19) implement recommendation 1 of the first report by ensuring that only the Prime Minister may request the Inspector-General to undertake certain inquiries under section 9 of the Inspector-General of Intelligence and Security Act 1986. The Inspector-General of Intelligence and Security, the Hon. Margaret Stone, had deep concerns regarding the initial proposal that would have given the Attorney-General the same powers as the Prime Minister to compel the Inspector-General to undertake an inquiry. The Greens won't be opposing the government's amendments. I also note that Senator Patrick, on behalf of the Centre Alliance, has proposed an amendment relating to the oversight of intelligence agencies. The Greens will be supporting Senator Patrick's amendment.

The creation of the new home affairs department is one of the clearest examples of this government's ongoing attempts to change Australia's culture and to turn Australia into a more closed and frightened place. They are doing this for a reason. They are doing it because they know, through careful study of history, that, if you can scare people enough, more and more of them will acquiesce to the erosion of their fundamental rights and freedoms, purportedly to support national security measures. This government, and previous governments of both political stripes, have deliberately set out to create fear in the hearts and minds of the Australian people, with the intent of lessening opposition to the ongoing erosion of fundamental rights, freedoms and civil liberties in this country. The Australian Greens will fight this all the way. This move, the creation of the home affairs department, is something that will reshape Australia's entire immigration, intelligence and security framework to become more hostile, suspicious and secretive.

Some Labor MPs have expressed concern about the concentration of too much power in Mr Dutton's hands, but what's missing from Labor is a commitment to reverse these changes. We haven't heard the Labor Party say that they oppose the creation of the Department of Home Affairs, and we have not heard the Labor Party say that, if they win government at the next election, they will reverse the changes. That is what we need to hear Labor say. I listened carefully to Labor's contribution in the House yesterday and the contribution from Senator McAllister today, and we have not heard Labor say that these changes will be reversed.

In addition to Australia's immigration, intelligence and security systems becoming more hostile, suspicious and secretive, we have a minister, Mr Dutton, who has continually shown that he cannot be trusted to responsibly exercise the powers he already has, yet the creation of the home affairs department and this enabling legislation simply concentrates more power into the hands of Mr Dutton. I place very firmly on the record that the Australian Greens do not trust Mr Dutton to responsibly exercise the new authority and concentration of powers he will have. We've seen his track record in Australia's offshore detention system on Manus Island and Nauru. I've been to Manus Island many times and seen with my own eyes, and felt with my own heart, the harm that is being caused to innocent people, deliberately, by the Australian government—with bipartisan support from the opposition, I might add. The human cost and the human misery on Manus Island—which I know of through my direct experience there—and, I have no doubt, the equal harm being done to people on Nauru, the equal human cost and the equal misery, show very clearly indeed that we are right not to trust Mr Dutton with the extra concentration of powers that the creation of the Department of Home Affairs has afforded him.

At stake here is far more than the administrative arrangements or which minister sits in front of which Senate estimates committee. This is nothing other than an attempt to use state apparatus to erode fundamental rights and freedoms, to change the nature of Australia and to rebuild it in line with Mr Dutton's fears and prejudices. The net effect of these changes is a department that is technically responsible for national security and immigration and resettlement—but I note that it is outsourcing and deprioritising the latter function.

In the budget last night, we saw tens of millions of dollars stripped away from refugee supports in this country and an extension of waiting times for refugees to access crucial and critical government services. Again this government shows its lack of heart, its lack of compassion, its lack of basic human dignity, not only in this bill but in the budget that was presented last night. Remember, last year Minister Dutton tried to change citizenship laws in this country to force people to wait longer before they could make applications to become citizens, to speak university-level English before they could become citizens and to sit patronising values tests before they could call themselves Australians. These changes, which the Greens led the charge to ultimately defeat in the Senate last year, came as hundreds of citizenship-processing staff were being sacked by the department. Consequently, people are now waiting far, far longer than previously before their applications for citizenship are processed. This is not a coincidence. Mr Dutton demands loyalty from potential citizens and in turn treats potential citizens with utter contempt. More recently, the government has massively increased the amount of money that people have to own before they can sponsor a relative to come to Australia. This will have the effect of restricting family reunions to the well-off and is ultimately a cut to migration by stealth.

We have a minister who has a history of dishonesty and a history of utter disrespect and contempt for basic human rights and utter contempt for the rule of law. Those things make him completely unfit to sit at the top of such a powerful national security agency as the Department of Home Affairs. He has overseen a regime of deliberate brutality on Manus Island and Nauru. He has denied the people he has detained the chance to rebuild their shattered lives, not just in Australia but in New Zealand. He has tried to deprive suicidal children of badly needed psychiatric care in Australia. He repeatedly acts outside or beyond his powers to deport people, and, when his decisions are overturned by the Administrative Appeals Tribunal or the courts, he lashes out at the AAT and the judiciary. His latest pot shot at the judiciary shows an alarming contempt for the rule of law. His suggestion of public reflection is a step towards the direct election of judges—an alarming proposition—in this country. Judges and magistrates should be independent experts in the law, not populist politicians. Again, this suggestion is a dangerous erosion of the rule of law, and ultimately the Prime Minister needs to bring his out-of-control minister to heel.

To put it bluntly, Mr Dutton doesn't like judges because he is sick of being held to account by our courts. At every turn, he's sought an expansion of powers, which has been opposed only at the very outside margins by Labor, if at all, to increase the powers of security agencies to surveil, to interrogate and to deport people. All of these changes are happening at a whirlwind pace. The dust has barely settled on the newly created Australian Border Force, and it is long past time for reflection on what the purpose and scope of Australia's Immigration Department should be.

If we want to see what a home affairs department will look like in action, the treatment of a Biloela family in March gives us a frightening vision. A mother, a father and their two young daughters had their home raided in the pre-dawn hours by Border Force, police and Serco security guards. They were told they had 10 minutes to pack up their things, before they were bundled into vans and locked up in an immigration detention centre in Melbourne, where they remain to this day. This is frightening stuff—frightening stuff indeed. Everything about this scenario—the combination of private and public security forces, the dawn raid only a matter of hours after a visa had expired and the complete lack of basic compassion—is the product of a department and a minister that are unrecognisable from just a short decade ago. This country is walking ever more rapidly down the road to authoritarianism and totalitarianism, and Mr Dutton's consolidation of power is central to that.

Time after time this government demonstrates its disregard and contempt for the rule of law—and that is one of the early warning signs of fascism. We are in a very dangerous period in our country's history. We are sleepwalking down a dangerous pathway. The creation of the home affairs department is a significant step down that dangerous pathway and will be fought and opposed all the way by the Australian Greens. It's a shame that Labor have decided to support this bill. I'm very disappointed in the Labor Party for doing this. They had a chance here to stand up against this concentration of powers, to stand up against this ongoing erosion of fundamental rights and freedoms in this country, but yesterday and today they have squibbed it.

We need to move away from expanding government powers, from increasing the concentration of government powers. We need to be wary about the loss of privacy that citizens are facing, the massive increase in the surveillance state, and, ultimately, we need to start building into our legislative framework protections for people's fundamental rights. That is why we need a charter of rights in this country. We are the only liberal democracy in the world that does not have some form of charter or bill of rights either in our statute books or in our Constitution. This lack of a charter of rights is part of the reason the government are able to get away with the changes they are proposing today.

Concentrations of power, like the one this government has engaged in with the creation of the home affairs department, are extremely dangerous. They can lead to a reduction in accountability, reductions in transparency and reductions in the contestability of decisions—and, ultimately, that is bad news for Australian citizens who value fundamental rights, freedoms and liberties in this country. This move by the government, disappointingly supported by the Labor Party, will be opposed all the way by the Australian Greens. What we need to hear from Labor is a commitment to reverse these changes and, disappointingly, we have heard anything but.

Debate interrupted.