Tuesday, 26 June 2018
Legal and Constitutional Affairs Legislation Committee; Reference
That the provisions of the following bills be referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 14 August 2018:
(a) National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017; and
(b) Foreign Influence Transparency Scheme Bill 2017.
This motion seeks to refer two pieces of legislation, or provisions of two pieces of legislation—the Foreign Influence Transparency Scheme Bill 2017 and the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017—to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 14 August this year. The reason we're doing this is that this chamber, the Senate, is being asked to consider these pieces of legislation in an unholy rush. I'm relying on statements made by government ministers to back that up, those statements being that government intends to have these bills passed through the parliament this week but without offering any reasonable or rational justification for that unholy rush.
What's happened here, as often happens with bills that relate to national security, is that the closed shop of the Joint Standing Committee on Intelligence and Security has got together and closed the doors on every single crossbencher in this Senate—none of us have a place on that committee—and, behind those closed doors, a cosy deal has been stitched up between the Labor Party and the coalition that, once again, will erode fundamental rights and liberties in this country. It's worth the Australian people knowing that in the past two decades there have been more than 200 pieces of legislation passed through the Commonwealth or through state and territory parliaments in this country that erode fundamental rights, freedoms and liberties that we actually used to send Australians overseas and sacrifice their lives to defend. These rights, freedoms and liberties are now being eroded, and they're being eroded by the Labor Party and coalition parties in zombie lock step. I'm very disappointed—very disappointed—in Labor senators because of the way this debate looks like going, and I warn Labor senators in particular that the chilling consequences of these two bills will be on their heads.
I only have a few minutes, so I'm going to run quickly through some of the issues. Not-for-profits that are not charities will have to register arrangements with sister organisations, apparently even if they're not associated with a foreign government. This is not only a significant regulatory burden but also non-compliance will potentially attract sentences of imprisonment. The espionage and foreign influence bill directly impacts on matters of concern: for example, criminalising protests in this country. So someone who protests against a new coalmine, for example, runs the risk of having that behaviour criminalised, even if it's done in a peaceful and non-violent way. They risk up to 20 years imprisonment for taking that protest action, even if that action is about sending a message to the world that we should not be opening new coalmines in Australia. This, again, will have a chilling effect on freedom of speech in our country and potentially is in breach of the implied right of political constitution in the Australian Constitution. The espionage and foreign influence bill also could impact on reporting by journalists on misconduct of the Australian government.
Let's be clear about this: these pieces of legislation are a continuance of a sustained attack on civil society in Australia. They are a continuance of the ongoing erosion of fundamental rights, liberties and freedoms in this country, and it is a matter of deep shame that Australia remains the only liberal democracy in the world that does not have some form of bill or charter of rights to protect those fundamental rights and freedoms.
And of course corporations are exempt from these bills. According to the coalition and Labor it's okay to attack non-government organisations whose mandates are defending the environment, whose mandates are defending human rights, whose mandates are holding the government to account. Apparently it's okay to attack those groups, but hands off the big corporates. Again, we can see what big political donations buy in this place. Hands off the corporates because, of course, they are exempt from these bills, as are religious institutions, as are, shamefully, politicians. To suggest that for-profit businesses—be they involved in telecommunications, mining or pokies—let alone churches or the Vatican, have less influence on Australian politics than non-government organisations is either naive or woefully negligent. I urge the Senate to do its job and refer these bills for an inquiry. (Time expired)
The opposition notes that these bills have already been the subject of extensive inquiry and report by the Parliamentary Joint Committee on Intelligence and Security, and directs Senator McKim to those reports. Therefore, we oppose this reference.
The government also does not support the motion. The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 and the Foreign Influence Transparency Scheme Bill 2017 have been the subject of extensive consideration by the Parliamentary Joint Committee on Intelligence and Security since 8 December 2017. Any further delay would impact on Australia's national security and undermine our democratic process.
I understand the statements that other senators have made and I understand that they're not supporting this committee reference, so I'm not expecting my words to influence the outcome of the proposal by my colleague Senator McKim, which is, on the face of it, really quite simple: to have a more thorough examination of a very, very large number of amendments that are intended to be put and, potentially, passed by this chamber within the next couple of days on issues that go to some of the fundamental parts of our freedoms. I know the core of this legislation, the broader ideas of it, has gone before the joint security committee. If I'm correct, that's one that doesn't have crossbench representation.
I literally do have a grey beard so I probably am playing the 'old grey beard' role of the Senate here but this brings to me so many echoes of so many previous debates. I recall a number of times when former Senator Robert Ray, who was very ferocious in the way he put his arguments but very learned in his approach, would back up his position with facts rather than just hollow rhetoric. There was a view back then, and there still is today, that somehow security matters are the domain of just the two parties of the political establishment, and, for crossbenchers, it is, 'You can look at it all once we decide to give it to you in the chamber.' That would be okay if we then had adequate time to look at the detail of those matters. These are not minor matters—I won't repeat what my colleague Senator McKim just said about some of them. They are large in number. Perhaps this may give some senators some reason not to reconsider their position on this motion—I know that won't happen—but to at least consider ensuring that this debate, when it happens in this chamber, is not guillotined, that the amendments are properly examined and that, if necessary, it goes through to the next sitting in August. Unless a case is made for extreme urgency on the grounds of security, then it does merit proper scrutiny. Surely, if there's one thing that this chamber should still be able to hold its head up as being able to do properly, it is to properly scrutinise legislation.
The particular echo I had, in a strange way, folds back to the comments that Senator Dean Smith just made on a separate report. In the week that this chamber guillotined through the legislation to make same-sex marriage illegal, it also guillotined through two pieces of antiterrorism legislation, also under the guise that somehow this was super-urgent, super-necessary and just had to be pushed through. Right on the eve of the election, the chamber went right through to a Friday and guillotined it through. It was part of what made that particular week so distressing, because they were such serious matters. We all know how many more times we've had security legislation and antiterrorism legislation of all sorts continually put through this chamber since then. Each time it's justified as being necessary but each time it's also justified as being urgent.
Here we've got something with so much detail and on matters of such significance—areas where, frankly, it hasn't been proven that a lot of the past changes have been necessary. Surely, we can finally learn from those past mistakes and not just keep going over the same old problem. Maybe this will end up getting passed anyway by whatever combination of senators, whether it is both the traditional parties of the establishment or some mixture of the crossbench, but let's at least ensure that we have proper scrutiny.
The ideal way to do that on something of this level of detail and by something that enables broader scrutiny by a cross-section of the community—who are the people that will be most directly affected by this, not us in this chamber—is to send it to a Senate committee. But seeing that we're probably not doing that, I simply take the opportunity to urge the Senate to make sure that there is full scrutiny given to all these amendments; that, if necessary, it not be guillotined through this week and that it be given the level of sober and proper consideration that the Australian community deserves. (Time expired)
I indicate that I will support this motion to refer these two bills to the Legal and Constitutional Affairs Legislation Committee. They are very important bills. They have significant implications for our civil society and for our law—the way that we deal with spying and foreign interference. And they create new offences. Anything that creates new offences has to be taken exceptionally seriously.
Unlike Senator McKim, I have my reasons for this, which may be a little different, but there is a very legitimate complaint in relation to the Parliamentary Joint Committee on Intelligence and Security. That committee does not allow other participating members—there is nobody from the Greens and nobody from the crossbench involved in it. Yes, we can read all the submissions—at least, the ones that are published; they're not all published—but we don't hear the evidence of the security agencies and we don't really know how it's all going to end up.
We've had this process reach its next stage this week, in which the report of the Parliamentary Joint Committee on Intelligence and Security has introduced its recommendations and the government already has the amendments which are based on that report. We got exposed to them today, or yesterday, and we are being asked to vote on them this week. We are told that we've had ample opportunity to consider both the bills and the potential amendments. It's not true, and we haven't.
I have had the opportunity to consider these perhaps a little more than Senator McKim has because I've had briefings from the Attorney-General's Department and ASIO. I'm very grateful for those. I have to say that some of my concerns about the original bills, which I regarded as quite alarming in their content, have been allayed by the amendments based on the PJCIS recommendations. That's a good thing. But I've had, essentially, 24 hours to get my head around them.
Now, we've had this situation before—many times, as a matter of fact. I've been here for four years now, and we've had quite a raft of national security legislation and antiterrorism legislation. It's embraced or introduced things like control orders and preventive detention orders. Invariably, there has been some pretext that it be hurried up, that it was urgent. And then we would end up with control orders and preventive detention orders not being used. Nobody uses them. They're urgent, urgent, urgent—we have to get them into the books because there's some sort of national security crisis and then they don't get used.
What we do get, though, are free-speech restrictions. We saw, in the case of section 35P of the ASIO Act, unreasonable restraint on free speech. I railed against it at the time it went through. I knew it wasn't a good thing; I knew it was totally unnecessary, as a matter of fact. Nobody took any notice, of course, of just a crossbench senator. But then it went to Roger Giles QC, who said the Inspector-General of Intelligence and Security legislation was inappropriate and had gone too far. So guess what? The government changed it. Then I drew attention to the fact that there was a similar provision in another act affecting the Australian Federal Police, and the former Attorney-General, George Brandis, to his credit, agreed to amend that without having a fight over it.
So fixing up the legislation later is one option. But another way to deal with it is to have a look at it in committee—where we can all participate, where we can all canvass our concerns—and deal with it in the normal process that we should be applying in this Senate. There is no case for urgency. We can conduct by-elections without this legislation. We have previously conducted many by-elections without this legislation and no-one can point to any adverse consequences of having done so. It is not necessary to rush it. We should take our time.
I rise to contribute to this debate in relation to the referral moved by my colleague Senator McKim. I would like to highlight the recklessness of the opposition and the government in refusing to allow this reference to go ahead. Only this afternoon we have had a package of bills presented to this place with 270 amendments that we are expected to vote upon as early as tomorrow. No-one in their right mind would think that 270 amendments whacked on the table only a couple of hours before we finish tonight, with the expectation that this bill will be brought on by the government tomorrow, would in any way be the appropriate avenue for debating something as important as foreign interference.
We know the reason why the government is rushing this piece of legislation. It is because, according to the Minister, Christian Porter, and members of Malcolm Turnbull's government, this all needs to be done and dusted prior to 28 July and the by-elections. But, of course, not everybody in the government thinks this. We know that Minister Pyne was dubious about whether it was urgent. Remember that? He either read the speaking notes and didn't agree with them or didn't read them at all. Either way, there is clear division, even within the senior cabinet, about whether the bills in this package of legislation are important and urgent enough to be rushed through and are up to scratch. And it clearly isn't up to scratch. Otherwise, we wouldn't have 270 amendments whacked on the table at a minute to midnight. So it is not as urgent, I would argue, as the government is proposing.
For the Labor Party to line up with the government to rush through such an extraordinary package of bills that cover such a breadth of Australian community, business and civil society groups is astounding. We know that there have been concerns from journalists, we know that there have been concerns from the media sector and we know that there have been concerns from academic institutions. There have been concerns from the artistic community in relation to the impact that these laws would have on their operations. They are worried that they are being caught up in this big broad net whether it was intended or not. So now we have 270 amendments to try and get through when we don't know what the implications will be. They require, in and of themselves, appropriate scrutiny and review. This is the job of the Senate. The job of the Senate is to review pieces of legislation put forward from the government, through the House and to this place. Our job is not to rubberstamp—no, no, no—our job is to review, to scrutinise, to approve, to change, to amend or, ultimately, to reject. That is our job.
Being told to do this now, at a minute to midnight, is just extraordinary. There are 270 amendments to this package of bills. It is not just one piece of legislation here; there are three bills. It undermines the role of the Senate. It undermines the role of the Senate to do its job and the responsibility that we all have as senators to ensure that pieces of legislation don't just pass this place, because the government wants a rubberstamp, because they're worried that they don't have anything else to campaign on in the lead-up to the 28 July by-elections.
Is it any surprise that the government's in trouble in Mayo, and so what do they do? They pull out the national security card. That's what's going on here. When this government thought that they may have been ahead in the Mayo by-election with their dud of a candidate, Georgina Downer, they thought, 'Let's lock it in with some antiforeigner legislation'. Wrong move, you're going to lose it anyway.