Wednesday, 27 June 2018
National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, Foreign Influence Transparency Scheme Bill 2017; First Reading
Mr President, the Australian Greens ask that you put the question separately on the procedural element of the motion, which is that these bills may be taken together, because I wish to speak to that procedural motion.
What's happening here needs a bit of context so that the Senate and the Australian people can understand what's being done here this morning. These bills went to the Parliamentary Joint Committee on Intelligence and Security, which is a closed shop—no member of the Senate crossbench, including the Australian Greens, is represented on that committee. Out of that committee process came a total of 280 amendments to these pieces of legislation that we only saw for the first time yesterday afternoon. Those amendments came out of the absolutely normal process that occurs behind the closed doors of the Parliamentary Joint Committee on Intelligence and Security, and that is that the Labor Party and the coalition parties got together and hammered out a dirty deal, and the parliament, and now the Senate, are being presented with a fait accompli and being treated as a rubber-stamp by the Labor Party and the coalition parties.
The government has said reasonably consistently, if not entirely consistently, that it wishes to have both of these bills passed through both houses of this parliament this week. What it has abjectly failed to do is mount any kind of rational argument as to why these bills should be subject to such an unholy rush. These two bills we have before us do many things, but in overview they are a draconian and deliberate attempt to stifle political debate in this country. They are a draconian and deliberate attempt to muzzle non-government organisations who are fighting to look after our environment or defend human rights or hold the government to account. They are a draconian and deliberate stitch-up between the Australian Labor Party and the coalition parties as so often happens in this space.
The Australian Greens do not accept the argument that these bills need to be put through the Senate this week. In fact, yesterday we moved to refer the provisions of this legislation, including the 280 amendments, which we only saw for the first time yesterday afternoon, off to the Legal and Constitutional Affairs Legislation Committee for an inquiry so the Australian people could have a say, which they’ve been denied to date because the Parliamentary Joint Committee on Intelligence and Security only dealt with the bills as originally drafted. There are now 280 amendments to these two pieces of legislation that will be subjected to no other scrutiny than what the Labor and Liberal parties in collusion will grant in the Senate over the next two days. That is 280 amendments to legislation that will criminalise peaceful non-violent protest in some circumstances. It is 280 amendments, which we only saw yesterday afternoon for the first time, to legislation that will criminalise public interest journalism in some cases.
Let's put a couple of examples before the Senate so that no-one can say they didn't know what they're about to ram through in such an unholy rush. Firstly, let's say someone decides they want to make a political point by disrupting the loading of a boat that is being loaded with live sheep for export to the Middle East—they want to blockade the road leading to that port. Suddenly, they find themselves in breach of this draconian legislation and, if charged and convicted, find themselves facing a term of imprisonment of up to 15 years. Let's take another example. A journalist decides they want to report on an egregious breach of human rights carried out by Australia. They report that egregious breach. That report comes to the attention of a foreign government and provides an advantage to the foreign government or damages Australia's relationship with that foreign government, and the journalist and the publisher, if arrested, charged and convicted, face a term of imprisonment of 25 years.
It's highly likely that this legislation, if passed as it is proposed to be today, would get laughed out of the High Court in damned quick time because it breaches the implied right to freedom of political communication in our country; that is the view of legal and constitutional experts who have offered their opinion publicly on this matter in recent days. I'll be putting their views more robustly on the record as we move through the remaining process to examine this legislation.
Make no mistake: this Senate has the right, and in fact deserves the opportunity, to apply significant scrutiny to this legislation. The Senate has been denied by the Australian Labor Party and the coalition a chance to have this legislation interrogated at an inquiry of the Legal and Constitutional Affairs Legislation Committee, and now we have the government proposing to take these two highly complex, highly dangerous pieces of legislation through this Senate in one go. Again, it is a move designed to avoid the necessary scrutiny of this legislation.
The Australian Greens are going to stand up in this place and defend our democracy. We are going to defend public interest journalism. We are going to defend civil society. We are going to defend people's rights to peaceful and non-violent protest in this country. One of the ways we are going to do these things is by holding this government to account. In order to do that in an optimal way, we need these bills separated so that we can interrogate them one after the other, not have them rammed through in an unholy rush by the Australian Labor Party, who are in zombie lock step with the coalition, as they so often are.
It's worth making the point that one of the biggest fears of the Australian Labor Party is that there is thin air between Labor and the coalition on issues that they regard as national security or counterterrorism issues. Of course, the reason for that is purely political. Labor don't want to open up a crack that people like Minister Dutton and Minister Cormann can drive the wedge into. The government are champing at the bit to drive the wedge into Labor, and Labor is engaged in gutless, cowardly politics by remaining in lock step with the government on these issues. So there are political reasons behind us facing this unholy rush today, but ultimately it is the country and the Australian people who are going to be the losers, because Labor has decided to sacrifice them on the altar of political expediency. It is gutless and cowardly politics.
We need the opportunity to make sure these bills are comprehensively scrutinised. They are horrendously complicated, they are entirely draconian and they are incredibly dangerous not only in their intent but in their effect. Ultimately, we are again seeing rights, freedoms and liberties in this country—which we used to send Australians overseas to defend, with the sacrifice of Australian lives—eroded before our very eyes because the Labor Party is too gutless to stand up to the coalition on issues around national security and counterterrorism.
There have been over 200 pieces of legislation passed through the Commonwealth and state and territory parliaments in Australia in the last 20 years that erode fundamental rights and freedoms in this country. We remain the only liberal democracy in the world that does not have a charter of rights, which would allow us to enshrine and protect basic rights and freedoms in such a way that this legislation either could not pass or, if it did pass, would be found to be unlawful or unconstitutional, or, at the very least, greater opportunities would be provided to scrutinise the draconian provisions of this legislation.
What the Australian people are going to witness in this Senate today is the zombie lock step of the old parties to support legislation and some procedural motions that will have a chilling effect on the capacity of non-government organisations to defend our environment, on the capacity of journalists in this country to hold the government to account and report in the public interest in some circumstances, and on the capacity of civil society's essential job in any democracy—to scrutinise and hold those with the ultimate power to account. If these bills pass unamended this week, it'll be a sad, sad day for Australia.
I say to the minister: the Australian Greens will avail ourselves of every opportunity here to make sure that these bills can be scrutinised and that the collusion between the ALP and the coalition is laid bare and to make sure that the impact of these laws is at least placed on the record so that nobody can say they didn't know what they were voting for at the end of this debate. Part of the way that we want to do that is to ensure that these bills can be considered separately. I say, again, there are 280 amendments, which speaks volumes about the quality and the overreach of the original legislation. We saw them yesterday afternoon for the first time. Here we are, less than 24 hours after we first saw those 280 amendments, and the government and the Labor Party are going to vote together, I suspect and I fear, to deny this Senate the opportunity to do its job, which is to scrutinise these two pieces of terrible legislation in the most effective way that is open for this chamber. So I do urge senators here to support the Greens motion, because this will allow for the bills to be considered and debated separately rather than considered and debated together, which is part of the strategy of the government—and, I believe, likely the ALP—to deny this Senate the capacity to properly do its job.
I'll be very brief. Centre Alliance will be supporting this motion to deal with the bills separately. We note that it's very important national security legislation and, in principle, we are in support of it—although we don't necessarily understand all of the details. And that needs to be drawn out, as Senator McKim has suggested. This has gone to the Parliamentary Joint Committee on Intelligence and Security. There has been considerable discussion both in the PJCIS and in the media in relation to these bills. It's a very complex set of legislation that involves powers to protect national security, but it also inhibits conduct of citizens. That may be necessary, but we need to explore that in much more detail. There have been two reports that the PJCIS has generated in relation to these—754 pages worth of reports—with 60 recommendations from the first report and 52 recommendations from the second report. We do need to consider this carefully and properly. As I said, Centre Alliance will be supporting the motion.
I seek leave to move a motion to exempt these bills from the bills cut-off order.
Leave not granted.
That so much of the standing orders be suspended as would prevent the consideration and passage of these bills during this period of sittings.
I table a statement of reasons justifying the need for these bills to be considered during these sittings.
I appreciate the minister tabling a statement of reasons as to why these bills need to be considered in these sittings. What I don't appreciate is the way that it has been dumped now on the Senate in such a way that the Australian Greens are forced into making a contribution on the motion before the chair without actually having had the opportunity to understand or even read the government's reasons for the unholy rush that the Senate finds itself engaged in at the moment.
To show good faith with this chamber, Minister, you should have got up then and made the arguments on your feet so that we could understand them. But, no, here we are, getting stampeded through again, with you showing a distinct lack of courtesy to this Senate. It's not good enough to just whack a bit of paper down on the table and expect the debate to be fully informed. The debate isn't fully informed, Minister, because I haven't had a chance and none of my colleagues in the Greens or on the crossbench have had a chance to actually understand what your arguments are for insisting that these pieces of dangerous draconian legislation are rammed through the Senate this week in such an unholy rush.
I thought this was a debating chamber. I thought this was one of the supreme, if not the supreme, debating chambers in the county, if not the world, of Westminster parliaments. But that's not the way the minister has just treated this chamber now. He has come in and whacked a bit of paper down on the table, and he is expecting this debate to be fully informed. I want to put on the record that we are unable to rebut the minister's arguments because the minister didn't have the courtesy to get up in the five minutes allotted to him in this process and actually make the arguments as part of the debate.
Obviously, the numbers are here for this to go through anyway so I don't wish to speak purely to try and make debating points, but I do want to put things on the record. For those who are following this issue, as hopefully the Australian public or those that follow the issues that come before the parliament are aware, the legislation that is being put forward already this morning is of enormous significance to the rights of every person who resides in Australia, not just citizens but everybody else.
The matter immediately before us is the government seeking leave to move to exempt these bills from the cut-off order. It is worth emphasising why the cut-off order is in place. The cut-off order is something that goes back—if my memory serves me correctly—to the 1980s. It was originally proposed by former Queensland colleague—a predecessor of mine—Senator Michael Macklin, because of the problematic practice, which frequently occurred, of legislation being tabled and immediately debated before the chamber had a chance to properly scrutinise it.
As we have already heard, this issue has been scrutinised by a committee that excludes most of the parties in this Senate, except for the two largest ones. So the principle that has been in place since the 1980s—it has been reformed a bit over time, including by, I think, WA Greens senators—is that it should only be by explicit and informed decision of the Senate that we agree to exempt legislation from what is a standing order. It is a standing order that legislation should not be introduced and considered within the same week. That is for the very simple reason that it is our job to make sure that we are properly informed when we make decisions about whether or not the legislation we pass is adequate and does not have unintended consequences.
Forget about the ideological differences here and the philosophical differences about what's right and what's wrong, what needs to happen and what doesn't need to happen. We need to make sure that we don't include things in the legislation that are done by mistake. That has happened time and time again. The vast majority of times that it has happened have been in precisely this situation, when, for political reasons—and let's not kid ourselves; this rush is totally for political reasons—things are put in legislation when even the people who want them in there have not had the chance to properly scrutinise what the actual consequences of those words will be. That's bad with regard to any piece of legislation—it's the law of the land; it affects the entire community—but, when we're talking about legislation that affects people's basic liberties on such a fundamental level, then it is incumbent upon us to make sure that we properly scrutinise what it is we are doing.
Let's not forget, when we are talking about legislation, that it is not blind. There are sections of the community—Indigenous Australians, Muslim Australians and others—who are far more likely to fall foul of legislation that is bent and interpreted to meet the preconceptions, structural prejudices and racism of our legal system. We see that time and time again. The reasons for urgency that the minister tabled are only just now being distributed around the chamber. Had it not been for the decision to not just wave this through, if the Senate had done what has, unfortunately, become common practice and just waved it through and said, 'Yes, sure, exempt this legislation from the cut-off,' had it not been for the action of the Greens in denying leave and wanting this to actually be debated, we wouldn't have even known what the reasons were. Maybe Labor has already seen these reasons. I don't know. I suspect not. But the Senate itself wouldn't have even known what the reasons were for urgency. If we look at the reasons for urgency, the document is only that long. It's one paragraph plus an extra sentence. This legislation is required urgently in response to the 'unprecedented threat of espionage and foreign interference'. Gee whiz, that's really detailed reasoning! This has happened time and time again in this area, in particular. Can we finally learn from our mistakes? (Time expired)
It's unfortunate that this debate has become a matter of the government versus the Greens. It is much broader than that. The issue currently before us is whether dealing with this legislation is urgent. The government asserts that it is urgent, and its statement of reasons—and thank you to the minister for circulating it—
Not urgently, quite so—simply an assertion that it is urgent. There is no reason why it is urgent. It doesn't say a national emergency or something bad is going to happen if these bills are not passed. Nothing bad is going to happen if these bills are not passed. We have had elections and by-elections before. Nothing will happen that hasn't happened before if these bills are not passed. There is simply no good reason why we can't debate these when we return in August, having had the opportunity of considering the final versions of the bills, amended according to the recommendations of the PJCIS, with more than 24 hours notice. There is no explanation for why we can't have sufficient time to consider the amended bills in this statement. It's just an assertion. There is no justification for this urgency.
I rise on behalf of the opposition to make a few points. The first is to recognise the reason for standing order 111, which is to ensure that the chamber has the opportunity to consider legislation. I make the point that the limb of that standing order which requires, in these circumstances, the minister to move the motion he has would not have been activated, as I understand it, if this message had in fact been received last night. It is standing order 111(5)(c). So let's understand: if the message had come over last night, then the Greens and the crossbench wouldn't be in the position of making the contributions they are making.
The second point I'd make is that we do agree that the principle of consideration of legislation by the parliament is important. These are national security bills. They were introduced in December of last year. They have been through an extensive—extensive—consideration process before the Parliamentary Joint Committee on Intelligence and Security.
An honourable senator: A closed shop.
I take the interjection of 'closed shop'. Yes, that is correct. It is an intelligence committee, peopled by parties of government, that receives national security briefings and considers national security legislation. We do not resile from that, and there are very sound national interest reasons for that.
The next point I'd make is it is incorrect to suggest that there has not been public consideration of these bills. As a member of that committee I'm indebted to Senator McAllister, who's made sure I have in front of me the list of hearings that we engaged in on the two pieces of legislation—the espionage legislation and the interference legislation. Those hearings on those two pieces of legislation happened in January, February and March, and in January, February and June respectively. We received 51 submissions on the espionage legislation and 92 submissions on the FITS Bill.
I do acknowledge this, and I will say this again in the second reading debate: I think there have been problems with the process relating to this legislation. With respect, I think that they were poorly handled by the former Attorney-General, as has been demonstrated by the lengthy process of consideration; the number of public submissions that have been critical of the drafting of the legislation; and the extensive amendments that have been required as a consequence of the intelligence committee's recommendation and which the government, I acknowledge, has accepted, which we think is a good thing. So those are the circumstances in which the opposition will be supporting the government in its request for urgency in relation to these bills.
I rise to support the sentiment of the Greens and, indeed, the crossbench in stating that this is complex legislation. Whilst the legislation has been considered in great detail by that committee, the information that's flowed out from that has flowed to us only very, very recently. We are not permitted to participate in the PJCIS, and so no-one could argue that there has been any ability for us to read and digest the information in that time frame.
I take Senator Leyonhjelm's point about the minister not really explaining the urgency. Normally you have to ground a claim when you make it, and it doesn't do you any favours, Minister, in not doing so here today. I make the point also that last week in the chamber I faced a round of criticism for not allowing debate on another bill, which I would argue was much, much simpler. I had the Labor Party heckling me across the chamber. I had Senator Wong accusing me of being in bed with Senator Cormann. I think the words were, 'When Senator Cormann says jump, Senator Patrick says, "How high?"' I don't know why this doesn't translate into this particular debate.
Yes, 'hypocrite' is the word that springs to mind here, in that Senator Wong is seeking to restrict debate on this particular matter.
Last week what I saw happen was that the Labor Party stood outside this chamber and suggested that, on tax cuts, they would only support stage 1; they wouldn't support stage 2. The first thing they did when they walked into the chamber was move a motion to support stage 1 and stage 2. That left me relatively confused. What I then drew from that was that there was to be an extended debate, a filibustering of the whole process, and for that reason we agreed with the government that it was just a tactic. But I don't understand exactly what is happening here. We'd like to have quite a lengthy discussion on this. We would have liked to have dealt with the bills separately. That, of course, has been denied us by an agreement by two parties that have shared the love inside the Parliamentary Joint Committee on Intelligence and Security but not the information.
That is an extraordinarily hypocritical contribution from Senator Patrick, I am afraid, because we ought to be very, very clear about the procedural motions that were supported by Centre Alliance just last week. Senator Patrick has indicated today that the reason he gave support to this was that he was confused by the Labor Party's position. I will tell you this: the best way to resolve confusion, if you are feeling confused in the chamber at any time, is actually to allow a debate to proceed; to allow the committee stage to proceed; to allow questions to be asked; and to allow the many parties in this chamber to provide a perspective. And that is what the committee stage allows. Unfortunately, that is not what was allowed. That is not what was allowed when the debate on corporate tax took place last week. Instead, what happened was that just 1½ hours was allowed for an extraordinarily complex process—just 1½ hours to debate a package worth $143 billion. That is an extraordinary abrogation of the Senate's responsibilities, and you ought to be ashamed for having supported it.
What then happened, even more remarkably, was that we went through, line by line, pages and pages of amendments, voting without discussion on the numbers—just colour-by-number Senate practice. That was entirely enabled by your decision to support the government's procedural motion to shut down debate on personal income tax. And, finally, the cruellest cut perhaps of all is that you voted, but when a message came back from the House of Representatives on personal income tax that we would consider without amendment or debate—abrogated the Senate's responsibility to scrutinise legislation and abrogated our opportunity to insist on the amendments we had recommended to the House of Representatives. So do not come in here and talk to us about process. The Labor Party today will facilitate debate on these bills: debate that follows a public process that commenced in December and is concluding now in June. We are completely comfortable with that, and you ought to be ashamed of the position you have taken in recent weeks.
I thank the Senate. I will make public the indication that I have already given the government: the Labor Party is not supporting a guillotine or a gag on this debate, unlike Centre Alliance last week.
Here we have the blame game happening around bad process. Yes, last week was bad process—have no doubt. The Greens believe that it was very bad process and our vote showed what we thought about that. However, one bad process does not justify another bad process. The fact is the crossbench was not involved in the committee that scrutinised these two bills. We've already said we don't think they should be debated together because we have serious concerns about both bills that need to be aired. They are separate bills, but bad process does not justify bad process.
The fact is there are 280 amendments that were made in a very short time frame in the House of Reps yesterday, which we have not had time to get across. We don't know if those amendments actually reflect the findings of the committee when they made their recommendations on these bills. And what do we get to justify the cut-off order which prevents us from adequately scrutinising those 280 amendments? We get a paragraph and a sentence about urgency that just says, 'These are urgent because they are urgent,' and throws in the word 'security'. We're all supposed to throw up our hands every single time the government and the ALP mention security and go, 'Ooh! We'd better do what they want.' Well, we don't think that's right to throw around the word 'security' when the security risk has not been increased from 'probable' for five years. So what does that mean about urgency? They throw around the word 'security', but when you actually look at it there hasn't been an increase in the threat level. But we are supposed to run around and go, 'Oh, anything you want.'
The crossbench don't think this is an appropriate process. We think it should be considered properly. We think we should be given the opportunity to properly scrutinise 280 amendments, and the community should be given a chance to properly scrutinise those amendments to see what they think. We have very serious concerns, as Senator McKim has already articulated, around what this package of bills means for our democracy.
We have not had that opportunity yet. We don't know what those amendments mean. We have concerns about those bills, which we have articulated clearly before, and yet we were still denied the opportunity to participate in the community process because the two old parties want to keep ganging together, throwing around the terms 'urgency' and 'security', and locking out the community. That's what this does. It locks out the community and its ability to properly scrutinise these bills, and it prevents this place from properly scrutinising these bills and looking at the impact of these bills and their 280 amendments—amendments that were blinked through in the House of Representatives without proper scrutiny, and now we don't have the ability to scrutinise them.
That's why we tried to refer these bills to the Senate Legal and Constitutional Affairs Legislation Committee—so that we could review what the amended bills mean and enable the community to have their say on them too. We don't support this being rushed through on the flimsy paragraph that says, 'They're urgent because we believe they're urgent, and just trust us.' Well, we don't trust you. We don't trust you on urgency and we don't trust you whenever you use the word 'scrutiny' and expect us to run round and go, 'Oh, okay, that's fine; we'll blink it through.' Well, we won't.
In concluding this debate on my motion, I remind senators of the point made by Senator Wong in her contribution. Had the message conveying these bills from the House of Representatives been received by the Senate prior to the Senate adjournment being moved at 7.20 last night, this motion of exemption would not have been necessary. So all of the debate and the touch of histrionics we've heard is because of 14 hours—the time between 7.20 last night and 9.30 this morning. That's the only point about time that is of relevance to why this motion is necessary. Of course, I doubt that those 14 hours are the fundamental reason as to why the Greens or others are opposing this. They are opposing this motion because they want to take a stance on other matters rather than on the substance of the motion.
The substance of the motion will allow proper debate of this legislation in the Senate. The Senate will go through its usual debate, as we have and as we will. Second reading debates will occur, and I see that amendments are being circulated. All of those considerations will no doubt take place over the coming hours. This debate has simply eaten into the time today that would otherwise have been available to get into that debate. I'm not going to delay the Senate any further, other than to highlight that the government has taken the action of bringing this legislation forward, as the reasons of urgency state, in response to the unprecedented threat of espionage and foreign interference. That's why we introduced the legislation, it's why we supported the full and proper examination through the PJCIS and it is why we now ask the Senate to consider this bill, as passed and amended by the House of Representatives.