Senate debates

Thursday, 16 August 2018


Counter-Terrorism Legislation Amendment Bill (No. 1) 2018; Second Reading

10:46 am

Photo of Don FarrellDon Farrell (SA, 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 Bill (No. 1) 2018. Labor has a track record that demonstrates our determination to ensure that law enforcement and national security agencies have the resources they need and the powers that are necessary to keep Australians safe. Labor also believes strongly in the importance of upholding the rights and freedoms that define us as a democratic nation, and I'm sure you would agree with that, Mr Acting Deputy President Marshall. It's essential, in designing legislation to protect our way of life, we do not compromise the very rights and freedoms that define us as a democratic nation and that foster harmony in our community.

National security is a fundamental duty of all parliamentarians, but, in putting in place laws to keep us safe, we must ensure those laws are consistent with the kind of society we're seeking to protect and to strengthen. Labor approaches questions of national security in a bipartisan spirit. However, bipartisanship does mean that Labor will simply agree with every measure the government proposes. Bipartisanship means that Labor will engage constructively with the proposals put forward by the government with a view to testing and, where possible, improving those measures.

It was in this spirit of constructive bipartisanship that, through the Parliamentary Joint Committee on Intelligence and Security's statutory review process, Labor worked hard over 2017 and 2018 to improve several security and law enforcement powers on the Commonwealth statute books. The important work of the bipartisan intelligence committee has seen a significant review into police stop, search and seizure powers, the control order regime and the preventative detention order regime in division 3A of part 1AA of the Crimes Act 1914. As well, there's been a review by the intelligence committee of sections 119.2, and 119.3 of the Criminal Code that declared areas provisions. There was a further and important review of the intelligence committee that resulted in its report, The Parliamentary Joint Committee on Intelligence and Security review of the operation, effectiveness and implications of division 3 of part III of the Australian Security Intelligence Organisation Act 1979.

This bill responds in part to these three reviews. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 was introduced into the other place on 24 May 2018. The Attorney-General referred the bill to the Parliamentary Joint Committee on Intelligence and Security for a review the same day. The government's complete adoption of the Phocis's recommendations is a welcome continuance of those longstanding conventions that the government of the day implements without reservation the bipartisan recommendation of the intelligence security. The intelligence and security committee's review of the police stop, search and seizure power provided under division 3A of part 1AA of the Crimes Act 1914 recommended that these powers be continued.

The bill inserts new provision CA into division 3 of part IAA of the Crimes Act 1914 to require reporting to the minister, the Independent National Security Legislation Monitor and the intelligence committee on the use of stop, search and seizure powers under division 3 of part IAA as soon as practicable after the exercise of power or powers, and an annual report to the minister. This recommendation is entirely in keeping with Labor's abiding commitment that our law enforcement and security agency officers should have the power needed to keep Australians safe. However, the report also recommends that these powers, which are extraordinary, should also be the subject of future review by the parliament and should not be allowed to simply fall into the permanence of the Commonwealth statute book. Similarly, the intelligence committee's recommendation that the control over the regime provided for under division 104 of the Criminal Code be continued, with the provisions sunsetting after three years. The bill adopts these recommendations. These control order powers have only rarely been used. The small number of occasions where they have been used is something that the intelligence committee commented upon in its report.

One feature of the bill is that it introduces new section 104.11A in the new subdivision CA of the Criminal Code. This would enable the court to vary the terms of an interim control order where there is a written agreement between senior Australian Federal Police members and a controlee. The explanatory memorandum states that this new section is designed to facilitate minor and uncontroversial variations to an interim control order, such as changed mobile telephone numbers, change of residential addresses or change in the educational or employment arrangements of a controlee. Labor supports this change as well because it is clearly desirable that there should be a speedy and, as far as possible, informal mechanism for the variation of the control order that deals with minor matters of this nature.

This bill also inserts a new section 104.28AA into the Criminal Code to set out the limitations on the issuing court's abilities to make cost orders in control order proceedings. Under proposed subsection 104.28AA(1), the issuing court must not make an order for costs against the controlee. However, if the issuing court is satisfied that the controlee has acted unreasonably in the conduct of proceedings, it may order costs against the controlee to the extent of the unreasonable conduct. Labor considers it essential that all the powers considered by this review be available to our agencies for as long as they are necessary to ensure the peace, safety and security of the Australian community.

However, Labor also considers powers such as these must continue to be seen and understood as extraordinary. These powers were brought into our criminal law and the law enforcement framework to meet the complex circumstances that have faced security and law enforcement agencies over the last two decades. Because these powers are extraordinary, it is essential that they are subject to sunsetting and continued parliamentary oversight through regular review of the intelligence committee. It was for this reason that the intelligence committee made the recommendation, which the government has also adopted, to amend the Intelligence Services Act for the purpose of providing greater parliamentary scrutiny of these powers. This is something that the intelligence committee, in its report on this bill, has welcomed.

I also note that the bill extends the sunset period for the declared areas provisions contained in the Criminal Code. The bill inserts a new exception to the declared area offences in 119.2(1) for individuals performing official duties for the International Committee of the Red Cross. This is a welcome protection for people in organisations carrying out humanitarian work in some of the most dangerous conflict zones in the world. The bill also amends schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 to provide:

… that the decisions of senior AFP members to provide or refuse consent to vary interim control orders under new section 104.11A of the Criminal Code will not be reviewable under the ADJR Act.

The bill extends the sunset date for the ASIO questioning and detention powers under division 3 of part III of the Australian Security Intelligence Organisation Act 1979 by 12 months to 7 September 2019. In paragraph 1.32 of its report on the bill, the intelligence committee commented on this particular provision in the bill in these terms:

The Committee notes that while the Bill implements one recommendation from the Committee's report into ASIO's questioning and detention powers, the remainder of that report (including the Committee's recommendation for repeal of the questioning and detention warrant power) is still being considered by the Government. As noted above, the intent of this recommendation was that there be sufficient time for a reformed ASIO compulsory questioning framework to be developed and then reviewed by this Committee.

This bill is somewhat unusual in that it responds to a single recommendation of the intelligence committee's report on ASIO's questioning and detention warrant power. While it did recommend the extension of the powers in division 3 of part III of the ASIO Act, which includes the powers provided for questioning and detention warrants, I note that the committee also recommended that the ASIO questioning and detention warrants regime should be repealed. This is a power that has never used by ASIO and, in light of the fact that ASIO is an intelligence agency and not a law enforcement agency, it's a power that Labor agrees is unnecessary because of the fact that ASIO works very closely with the Australian Federal Police. It's also worth noting that the two previous Independent National Security Legislation Monitors had recommended, before this earlier report of the intelligence committee, that this power be repealed.

It's important to note again that this bill does not repeal the ASIO questioning and detention warrant power. Indeed, the effect of this bill is to extend for a year a power that the PJCIS has recommended should be repealed. It's understood, and the intelligence committee has noted that it understands, that in extending both ASIO's powers, the questioning and detention warrant power and the questioning warrant power, the government simply is seeking to leave the whole regime in place for a period of 12 months while the government seeks to work through a replacement regime for that. Labor accepts that the short extension of the whole regime is appropriate, as did the intelligence committee, in order to allow time for a reformed compulsory-questioning framework to be developed.

It's worth noting that the government has accepted all the Parliamentary Joint Committee on Intelligence and Security's recommendations in respect of the approximately 10 national security bills that have been brought to this parliament since 2014. While this is the first occasion we're aware of that the government has seen fit to extend a power that is the subject of a repeal recommendation, we in Labor thank the government for its continued commitment to the implementation of the PJCIS report recommendations. We look forward to the full implementation of this recommendation. It's Labor's view that finding the right balance between our security and our rights and freedoms is a critical ongoing task that all parliamentarians must engage in.

Because new threats to our national security may suddenly arise or diminish as a consequence of events unfolding overseas or indeed in our own country, it's particularly important that our national security laws and capabilities are, to some extent at least, never taken for granted as a set-and-forget proposition. It was in recognition of the need for an ongoing review of our national security laws that Labor established the Office of the Independent National Security Legislation Monitor, and it was in recognition of the ongoing nature of this function that Labor fought hard for the retention of the monitor, even as the Abbott government announced in 2014 that the office would be abolished, in the misguided belief that its purpose was somehow complete. I'm pleased that the then Abbott government eventually backed down on its proposal to abolish the Independent National Security Legislation Monitor. The continued worth of the monitor has been shown in this bill, which picked up in a very real sense the 2017 review of the stop, search and seizure powers by the then Independent National Security Legislation Monitor, the Hon. Roger Giles AO.

I also note that the government's own independent intelligence review conducted by Michael L'Estrange and Stephen Merchant, which reported in the middle of last year, recommended that the intelligence committee should be given a broader power of oversight. I think that there would be general support in this place for the expansion of the intelligence and security committee's oversight role in light of that recommendation of the government's independent intelligence review.

We in Labor have a great respect for the law enforcement and national security officers who are currently serving our nation. We also acknowledge that the laws that we make also play a role in the safeguarding of our rights and freedoms. Members of the federal parliamentary Labor Party recognise that in Australia, as in many other similar democracies, the powers of intelligence and security agencies have been strengthened and expanded significantly in recent years as a consequence of an increasingly complex and unpredictable security environment. Labor agrees that the maintenance of public safety in the current security environment requires enhanced powers for the agency charged with this critical responsibility.

However, with legislative changes extending those powers, the requirement for reliable, effective external oversight and other safeguards is always critical to maintaining an essential level of trust in the community about the vital work of our security agencies. Labor will always work to keep Australians safe and at the same time will ensure that the rights and freedoms enjoyed by all Australians are upheld. Getting this balance right can be a challenging task, but we always approach this task in a bipartisan and constructive manner which should leave the Australian community in no doubt that Labor will always seek to ensure that the requirements of our safety and security are proportionate and balanced against the fundamental rights and freedoms that we hold dear as a nation.

11:01 am

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

This bill, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018, continues the slow, zombie shuffle into authoritarianism in this country. It joins the over 200 pieces of legislation that have been passed in the last 20 years in state, territory and Commonwealth parliaments that erode fundamental rights, freedoms and liberties in Australia. These are rights and freedoms that we have sent our people overseas to fight and die to protect and enhance over many decades. We are now trading them away with absolutely no reasonable argument that in doing so we are making our community any safer. That's why the Greens have consistently advocated for a counterterrorism white paper so that the arguments can be advanced, considered and assessed as to whether or not these erosions of fundamental rights and freedoms, which are ongoing and accelerating in our country, are doing as the bipartisan Labor and Liberal parties in this place are claiming—that is, making our community safer.

But it's not just legislation that's having a chilling effect on our democracy. We've seen decisions like the one taken recently by the Attorney-General to charge Mr Bernard Collaery and Witness K with conspiracy, a decision that will have a chilling effect on our democracy and the capacity of citizens in Australia to hold a government to account for its actions. That was a disgraceful decision. The Attorney-General has attempted to pass responsibility for it to the DPP, but ultimately this was a political decision made at the political level by the Attorney-General to charge Mr Collaery and Witness K. In fact there is a very strong argument that the crime here was committed by representatives of the government when they made the decision to bug the East Timorese government in an attempt to defraud Timor-Leste of its rights over the Timor Sea oil and gas fields. That's why—and I want to acknowledge Senator Patrick for his leadership role here—a number of us have referred that matter to the Australian Federal Police, because to the best of our knowledge there was never an investigation made into whether or not the decision to bug the Timor-Leste government was a crime. I believe it was a crime, I believe it went right to senior levels in government and I believe that those people who were involved in that crime need to be held to account for their actions.

This piece of legislation effectively rolls over a piece of legislation that otherwise would have sunsetted on 7 September 2018. Of course, the Standing Committee for the Scrutiny of Bills did raise significant concerns regarding this bill's trampling of personal rights and liberties and noted that those measures were originally introduced on the basis of being a temporary response to an emergency situation. I would argue strongly that the emergency situation no longer exists, and yet this oppressive authoritarianism marches on in Australia. There are countries around the world which are debating loudly, in the public domain, the slow march to fascism, but that's not a debate that's happening to a meaningful degree in our country. We see this ongoing erosion of the rule of law and of fundamental rights and freedoms—which are part of what actually sets us apart from the people that many call terrorists—without proper checks and balances, only assessed through the closed shop of the Parliamentary Joint Committee on Intelligence and Security, which is just a bipartisan closed shop; there is no representation from the crossbench on that committee. And when we see this ongoing march towards authoritarianism, totalitarianism and ultimately, unless we put the brakes on, a fascist state in Australia, we all ought to be very concerned. I say to both the parties that get together behind the closed doors of the Parliamentary Joint Committee on Intelligence and Security: I truly believe history will judge you very harshly for the decisions that you make in the name of public safety and counterterrorism.

This bill deals with two main areas—preventive detention orders and declared areas. In regard to preventive detention orders, I understand that federal law enforcement agencies have yet to use the preventive detention order powers, despite having had the power to do so for a decade. It's important to place on the record that these powers run contrary to the rule of law. They run contrary to the presumption of innocence and they undermine basic rights and freedoms in this country. We've seen no real evidence that these measures make our community any safer, and the government is continuing to fail in its argument for such measures. They have to be seen for what they are: a power grab from a power-hungry government within a police state, cheered on by the Labor Party. While most people read George Orwell's Nineteen Eighty-Four as a warning, Peter Dutton read it as a blueprint.

The declared areas part of this legislation is another example of legislation that in effect presumes guilt without evidence. A prosecution need not establish proof of intent to engage in terrorist activities. We're very concerned about this. Those concerns are shared by Professor George Williams and Dr Nicola McGarrity of the University of New South Wales, and those concerns are on onus of proof, the fact that defences are too limited and the fact that legitimate reasons such as religious pilgrimage, conducting business or commercial transactions or visiting friends are ignored.

As I've said before, the Australian control order regime is, in broad terms, based on the UK model. But there's a big difference between Australia and the United Kingdom: the United Kingdom has protections in terms of the Human Rights Act. Australia remains the only liberal democracy in the world that does not have some form of charter or bill of rights, and that's why the Australian Greens will soon be moving for an inquiry into the form that such a charter of rights should take in Australia and which rights should be protected and enshrined. It's not good enough that we remain the only liberal democracy in the world that doesn't respect civil liberties and human rights enough to enshrine them in some way in law.

This government, as I have said, has consistently failed to make the case for the ongoing erosion of rights and freedoms in our country. Again, we in the Australian Greens have consistently argued for not only a charter of rights but also a counterterrorism white paper so that we can assess on a strategic and holistic basis whether or not this ongoing erosion of civil and human rights and freedoms in Australia in the name of counterterrorism is proportional, whether it's warranted, whether the government's made the case, whether Labor has made the case and whether, in fact, this ongoing erosion of rights and freedoms is making us any safer whatsoever. But the government won't do that, despite the fact that we've been calling for it for a while and despite the fact that there has been a counterterrorism white paper in the past. The argument that's put against a counterterrorism white paper, which is that this is a rapidly evolving strategic environment, doesn't stack up. Yes, it is a rapidly evolving strategic environment, but what we need is a living, breathing, evolving white-paper process so that our strategic considerations of how we respond to threats to our community can actually evolve as those threats increase, diminish or change.

We take no comfort at all from the government's assertion that control orders will only be invoked in limited circumstances. History is replete with powers being created for one specific purpose that, down the track, become normalised and used by subsequent governments for a range of other purposes. The danger here is that control orders could become a new normal, and that's particularly true when you fit this piece of legislation into the ongoing and continuing erosion of civil and human rights in Australia.

The Parliamentary Joint Committee on Human Rights has reported three times in relation to this legislation and continues to raise concerns about it. I want to place on the record that the Parliamentary Joint Committee on Human Rights most recently, on 26 June, continued to, in its own words, 'raise serious concerns about the compatibility of the regime with human rights'. Clearly, this bill engages and limits a number of fundamental rights—rights that Australia has signed up in international treaties and protocols to protect and defend. Again, it's the view of the Australian Greens that the government has abjectly failed to make the case around the necessity of those limitations or, in fact, whether those limitations are reasonable and proportionate.

We will be opposing this legislation on the basis that the government has abjectly failed to make the case; on the basis that the government continues to refuse to engage in a process like a white paper on counterterrorism so that it gets an opportunity not only to try and make the case but also to be held to account for any failures to make the case; on the basis that this has only been subjected to an inquiry in the closed shop of the Parliamentary Joint Committee on Intelligence and Security; and on the basis that this continues the slow zombie shuffle into authoritarianism in our country.

11:12 am

Photo of Rex PatrickRex Patrick (SA, Centre Alliance) Share this | | Hansard source

I rise to contribute to the debate on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018. It is the latest in a long line of national security bills that have been introduced into this parliament since the September 11 terrorist attacks in 2001. As outlined in the Bills Digest, this bill has three key purposes: to extend the provisions relating to control orders, preventative detention orders and the declared area offence, and terrorism-related stop, search and seizure powers, for a further three years; to extend the provisions relating to questioning warrants and questioning and detention warrants for a further 12 months; and to implement the government's response to certain recommendations made by the Independent National Security Legislation Monitor and the PJCIS in their most recent reviews of those provisions.

Centre Alliance will be supporting the bill. Centre Alliance supports appropriate powers being granted to our law enforcement and national security agencies to keep Australians safe. However, Centre Alliance also strongly supports robust oversight measures to ensure that the rights and freedoms that these laws are designed to protect are not compromised. I am pleased to see that the government has agreed to amend the Intelligence Services Act for the purpose of providing greater parliamentary scrutiny of these additional powers.

I note that the PJCIS, in its report on the bill, welcomed this. At paragraph 134 of the committee's report, the committee said:

The Committee also welcomes extension of its oversight to include Division 3A of Part IAA of the Crimes Act 1914 together with the additional reporting requirements that will be imposed. As the Committee noted in its earlier report, Committee oversight of the stop, search and seizure powers is in line with other review and oversight functions exercised by the Committee in relation to counter-terrorism.

It would come as no surprise that I want to address the need for the Intelligence Services Act to be amended to extend parliamentary scrutiny to the operations of Australia's national security and intelligence agencies. Most senators would be aware that I have attempted to effect this change through a series of amendments, for which I have been unsuccessful in getting support from this chamber. I've also attempted to refer amendments to the PJCIS but once again failed to get the support of the Senate.

On Tuesday this week, I introduced a private senator's bill, the Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Bill 2018. As stated in the second reading speech to the bill, the PJCIS is explicitly prohibited from reviewing the operations of Australia's intelligence agencies. The PJCIS is prohibited by the Intelligence Services Act 2001 from reviewing intelligence-gathering priorities and operations of Australian intelligence agencies or the assessments and reports they produce. The committee is further barred from examining sources of information, operational activities and methods or any operations that have been, are being or are proposed to be undertaken by intelligence and national security agencies. The PJCIS is also prohibited from reviewing the privacy rules made by ministers that regulate the communication and retention by agencies of intelligence information concerning Australian persons. These limitations on parliamentary scrutiny have reflected the historical reluctance of past governments and intelligence officials to trust members of parliament outside of the executive with the most sensitive intelligence information. However, the PJCIS can't hold these agencies properly accountable for their activities if the parliament continues to ban its own committee from reviewing their operations and other activities. Nor can expenditure and administration be adequately examined without consideration and reference to operational performance.

I acknowledge the advocacy of former Senator Faulkner, who strongly urged this broad reform. The Leader of the Opposition in the Senate, Senator Penny Wong, has also rightly observed that parliamentarians cannot outsource their duty to ensure the security of our nation and the people who entrust us with the responsibility of governing. This is absolutely true. If democratically elected MPs and senators cannot be trusted to deal directly with these questions, then there is something wrong with the relationship between the intelligence community and the parliament that it is ultimately meant to serve.

While I won't be moving amendments that reflect the bill I introduced, I will be seeking the support of the Senate next week to refer it to the PJCIS for inquiry and report. I note that Mr Dreyfus, in his second reading speech on this bill, said:

Labor continues to press for the significant changes to the role of the intelligence and security committee that were recommended by Senator John Faulkner in reforms, which were subsequently have been taken up in a private senator's bill by Senator Penny Wong, and by the independent intelligence review of 2017. These powers of oversight go beyond the expanded powers provided for in this bill, because necessarily the reviews which are reflected in this legislation are limited to the powers that are reviewed. We look forward to the government positively responding to its own review and assisting Labor with the implementation of the Faulkner reforms.

I want to make it clear that Centre Alliance fully supports our intelligence services, but they're not infallible in their judgement and they're not infallible in the execution of their tasking. No-one can be at the top of their game all of the time. So I'm not suggesting any criticism here.

I had the Parliamentary Library look into the times where our intelligence services' decisions have been called into question or the conduct or effectiveness of their operations has been called into question. It is quite a lengthy document, but it covers a number of decades. I will give you a few examples I have pulled from there: ASIS and the Chilean coup, I think it was in 1973; the Sydney Hilton bombing; the Sheraton Hotel incident; the Haneef affair; and, of course, the 2004 bugging of the East Timor cabinet rooms, which most people will be familiar with as the witness K story.

I note that people are still using the word 'alleged' when they refer to that bugging. But I think we can be absolutely satisfied that there was truth in that. There are proceedings on foot in the ACT in relation to what I presume is the revealing of those operations. I'm not conceding that on anyone's behalf, but I suggest that you can't bring proceedings about the release of information about a fictitious operation. That doesn't make any sense. So I think we can get away from calling the operation 'alleged'; it occurred. That operation occurred back in 2004, at about the same time that Jemaah Islamiyah were engaged in planning and actually bombing the Australian Embassy. At that time, we diverted our intelligence resources from the counterterrorism task to spying on the East Timorese during negotiations over oil rights in the Timor Sea.

East Timor has been a good ally and loyal friend of Australia. Their support of our soldiers fighting the Japanese in 1942 was vital. The East Timorese suffered 40,000 deaths due to aerial bombings and the Japanese destruction of villages suspected of sheltering Australian troops. Australian troops were protected—and I quote from Senator Neville Bonner—'at the expense of the lives of many, many East Timorese'. So I find it unconscionable, immoral and illegal conduct for our spying agencies, when we are engaged in a joint-venture negotiation with one of the poorest countries in our region, to spy on them to gain advantage during those negotiations. Hopefully, the AFP will conduct its investigations into the matter thoroughly. I put it that there has been a breach of ACT law in respect of that. If we had parliamentary scrutiny in place at the time, that operation may never have occurred. It was an operation that was authorised by the Liberal government—and perhaps the weight of the moral compass of the Labor Party at the time would have made sure that did not occur.

We now have an intelligence service that has 7,000 officials working in the field and a budget of about $2 billion. This parliament has extended its powers—and some of them are secret powers, powers exercised in secrecy. When we do that, we need to make sure we have the right checks and balances in place. I congratulate the government in this instance as they have increased a power, or extended the time associated with a power, to balance that correctly with parliamentary oversight. Parliamentary oversight is a good thing. Our allies use it. Our Five Eyes allies have parliamentary or congressional oversight. The USA has very, very strong parliamentary oversight. The Canadians have parliamentary oversight. The UK has parliamentary oversight. So we are an outlier. Parliamentary oversight of the intelligence services would strengthen the public's confidence in our intelligence services. I commend this bill to the Senate, but I strongly urge that we get on and deal with proper oversight of our intelligence services at the first available opportunity.

11:24 am

Photo of David LeyonhjelmDavid Leyonhjelm (NSW, Liberal Democratic Party) Share this | | Hansard source

I rise to speak on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018. This bill extends powers that are due to sunset on 7 September 2018. It's almost not necessary to explain why I oppose this bill, because just reading out what those powers are that are being extended is almost sufficient by itself. I will go through them. The bill extends for three years the Commonwealth control order regime. This allows a court to impose restrictions on a person without needing to suspect the person of a crime or to intend to charge the person with a crime and where noncompliance with that order can lead to five years imprisonment.

The bill extends for three years the Commonwealth preventive detention regime, which allows the Australian Federal Police to detain a person for up to 48 hours without needing to suspect the person of a crime or to intend to charge the person with a crime and where, again, noncompliance with that detention can lead to five years imprisonment. It extends for three years the Commonwealth's declared areas provisions, which make it an offence punishable by up to 10 years imprisonment to enter or remain in an area in a foreign country declared by the foreign minister. It extends for three years the Commonwealth's stop, search and seizure powers, which allow a person in a Commonwealth place in a prescribed security zone to be searched without a warrant and without the need for reasonable suspicion. The bill also extends for one year ASIO's power to have a person who is not suspected of a crime forcibly taken into custody, detained for up to seven days, required to answer questions and provide documents, and required to not disclose the questioning and detention, with noncompliance punishable by up to five years imprisonment.

These five powers—four to be extended for three years, one for one year—are scarcely used. The control order regime has been used just six times. The preventive detention regime has never been used. The declared areas provisions have never been used. The stop, search and seizure powers have never been used. ASIO's power to hold people for questioning for up to seven days, which they're not allowed to tell anyone about, has been used 16 times. So the question is: if those powers are not being used, why are they there? There is no specific threat referred to as justification for extending them. On the one hand, in a liberal democracy—a true, free society—they are of little use and benefit. They would, on the other hand, be of considerable benefit to an authoritarian regime which was seeking to establish its authority. Therefore, this is a risk to society. This is a risk to our freedom. This is a risk to liberal democracy. We are handing powers, which we say are fine—they haven't been used; they will only be used in rare instances—to authorities basically as a blank cheque. As Senator Patrick has so eloquently discussed just prior to me speaking, there is no parliamentary oversight for the use of those powers. This is a travesty of democracy. It is contrary to the principles of a free society. I emphatically oppose this bill.

11:29 am

Photo of Nigel ScullionNigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | | Hansard source

I thank the honourable senators for their contribution to the debate on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018. Since September 2014, Australia's national terrorism threat level has been at 'probable'. This means that there is credible intelligence assessed by our security agencies indicating that individuals or groups continue to possess the intent, the capacity and the capability to conduct a terrorist attack in Australia.

In this prevailing threat environment, it is critical that our law enforcement and security agencies have the powers they need to protect the community from the threat of a terrorist act. Consistent with the recommendations of the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, and the Independent National Security Legislation Monitor, the INSLM, this bill extends the operation of the control order regime, the preventive detention order regime, the declared area provisions and the terrorism stop, search and seize powers beyond their sunset date of 7 September 2018. These powers will operate for a future three years, until 7 September 2021.

Each of these powers plays an important role in equipping our agencies with the capabilities they need to address the threat of terrorism. The control order and PDO regimes are vital preventive powers that enable law enforcement agencies to take proactive steps to mitigate the threat of a terrorist act where traditional law enforcement powers are not available. The declared areas offence forms an important element of managing the risk posed by the return of Australians who have participated in conflicts overseas with a listed terrorist organisation. It equips our law enforcement and prosecution agencies with the tools to arrest, charge and prosecute returning foreign fighters. Terrorism stop, search and seize powers under the Crimes Act enable law enforcement agencies to act immediately in the event of a terrorism threat to or a terrorism incident within Commonwealth places such as airports and defence establishments.

The bill will continue the Australian Security Intelligence Organisation's questioning and questioning and detention powers in relation to terrorism offences for a further 12 months. This will enable the continuation of these important intelligence gathering powers while the government considers the PJCIS's other recommendation in relation to ASIO's powers.

In accordance with the recommendations of the PJCIS and the INSLM, the bill also makes other amendments to these counterterrorism provisions to ensure they continue to meet the operational needs of law enforcement agencies whilst also ensuring the proportionality of these regimes. The bill also increases independent oversight of these counterterrorism provisions to promote greater accountability and transparency around their use. Enhanced oversight provides confidence that these extraordinary powers are being exercised judiciously and in appropriate circumstances by Commonwealth agencies.

I'd like to thank the PJCIS and the INSLM for their detailed consideration of each of the sunsetting counterterrorism powers and offences. The work of the PJCIS and the INSLM was invaluable in informing the deliberations of government on the necessity and effectiveness of these critical counterterrorism provisions and ways to improve their operation. I also thank my colleagues across all sides of the chamber for recognising the need for these important measures. This bill reflects the government's ongoing commitment to ensuring that Australia's counterterrorism legislative framework remains robust and that our law enforcement and security agencies have the powers they need to respond to the evolving threat of terrorism.

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

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