Wednesday, 19 September 2018
I was in continuation when we suspended this discussion prior to senators' statements earlier today. I indicated then that I would go through some background in relation to the address-in-reply because it's been some time since we addressed this debate. I was highlighting that it's with some surprise that we are now occupying government business time with this debate rather than any agenda that the Morrison government might seek to progress before the Senate.
The Governor-General, His Excellency General the Honourable Sir Peter Cosgrove, addressed both houses of the parliament on 30 August 2016. The day after the address-in-reply was listed for debate in the Senate, Senator Hume moved that the address-in-reply be agreed to. Fortunately for the government, the Senate agreed to suspend standing order 34 enabling the Senate to consider business other than that of a formal character before the address-in-reply to the Governor-General's speech was adopted. That was fortunate, because His Excellency's speech was some two years ago. Here we are still debating the address-in-reply, and we can't escape the glaring fact that this is to fill a spot in the program because the Morrison Liberals don't have enough business. More surprising, too, is that the draft red for tomorrow lists this as the Morrison government's principal item, again, for debate tomorrow. There is still no agenda. This week, we have seen senator after senator on the government side of the chamber line up to waste time and speak repetitively on bills that the opposition and the majority of senators have agreed with. We've even had the farcical spectacle of government senators voting to block Labor's moves to pass the government's bills expeditiously. This occurred twice on Monday.
I'd like to briefly reflect on the stark differences on the handling of this matter between the two houses of the parliament. The Speaker of House of Representatives delivered the address-in-reply to His Excellency at Government House in Yarralumla on Tuesday, 23 May 2017—well over a year ago. In this chamber we have instead seen a legislative program dominated by bills that focus on the Abbott-Turnbull-Morrison government's obsession with union bashing or helping its mates at the big end of town. For example, we wasted an inordinate amount of time around the enterprise tax bill, which would have seen big businesses get a $65 billion tax cut. There have also been the Australian Building and Construction Commission and the registered organisations bills that the government failed to pass before the last election and used as a trigger for the double dissolution election in 2016—ironically, the bills that led us to this address-in-reply.
What this highlights is that the government has run out of steam. We're only debating this two years on from when this parliament first met, because the Morrison government has no agenda and is simply trying to stack its legislative program with place fillers, like this, that should have been finalised long ago. In fact, this delay in finalising this matter is disrespectful to the Governor-General and should have been addressed some time ago.
Finally, I would like to also make the point that the Prime Minister under whom we are debating this address-in-reply today is not the same Prime Minister who was in office when His Excellency actually delivered the opening speech outlining the Turnbull government's agenda. So we are still technically debating the Turnbull government's agenda. Not only do we have a government that has no agenda and no reason to be in office but we also have a Prime Minister who rolled the former Prime Minister, Mr Turnbull, for no apparent reason—well, at least not a reason that any government member, other than perhaps the Deputy Prime Minister, has been able to explain to the Australian people.
Don't get me wrong. The Governor-General's opening speech is a very important process and institution in the parliament, but it shouldn't be used by those opposite as a means of covering up that they are a government in name only. They don't have a plan. They are divided and dramatically disunified and really should be calling an election as soon as possible so that the Australian people can have their say on this chaos that continues to engulf the Liberal Party. They should give the Australian people an opportunity to elect a Labor government that has a clear, fair and responsible plan that is focused on delivering for this nation, for the Australian community, and not just for themselves.
I rise to respond to the Governor-General's opening speech during this address-in-reply, and I do so with a view to discussing a situation that we have before us that should be of great concern. As we all know, Australia's national interests are best served by a rules based international order. The 2016 Defence white paper mentioned a rules based order 53 times. The Foreign policy white paper put out by DFAT in 2017 mentioned a rules based order 15 times. We need to practise what we preach, otherwise DFAT will become a rather expensive department that has no credibility, and that's not in the national interests. This overriding national interest is the context of my following remarks.
In March 2002, three months before East Timor became an independent state, Australia's then foreign minister, Mr Alexander Downer, withdrew Australia from the maritime boundary jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea. That meant East Timor couldn't claim its right under international law to a maritime boundary halfway between the two countries' coastlines. How's that for a rules based international order?
Meanwhile, on 20 September 2002, the Howard government awarded an exploration contract for an area partly on East Timor's side of the median line. East Timor protested but couldn't go to the independent umpire. The government awarded similar contracts in April 2003 and February 2004, also protested by East Timor. Then, in November 2002, Mr Downer warned East Timor's Prime Minister that Australia could hold up the flow of gas from the Timor Sea for decades. He said, according to a transcript of the negotiating records, 'We don't have to exploit the resources. We can stay for here 20, 40, 50 years. We are very tough. We will not care if you give information to the media. Let me give you a tutorial in politics—not a chance.'
In December 2002, the Sunrise project partners, Woodside, ConocoPhillips, Shell and Osaka Gas, announced the indefinite delay of the project, an obvious tactic to pressure East Timor to accept Mr Downer's demands. The bottom line here is that Mr Downer and Woodside wanted to force East Timor, one of the poorest countries in the world, to surrender most of the revenue from the Greater Sunrise project—revenue that it could have used to do much with, including dealing with its infant mortality rate. Currently, 45 out of 1,000 children in East Timor don't live past the age of one. Yet our plan was to deprive them of oil revenue.
It's prudent at this time to mention that one of Mr Downer's senior advisers at the time was a man named Mr Josh Frydenberg. It's relevant to something I will talk about later.
Mr Downer then ordered the Australian Secret Intelligence Service to bug East Timor's negotiations. ASIS installed listening devices inside East Timor's ministerial rooms and cabinet offices under the cover of a foreign aid program, piling cynicism onto callousness. The espionage operation occurred at the same time the Jemaah Islamiyah terror group bombed the Australian Embassy in Jakarta on 9 September 2004, when Mr Downer and Prime Minister John Howard were assuring the public that they were taking every measure against extreme Muslim terrorism in Indonesia.
Introducing another character into the story, Mr Nick Warner was involved in the spying operation. Mr Warner went on to become the head of ASIS and has since been appointed as the Director-General of the Office of National Intelligence. I also note that Mr Frydenberg was an adviser in the Prime Minister's office at the time of the spying. I will have more to say on that on another day.
Spied on, threatened and unable to seek redress at the International Court of Justice, East Timor signed a treaty in January 2006. This blatantly unfair treaty denied them their right to a maritime border on the median line. It also, in effect, created a permanent regime over the length of the Greater Sunrise project's commercial life. The major beneficiary of this negotiation was Woodside Petroleum. The then Secretary of the Department of Foreign Affairs and Trade, Dr Ashton Calvert, had already resigned and joined the board of directors of Woodside Petroleum. Mr Downer took a lucrative consultancy with Woodside after leaving parliament in 2008. There are also credible rumours of disquiet within ASIS over the diversion of scarce intelligence assets away from the war on terror and towards East Timor.
Aware of Mr Downer's consultancy work for Woodside, Witness K complained to the Inspector-General of Intelligence and Security about the East Timor operation. ASIS took steps to effectively terminate his employment—an outcome that is not unusual for whistleblowers in this country. In response, Witness K obtained permission from the IGIS to speak to an ASIS-approved lawyer, Bernard Collaery, a former ACT Attorney-General. After 2½ years of research, Mr Collaery determined that the espionage operation in East Timor was unlawful and may also have been an offence under section 334 of the Criminal Code of the ACT.
Going to the specifics, the case rested on the fact that the then director of ASIS, David Irvine, ordered Witness K, the head of all technical operations for ASIS, to place covert listening devices in the East Timorese government buildings. Those instructions enlivened the section 334 offence in that it constituted a conspiracy to defraud Australia's joint venture partner, East Timor, by gaining advantage through improper methods when the Commonwealth was under a legal obligation to conduct good-faith negotiations.
The events that followed are well known. The East Timorese took Australia to the Permanent Court of Arbitration, which saw Australia eventually agree to renegotiate the treaty. That was an acknowledgement that the operation had occurred. As part of those proceedings, Witness K was to give evidence in a confidential hearing. David Irvine—that's the name I introduced a moment ago—in his subsequent role as Director-General of ASIO, organised raids on the homes and offices of Bernard Collaery and Witness K on 3 December 2013. At the same time the raids occurred, the Australian government revoked Witness K's passport. We know from inquiries made at estimates last year by then Senator Xenophon that the competent authority in law advising the foreign minister on Witness K was not the AFP or ASIO, as you would normally expect. Rather, it was ASIS, headed by a somewhat conflicted Nicholas Warner, noting his involvement in the original illegal bugging operation.
The day after the raids, former Attorney-General George Brandis came into this Senate chamber and threatened criminal prosecutions for 'participation, whether as principal or accessory, in offences against the Commonwealth'. I've recently found out through Senate estimates that the AFP received a referral from ASIO about this matter on 13 December 2013. The AFP began its investigation on 10 February 2014, a few months later. One year later, on 18 February 2015, the AFP gave a brief of evidence to the Commonwealth Director of Public Prosecutions. The result? Nothing. Zip. Nada—until now.
In May 2018, three years later, and just after the Joint Standing Committee on Treaties finally held public hearings on the Timor Sea Treaty, the CDPP filed charges. Sarah Naughton SC from the CDPP really has to explain this interesting timing. Did she and her predecessor hold off until diplomacy was out of the way? And that's not all she has to explain. Amongst the charges before the ACT court—this is public domain information—are conversations Collaery is alleged to have had with a number of ABC journalists and producers: Emma Alberici, Peter Lloyd, Connor Duffy, Marian Wilkinson and Peter Cronau. In fact, the first time this was reported in the press, the journalist responsible was Leo Shanahan on 29 May 2013 in The Australian. Shanahan quoted Collaery directly as saying:
Australia clandestinely monitored the negotiation rooms occupied by the other party …
… … …
They broke in and they bugged, in a total breach of sovereignty, the cabinet room, the ministerial offices of then prime minister … and his government.
But Leo Shanahan wasn't mentioned on the charge sheet. Only the ABC journalists were. Is she trying to protect him because she's hoping to get friendly coverage of a case from his employer, The Australian? Is she going after the government's perceived enemies at the ABC? The prosecution requires the consent of the Attorney-General, Mr Christian Porter. Mr Porter consented, claiming on 28 June this year that all he did was agree to an independent decision by the CDPP, but as the Attorney-General he is no cipher. He is well aware he has the power to decline prosecution, for example, by questioning the general deterrent value of such court action. What is the utilitarian value of such a prosecution this former lecturer at the University of Western Australia could have asked?
Relevant to this, on 1 July, three days after the Attorney's press release acknowledging his consent, Niki Savva, former senior adviser to Prime Minister John Howard and Treasurer Peter Costello and now journalist and commentator, said on ABC's Insider:
I just think it's very fraught, the whole thing, because from my understanding, George Brandis had asked for an additional piece of information from the CDPP on this issue which fortuitously or not landed on Christian Porter's desk when he took over with a very strong recommendation to prosecute. So I think if Porter had ignored that and it had subsequently come out, then he would have faced a lot of grief so I don't think he had any choice but to proceed. So everything hinges now on the court case.
This extraordinary statement cries out for an explanation. How would Niki Savva know what Brandis had asked the CDPP for and whether it had been provided to Porter and when or what the CDPP's brief contained? Is there a leak? Did Attorney-General Christian Porter leak the contents of the brief to Niki Savva either directly or through an intermediary or did the CDPP leak it? One thing we do know is that Ms Savva made the remarks and we know she's not a fantasist.
My colleague in the other place Andrew Wilkie referred Niki Savva's statement to the AFP the next day, on 2 July. They wrote to him on 18 July and said they couldn't accept the matter but would reassess if he provided more information. Of course, this is something that's very difficult to do. I asked some questions on notice to the Attorney-General last month and got a rather uninformative response, which I've subsequently written to him about. I'm curious to know why the AFP did not, at the very least, make a few calls to the A-G's department. Surely the A-G would respond properly to a preliminary investigation by the AFP. It's a question I will ask the AFP at our next estimates.
Moving along, I, along with Mr Wilkie and my Senate colleagues Senator McKim and Senator Storer, also asked the AFP to investigate the original conspiracy to defraud the government of East Timor under section 334 of the Criminal Code of the Australian Capital Territory. The AFP advised us that, should further material become available indicating Commonwealth offences were being committed, the AFP will reassess the matter. This is a catch-22 situation if I ever saw one. Clearly, the details of Mr Downer's alleged conspiracy to defraud the government of East Timor are unavailable to people outside the principal alleged conspirators. How are we meant to get those details? There's a prima facie case of a section 334 violation, patently so because Witness K is an amenable witness. It's up to the AFP to request an interview with Witness K himself.
Intelligence officers are not above the law. We know this from a number of cases, including the High Court case of A v Hayden, also known as the ASIS case. The AFP advised me on 3 August this year that they have no jurisdictional issues investigating crimes committed by intelligence agencies, so why haven't they? Perhaps the relations with Minister Frydenberg and the government are more important. Perhaps the fact that the AFP are now technically part of the intelligence community that Mr Nick Warner happens to head has created resistance to investigate.
I did ask the Attorney-General to confirm if the current head of ASIS, Mr Paul Symon, was informed of the prosecution of Witness K and Mr Collaery. I asked the same about Minister Frydenberg and Mr Nick Warner—no response. There are many more questions. Ms McNaughton is handling the case through her organised crime and counterterrorism unit as though Witness K and Bernard Collaery are potential terrorists. The avenue of attack sees the use of the National Security Information Act 2004, which was enacted during the war on terror in response to terrorist threats. It gave enormous power to the prosecution to seek orders from the court to classify information as confidential based on decisions by the executive as to what information is confidential.
Of course some secrecy is needed. ASIS officers' identities must be kept secret, because if foreign governments know who our spies are then they can identify the agents in their countries and take countermeasures against them. If foreign governments were to learn Witness K's real name, they might be able to identify his agents in their countries and take countermeasures against them. People who betray their country would no longer dare risk their safety by dealing with Australian spies.
But Witness K and Mr Collaery appear fully committed to this kind of secrecy. Indeed, Witness K can give evidence whilst having his identity concealed. That is precisely what happened in the British inquest into the downing of an RAF Hercules aircraft in 2005. Among those killed was an Australian airman, Flight Lieutenant Pau Pardoel. All the special forces witnesses who testified had their identities protected. The same method could easily be handled by the ACT Magistrates Court.
But in this case a fundamental unfairness occurs because the prosecution is proposing orders that the entire matter be heard in secrecy. This is from a government which repeatedly makes national security public interest claims in this place in respect of orders for production and has been found to be wrong consistently. This government has lost all credibility in this space. The approach is blatantly aimed at giving the executive the power to classify lawful behaviour as secret and to prevent that behaviour from being disclosed. In plain English, the government is trying to prosecute people for revealing its crimes.
The people of East Timor have traditionally been good allies and loyal friends 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 destruction of villages suspected of sheltering Australian troops by the Japanese. Australian troops were protected at the expense of and the lives of many, many East Timorese people, Senator Neville Bonner said in a statement to the Senate in 1977. And yet the government ordered an espionage operation against East Timor's negotiators to gain significant advantage in those negotiations. The operation has caused considerable disruption, ending only recently when we renegotiated the treaty—hopefully, this time without spying.
In the period between the spying and now, East Timor's sentiment towards Australia has deteriorated substantially and China has managed to increase its influence through the use of soft power. The government sanctimoniously calls for a rules based international order, and that just looks like sheer humbug. It's time for this farce to end; it's time to bury this issue. We did the wrong thing to East Timor. It was called out by honourable people and now we seek to prosecute them. Australia committed a crime; the government committed a crime. No-one is above the law and we need to investigate that properly. All of this stuff to do with Witness K and Mr Collaery in the courts is just ripping the scar off a wound in East Timor, and I urge the government to rethink the process they're going through. Thank you.
I am responding to the Governor-General's opening address and will tonight be talking about the power of words, and how the choice of words of successive governments has slowly corroded public sentiment towards vulnerable asylum seekers.
Not so long ago, refugees who arrived by sea were just 'boat people'; now they are 'illegal arrivals', even though they have not broken any laws, or 'queue jumpers', even though there is no such queue. The vast majority of asylum seekers are found to be genuine refugees. They've often fled horrors we can only imagine and yet we treat these men, women and children as though they should be punished for seeking asylum in Australia.
Let's look at Australia's hardline policy. Prime Minister Morrison takes pride in having stopped the boats, but this has become such a mindless mantra that the government ignores the irreversible harm its own policy is doing, as though stopping one evil cancels out another. Make no mistake: what Australia is doing to these people amounts to ongoing torture.
The United States has so far taken a few hundred refugees from Manus Island and Nauru, but even if it does eventually resettle the 1,250 refugees that President Trump has begrudgingly agreed on—and that is still a big 'if'—that still leaves hundreds more behind. Where do they go? Unfortunately, their fate is to keep mouldering in offshore detention, because there is no plan B. Their ongoing suffering, their rates of suicide and self-harm, their lack of hope and their disintegrating mental states are preferable, in this government's mind, to any other option put before them. Even New Zealand's generous offer to take an extra 150 asylum seekers was knocked back. Apparently it is better to keep these 150 people in arbitrary detention than risk any softening of its position.
Professor Jane McAdam, who heads up the University of New South Wales's Kaldor Centre for International Refugee Law, wrote the following late last year about the situation on Manus, and it says everything:
The Australian Immigration Minister boasts that no one has died at sea on his watch, but he has masterminded policies that have broken the lives and spirits of hundreds of people who are instead dying a slow death on land—as some have described it. Their experience is marked by physical insecurity, ill-health, trauma and mental illness, as well as separation from wives and children whom they are told can never reunite with them. This is not only inhumane, but contrary to international law—obligations that Australia has voluntarily accepted. These men are stuck in limbo, even though the majority have been recognised as refugees in need of protection. It is the same for the men, women and children held on Nauru.
The Kaldor Centre exists because of the generosity of its benefactors, philanthropists Andrew and Renata Kaldor, who themselves came to Australia as refugees. In a Sydney Morning Herald interview about the opening of the centre in 2013, Mr Kaldor said the attitude that greeted his family in postwar Australia was 'a welcoming one and an accepting one'. He further said that Australians back then acknowledged that refugees:
… were making a contribution to society. They were not a burden. Today, these people are seen as threats and a cost to society.
What's changed? Not the refugees, who are as desperate for a new life and new opportunity as they've ever been. It is the government rhetoric that has changed.
Ever since Australia tried to reject the asylum seekers rescued by the MV Tampa in 2001 and the 'children overboard affair' in which no children were actually thrown overboard, asylum seekers have been painted as the bad guys. Australians have been encouraged not to feel any sympathy for them because they are queue-jumpers, because they are illegals and because terrorists might sneak in amongst their ranks. The worst is when self-satisfied departmental and governmental officials accuse asylum seekers of self-harming for publicity or because a refugee advocate told them to. It's a disgusting attitude. To me, that says a lot about how much they have distanced themselves from the very real and human impact of Australia's border protection policies.
The government is quite content for Australians to feel suspicious and even fearful towards asylum seekers because it then means the public might not care too much about how these people are ultimately treated. This feeds a perfect loop. Authorities can push increasingly draconian policies, and uncritical supporters can feel justified in applauding something that once they may not have tolerated. On top of this, the government minimises the reality of how asylum seekers are treated by talking about offshore processing. It makes it sound as though claims for protection are being dealt with efficiently and cleanly. Far from it. In reality, there are genuine refugees who have been trapped in offshore camps on Manus and Nauru for up to five years. Many of them have been further traumatised by their indefinite and arbitrary confinement and by living conditions and inadequate health care which would simply be found by all of us here to be unacceptable.
Since Australia dumped its White Australia policy, you would think that we would only progress steadily in the right direction, but we are, instead, sliding backwards. It is the people smugglers who deserve our contempt, not the asylum seekers being demonised as queue-jumpers. Recent governments have thrown around terms like 'illegal arrivals' and 'queue-jumpers' because it is dog whistling at its finest. It appeals to the Australian public's sense of fairness. God knows Australians hate it when people jump a queue! But, as I said earlier, there is no queue. What does that term even mean? Are they less deserving of protection? Are their claims less valid? Are they any less desperate than those who sit in refugee camps?
This government always sounds as though it has forgotten it is dealing with fellow humans when it speaks about asylum seekers, or what the department now terms 'unauthorised maritime arrivals'. It is my hope that, despite this, Australians remember their humanity when they listen to the government's rhetoric on asylum seekers. We should all remember that it is only due to the fortunate circumstances of our birth that we enjoy the rights and privileges Australia has to offer. We are blessed to have been born into a peaceful, democratic and stable society. As a people, we have not had to fight oppressive governments and military regimes. We are not starved of our basic human rights. Our homes are not shelled, our children do not live in terror, our wives, sisters and daughters sleep safely at night, and our men are not routinely rounded up and buried in mass graves. We can protest and express our political beliefs without being jailed or killed. We are truly the lucky country. Is it any wonder that people take desperate actions to flee the terrors of oppression and civil strife of their homelands and try to make their way here? They deserve sympathy and understanding, not the further trauma that Australia has imposed on them in offshore detention.
There is a lot we can do to improve their plight. The most urgent would be to listen to doctors and act immediately on medical transfer requests. Even when patients, including newborn babies, have been classed as 'at risk of dying', it still takes an average of four days to get them to Australia for urgent treatment—four days! Right now we have a crazy situation where it requires a court order or the threat of a court order before any medical transfers are permitted from Nauru. Thirty-five children have so far been brought to Australia this way. Personally, I think the best thing we could do would be to get children and the families off Nauru immediately and resettle them either here or in another stable, prosperous and democratic nation.
In the meantime, one other small yet profound change can make a big difference. We need to change our rhetoric. Words matter. Words hurt and words change perceptions. We must, as a nation, be kinder in how we speak about asylum seekers, and that must be led by government. Maybe that too is a vain hope, but, generally, I'm an optimistic guy.
I rise to speak to this motion. This motion asks the Senate to express our loyalty to our most gracious sovereign. As a passionate advocate for Australia becoming a republic, that section of the motion gives me pause for thought. It is the same pause I had when, on entering this chamber, I was required to swear an oath of allegiance to Her Majesty Queen Elizabeth II and her heirs and successors according to law. I accept that this motion follows well-established convention and, as such, will not be moving an amendment or opposing it. I will, however, take this opportunity to reflect on the disappointment I feel that in 2018 we do not make these statements to an Australian head of state.
As I noted in my first speech, it is ironic and telling that to be a member of this chamber you cannot hold British citizenship but you must be British to be our head of state. Why should we have lower standards for our head of state than we set for our parliamentarians? For me, a homegrown, Australian head of state is essential in a nation which defines itself as self-determining. It is the logical next step for us to take as a proud and independent nation. Our head of state should be a patriotic, democratic person who embodies service to our country and its people. Our head of state should be an Australian chosen by Australians, not a foreign monarch who inherits the job. It is fundamentally unfair, undemocratic and undignified for Australia's democracy to be subject to a foreign monarchy. I also believe it is an important step towards more meaningful reconciliation with our First Nations people. I have been actively involved in advocating an Australian republic for over a quarter of a century.
A highlight of my life, amongst others, was organising a republican referendum lunch, with speakers being former Prime Minister Whitlam and now former Prime Minister Turnbull. As we round on the 20-year anniversary of the 1999 referendum, it is time to once again put this important question to the Australian people. I believe, as does the Australian Republic Movement, that in 2020 Australians should be asked two simple questions in a national vote: 'Do you want Australia to have an Australian as our head of state?' and 'How do you want Australia's head of state to be chosen?' With these two questions answered, a referendum question should be prepared and put to the people in 2022. This would be a referendum to change our politics, to modernise our Constitution and to remove alien traditions of heredity and prejudice. It would be a vote to have an Australian as our head of state and to become an Australian republic. I hope in the future these replies made today will be made to an Australian head of state.
Question agreed to.