Senate debates

Wednesday, 24 July 2019


Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019; Second Reading

6:07 pm

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Finance, Charities and Electoral Matters) Share this | | Hansard source

I move:

That these bills be now read a second time.

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

Leave granted.

The speeches read as follows—


The Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 is an important addition to the Government's efforts to further strengthen Australia's national security laws and counter-terrorism framework.

Keeping Australian communities safe from those who seek to do us harm is, and will continue to be, the Australian Government's number one priority. This Bill supports the Government's commitment to keeping Australians safe. The Bill introduced a Temporary Exclusion Order (TEO) scheme to delay Australians of counter-terrorism interest from re-entering Australia, until appropriate protections are in place.

Since 2012, around 230 Australians have travelled to Syria or Iraq to fight with or support extremist groups involved in conflict. Around 80 are still active in conflict zones.

The advice of Australia's National Security Agencies is that many Australians of counter-terrorism concern, who travelled to Iraq and Syria to engage in that conflict, are likely to seek to return to Australia in the very near future. This Bill will ensure that law enforcement agencies can effectively manage these returns in a way which will reduce the threat to the Australian community.

There will be two components to the TEO scheme.

First, an Australian of national security concern who is overseas may be subject to a TEO prohibiting them from returning to Australia for up to two years. The Bill does not permanently prohibit entry into Australia, and a person will be entitled to a return permit if they apply.

A Temporary Exclusion Order could be made where the Minister suspects, on reasonable grounds, that the order would substantially assist in preventing terrorism-related activities. A Temporary Exclusion Order could also be made by the Minister where ASIO assesses the person to be a risk to security for reasons related to politically motivated violence.

The Bill establishes a framework for a reviewing authority to provide independent oversight of the Minister's decision to make a TEO before it comes into force.

An exception to this review process is provided for in the Bill to address urgent circumstances. In such cases, the TEO would come into force immediately pending review, which must be undertaken as soon as reasonably practicable.

The reviewing authority will be appointed by the Attorney-General. Former judges or serving senior Administrative Appeals Tribunal members may be appointed to the role.

If the reviewing authority determines that the Minister's decision was not lawful, the TEO is taken to have never been made. All TEOs will be subject to review, and the reviewing authority will have access to all the information that was before the Minister, except to the extent that the disclosure of such information is not in the public interest. This will protect sensitive sources and capabilities. It will, however, be open to the reviewing authority to overturn the decision to make a TEO if insufficient information to support the making of the exclusion order is provided.

Review of the Minister's decision is based on Australian administrative law principles relating to the legality of the decision. This is similar to the United Kingdom's TEO scheme. Judicial review will also be available through the Federal Court or High Court.

A TEO would not be able to be made against a person who is younger than 14 years of age, and for persons aged between 14 and 17, it will be a requirement for the Minister to have regard to the best interests of the minor as a primary consideration.

The second component of the TEO scheme - a return permit - will mitigate risks to the community following the return to Australia of persons who were subject to a TEO.

The Bill specifies the Minister must issue a return permit within a reasonable period, if a person applies, or if a person is being deported or extradited to Australia.

The Bill also provides that a return permit may specify conditions which the person must comply with once in Australia. The conditions would be tailored to the individual, with the intention of assisting law enforcement and security agencies to appropriately manage their risk to the Australian community.

Conditions that may be imposed include requirements that the person surrenders their Australian passport, or that they notify authorities if they change their residential address.

Conditions would only be imposed where considered necessary for the purpose of preventing terrorism-related activities.

The Bill was first introduced into Parliament on 21 February 2019, and referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry.

The Government has reviewed the Committee's report from this inquiry, and has substantially incorporated the Committee's recommendations into the Bill I introduce today. I thank the Committee for its work.

In conclusion, this Bill addresses the significant risks which Australia faces from returning foreign fighters.

It is essential that Australian authorities have the capacity to manage the risks of persons returning to Australia from foreign conflict zones.

The Temporary Exclusion Order scheme being introduced under this Bill is based on a scheme which has been successfully operating in the United Kingdom. It is targeted and specific to individuals who are a national security risk to the community. Moreover, it is a proportional response to the threats we face, while ensuring appropriate safeguards and accountability.

The Government has been clear that our policy is to deal with foreign terrorist fighters as far from our shores as possible.

The Bill will ensure that if an Australian of counter-terrorism concern does return to Australia, it is with adequate forewarning and into the waiting hands of authorities.

I commend the Bill to the Senate.


I am pleased to introduce the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019. These measures are consequential to the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, which will provide greater control over returning Australians of counter-terrorism interest, including foreign fighters.

The Bill will introduce additional accountability and transparency measures in the Temporary Exclusion Orders scheme (TEO scheme). These measures implement recommendations made by the Parliamentary Joint Committee on Intelligence and Security in its review of the TEO scheme.

First, the Bill will amend the Intelligence Services Act 2001 to provide that it is a function of the Committee to monitor and review the exercise of powers under the TEO scheme. The Committee is also required to review, by three years after the date of commencement, the operation and effectiveness of the TEO scheme.

Second, the Bill amends the Independent National Security Legislation Monitor Act 2010 to enable the Independent National Security Legislation Monitor to review the operation, effectiveness, and implications of the TEO scheme on his or her own initiative.

Photo of Kristina KeneallyKristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | | Hansard source

I rise to speak on the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019. I say from the outset that Labor has always, always supported the intent of the temporary exclusion orders scheme. This is an appropriate scheme to manage and control the return of Australian citizens who have gone overseas and may have fought as foreign fighters.

Successfully managing the return of foreign fighters is critical to ensure the safety and security of the Australian community. It was an issue that we, as developed, democratic nations, were always going to be faced with, particularly as the so-called caliphate collapsed. No country can pretend that the problem of foreign fighters does not exist. Each country must accept responsibility for their citizens, and the complexities associated with such a task is what this legislation seeks to address. This counter-terrorism bill introduces a temporary exclusion orders scheme which would enable authorities to delay and control the return and re-entry of Australians of counter-terrorism interest into Australia until appropriate protections are in place, and enable the Minister for Home Affairs to impose conditions on such individuals once they have returned to Australia, to manage the risk that they may pose—for example, reporting requirements. Again, Labor has always supported the intent of this scheme and we have always sought to see a scheme implemented as this legislation intends.

The Morrison government first announced they would create a temporary exclusion orders scheme on 22 November 2018. Some three months later, the Minister for Home Affairs introduced legislation into the last parliament on 21 February 2019.

The government then agreed to refer the legislation to the bipartisan Parliamentary Joint Committee on Intelligence and Security, commonly known as the PJCIS. The government agreed to refer this bill to the PJCIS, knowing full well that it would be making recommendations on ways to amend their own legislation. This is an important point: people can often assume that legislation, particularly national security legislation, automatically gets referred to committees. But more often than not—and as is always the case with the PJCIS—the government must agree both to the legislation being referred and to the time line in which the inquiry takes place.

I note that the government, just today, has been debating legislation in the other place to repeal medevac. At the same time, they have agreed to an inquiry into the medevac bill. That inquiry does not report until October. The laws to repeal medevac won't be able to be debated in this chamber until November at the earliest. I make this point to illustrate that this is how parliament operates: to interrogate laws and scrutinise them; to make recommendations; and, ultimately, to amend legislation to improve it.

This is particularly the case with the bipartisan PJCIS. It has operated in some fashion like this since 1986, to ensure that Australia's national security laws are fit for purpose, robust and legal and constitutionally valid. Most importantly, today the Liberal-dominated committee, chaired by Liberal MP Andrew Hastie, works to ensure that our national security laws work. The bipartisan PJCIS made 18 substantive recommendations to the temporary exclusion orders legislation. I will come to these recommendations and the government's response shortly. But firstly I would like to address the need for the temporary exclusion order scheme.

In early May, the US Secretary of State, Mike Pompeo, said that the United States had an expectation:

… that every country will work to take back their foreign fighters and continue to hold those foreign fighters, …

Despite what some would say have been many years of warning signs that the thousands of foreign fighters would need to return home at some stage, Mr Pompeo made this plea after too few countries had the right plans in place. He went on to say that it was 'essential' for every country to do its part. Unfortunately, this process of repatriation and serving justice will not be easy for Australia or other like-minded countries. This is especially the case when we consider determining who exactly is a foreign fighter and what the crimes are that they have committed.

Those who took up arms on the front line in Syria and Iraq may be easily classified, but a successful prosecution relies on sound evidence. And what do we make of the women and children who either went overseas voluntarily or were taken against their will into the so-called caliphate? Where do we draw the line between fighter and victim? And can they be both? It's important to note that children under the age of 14 make up a significant portion of the 80 Australians the government says are overseas in conflict zones. These 80 people are people that the government says TEOs could be applied to. We also know that other children, outside this group of 80, have been taken there or were born overseas to Australians.

The government needs to be clear to whom and to how many people these TEOs could apply. Today on Sky News, the Minister for Home Affairs refused to answer how many people the scheme could apply to, and he refused to answer how many Australian children are counted in the figures we've seen reported of people who are overseas. From the reports I have seen, there are large numbers of Australian children and women overseas, and a small, defined and known number of males. I would expect—and I trust—that our national security and intelligence organisations know who these people are and, largely, where they are. Whatever the numbers may be, Labor's view is that national security legislation must be carefully crafted and constitutionally valid. We need a temporary exclusion order scheme that works, otherwise there is no point in having such a scheme.

The United Kingdom introduced their temporary exclusion order scheme in 2015, some four years ago. Given that the Minister for Home Affairs here so frequently refers to the United Kingdom scheme as the model for the government's legislation, if it were not so serious it would be amusing that it has taken him four years to do this work and bring these laws before the parliament. On Monday, the Leader of the Government in the Senate, Senator Cormann, said that the government was, 'Working through national security legislation as quickly as possible.' According to the government, four years is what they classify as working as quickly as possible when it comes to responding to the need to safely receive foreign fighters back into Australia. With the United Kingdom government having their own TEO scheme in place for four years already, countless warning that foreign fighters would start to make their way home, it beggars belief that the Minister for Home Affairs did not introduce his temporary exclusion order legislation until February this year.

Indeed, we have seen media reports that some 40 foreign fighters have already returned to Australia in the four years' time that it has taken the government to introduce these laws into the parliament. We have also seen reports that of the 40 supposed jihadis that have returned, many of them may have gone over to be part of the Arab Spring, again an area in which the government has failed to provide clarity. But it does need to be asked: was it incompetence or apathy towards the risk of foreign fighters by the Minister for Home Affairs that saw him do nothing for four years to bring these laws before the parliament?

The government's model before the parliament is significantly different from the UK TEO scheme to which Minister Dutton does so frequently refer. For example, in the United Kingdom, a TEO can only be issued if the court gives the Home Secretary permission to do so, whereas the government's proposed temporary exclusion order model that was introduced in February would have meant the Minister for Home Affairs could simply issue a temporary exclusion order without any judicial oversight whatsoever. Given the Minister for Home Affairs' track record at crying wolf and bending the truth, if there's one minister who requires oversight, it is the current Minister for Home Affairs.

The government's own response to the Parliamentary Joint Committee on Intelligence and Security report shows that of the 18 recommendations made by that bipartisan committee, chaired by Andrew Hastie, the Liberal member in the other place, this government has implemented only 16 recommendations. I don't agree with that characterisation of their response and I will come back to that, but, by the government's own standards, they have failed to implement two of the bipartisan committee's recommendations. Yesterday the chair of the PJCIS, Mr Hastie, voted against his own recommendations in the other place. He said he was satisfied with the government's response. I asked: if that were the case, why did he, along with his Liberal colleagues on this Liberal-dominated committee, make their recommendations in the first place? The member for Berowra said the Parliamentary Joint Committee on Intelligence and Security is like every other parliamentary committee in this place, a committee. Well, that is not the complete truth. Since 2013, the government has not explicitly rejected a recommendation of the PJCIS. And it is not like every other committee; it is set up by its own legislation. This committee has always sought to improve and better the national security legislation in this country.

While the government will have you believe they have implemented 16 of the 18 recommendations of the PJCIS, this is not the case. Instead of agreeing to and implementing all 18 of the PJCIS's substantive recommendations, the government has in fact rejected four recommendations, only partially implemented six recommendations and ignored one recommendation—that is, to produce Solicitor-General's advice that shows that this bill is constitutionally valid. It is not clear if the government has implemented recommendation 18 of the PJCIS, advice from the Solicitor-General on the final version of the bill—that is, the government has indicated that it has obtained advice but it is not clear whether the Solicitor-General has provided advice in respect to the final form of this bill. For all we know, the government's advice from the Solicitor-General could be from the February version of the bill; for all we know, the advice that they have could say that this bill is unconstitutional. Why is it always the case with this government and the Minister for Home Affairs that they run from transparency and revel in secrecy? I say to the government: if you have advice from the Solicitor-General in relation to this bill, release it.

The claims that releasing such advice would be unprecedented are false. The government have done so with Home Affairs legislation previously. They have done so even in relation to the Minister for Home Affairs and his eligibility to sit in this parliament. The government should release the Solicitor-General's advice to assure all Australians of this bill's constitutionality.

The day this bill was reintroduced, 4 July, Australia woke up to newspaper headlines in The Australian which read 'Security bills test Albanese's mettle'. Since then I've heard constant claims from those opposite, as well as in the media, that this bill is a test for Labor. News flash: Labor is not the government. The test for legislation should be the national interest. Disappointed as I am that Labor did not win the election, that is the reality of the situation we are in. This is a test for the government to introduce legislation that serves the national interest, that is constitutionally valid and that works. That is how this place operates. As the opposition, we are here to hold the government to account and to scrutinise legislation. This is exactly what Labor did through the Parliamentary Joint Committee on Intelligence and Security. The scrutiny should be focused on the government because it is the government that sets the legislative agenda, drafts legislation and then attempts to pass it through the parliament.

In fact this bill was a national security test in actuality for the Minister for Home Affairs. He has clearly failed by choosing to break the bipartisan compact of the PJCIS. By doing this, the home affairs minister, the Prime Minister and the government are allowing a dangerous precedent to be set. The fact is that the revised TEO legislation that is now before the Senate is substantially different from the legislation introduced in February, substantially different to the recommendations made by the PJCIS and substantially different from the UK scheme to which Mr Dutton so frequently refers. This should give us pause to ask, will Mr Dutton's current version of the TEO laws actually keep Australians safe? Will they stand up to constitutional challenge and will they achieve the aims they are promising? These are questions the Minister for Home Affairs has yet to answer. This is why Labor has asked the government to refer the TEO legislation back to the PJCIS for further consideration. This request has so far fallen on deaf ears.

I note that I'm not alone in my reservations about how the Minister for Home Affairs is handling temporary exclusion orders. National security experts from the Australian Strategic Policy Institute, the Lowy Institute, the Executive Council of Australian Jewry and the Law Council have all raised concerns. John Coyne from ASPI wrote recently:

There's also no guarantee that the terror threat posed by a foreign fighter is mitigated by excluding them from returning to Australia … An Australian citizen excluded from returning to Australia under the proposed legislation may still represent a threat to Australians and Australian interests offshore.

The concerns that Mr Coyne has expressed lie in the government's overall strategy for minimising the risk of radicalised Australians who are overseas. The TEO scheme is a single piece of legislation, but it is not in itself a panacea. Temporary exclusion orders should not be an excuse to outsource Australia's global responsibilities or to pass the buck when it comes to bringing foreign fighters home and bringing them to justice. The clue is in the title: 'temporary'. However, Mr Dutton, the Minister for Home Affairs, is yet to explain exactly how Australia will ensure foreign fighters subject to TEOs aren't left to wander the globe indefinitely with the risk of becoming more radicalised and even radicalising others before they return to Australia. Regrettably, we have seen the atrocities such foreign fighters have been able to inflict on innocent lives too many times.

These things are essential as we consider the TEO legislation, because temporary exclusion orders are too important for the home affairs minister or the government to get wrong. As Labor has always stated, we support the intent of a temporary exclusion order scheme and, I should note, the return permit scheme that is part of this legislation. It would see those Australian foreign fighters returned to Australia in a manner prescribed by the minister and the government in order to ensure that Australians and the Australian community is kept safe.

It is my most deep disappointment that the government, and in particular the Minister for Home Affairs, has broken the bipartisan compact we've shared for so long when it comes to the Parliamentary Joint Committee on Intelligence and Security. I'm also disappointed that the government has chosen not to refer this legislation back to the PJCIS. We could have resolved these issues swiftly to ensure that this legislation was sound.

Labor has endeavoured to work with the government to ensure Australia has a TEO scheme that works, is constitutional, keeps Australians safe and withstands High Court challenges. In the Committee of the Whole stage, I will be moving amendments on behalf of Labor to wholly implement the recommendations of the bipartisan PJCIS, those recommendations the government has chosen to reject in whole or in part. I hope that, in doing so, Senators Abetz, Fawcett and Stoker, all of whom signed off on those recommendations—put their name to them and handed them over to the Minister for Home Affairs—will in fact support those recommendations and amendments. If they do not, I hope it does not signal the grave breakdown and demise of the bipartisan PJCIS and the important work that it has always undertaken.

6:25 pm

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

The Counter-Terrorism (Temporary Exclusion Orders) Bill will introduce two new orders that can be made by the Minister for Home Affairs: firstly, a temporary exclusion order, a TEO, which may prevent an Australian citizen aged 14 years or older—I'll pause there and remind everyone we're talking about children being captured within the scope of this bill—who is overseas from returning to Australia for up to two years at a time and, secondly, a return permit under which the minister may impose conditions on the person's entry into Australia, including conditions with which the person must comply for up to 12 months after re-entering our country.

I'm going to be very clear about this. This bill is a fundamental undermining of the rule of law in this country. This legislation, if successful, will set Minister Peter Dutton up as judge and jury, and it will continue the slow zombie shuffle that the bipartisanship on national security undergoing, meaning that Australia is on the road to becoming a police and surveillance state. This bill will be strongly opposed by the Australian Greens. As doctors Ananian-Welsh, Blackbourn and McGarrity of the universities of Queensland, Oxford and New South Wales respectively have cautioned, this bill will have a significant impact on the fundamental human rights of Australian citizens recognised by international law. These rights include the right of abode, the right to family, the right to liberty, the right to security of the person, the right to a fair trial and the right to freedom of association and movement. If that list of fundamental human rights, which actually underpins our way of life in this country, soon to be compromised by this legislation is not enough to make this parliament whoa up and have another think about the path we're on, I don't know what will.

This bill provides that a TEO can be made for a period of up to two years. By the way, a TEO can be made without the person who will be impacted finding out about it at all. This is a massive denial of procedural fairness. The subject of a TEO must be made aware of the order by the minister as soon as, in the minister's opinion, is reasonable and practicable. But on what is reasonable and practicable in the opinion of a minister, particularly the current minister, Mr Dutton, the bill provides no guidance whatsoever. Of course, the penalty for entering Australia if a TEO is in forced is up to two years imprisonment. So you can get chucked in the slammer in this country for trying to re-enter even if the government hasn't bothered to tell you there's a TEO that applies to you in the first place.

We've just listened to a first speech from a Liberal senator which talked about the philosophical underpinnings of the Liberal Party being freedom of the individual. Less than an hour later the government is bringing in legislation to this parliament that undermines the freedom of the individual in this country.

Senator Seselja interjecting

I missed that interjection, but, if Senator Seselja would like to repeat it, I'm happy to respond. No. This fundamentally erodes the freedom of the individual in this country and fundamentally erodes and undermines the rule of law in Australia. This is a sad, sad day for the country, and it continues to build on the over 200 pieces of legislation that have passed through the state, territory and Commonwealth parliaments in the last two decades that erode the fundamental rights, freedoms and liberties of people in this country. These are the liberties we used to send Australians overseas, including my family members, to fight to defend, and now we're giving them away, hand over fist, because of the bipartisanship on national security and a government that wants to sleepwalk this country down the road to a totalitarian state. What a disgraceful day this is for the country!

So, a 14-year-old Australian citizen in a conflict zone overseas could be issued with a TEO but not know because, for example, they weren't able to access their emails. This 14-year-old then tries to return home, perhaps even to escape radical and extremist influences where they are overseas and, wham, they're imprisoned for up to two years. It's unbelievable that we have arrived at this place.

Senator Hanson interjecting

And I'm not taking interjections from a racist like Senator Hanson. Under this bill, the minister is not even required to consider whether the subject of a TEO is a citizen, has residency or—

Photo of Mehreen FaruqiMehreen Faruqi (NSW, Australian Greens) Share this | | Hansard source

Senator Hanson, on a point of order?

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I want that remark made by Senator McKim withdrawn.

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

I can assist the chair; I withdraw the remark.

Photo of Mehreen FaruqiMehreen Faruqi (NSW, Australian Greens) Share this | | Hansard source

Thank you, Senator Hanson. Thank you, Senator McKim.

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

Under this bill, the minister is not even required to consider whether the subject of a TEO is a citizen, has residency or whether they are eligible for citizenship or residency in another country. But, if an Australian citizen who would be subject to a TEO is being deported to Australia, the minister must give that person a return permit which will allow them to return, but pre-entry and post-entry conditions can be attached to the permit. These conditions do not need to be individually justified by the minister, and noncompliance with the condition, whether justifiable or not, can also result in two years imprisonment.

Potential post-entry conditions are many and varied and may require the returnee to notify a specified person or body about their whereabouts, activities, employment and use of technology. These conditions can also be coupled with a control order that prohibits certain movements, associations and technologies. It's important to note that such restrictions to basic freedoms could socially exclude a returnee from family, from friends, from social support networks and, if applied arbitrarily or irresponsibly—which is certainly odds on under the current minister—could seriously impede the returnee's capacity to reintegrate with society and, potentially, deradicalise.

One of the pre-entry conditions that can be attached to a return permit—a permit which, by the way, can be revoked by the minister at any time—is that the Australian citizen must not return to Australia within 12 months of the return permit being issued. Both the power to exclude a person from returning or re-entering their home country for two years under a TEO and the power to prevent someone from re-entering their country for 12 months under a return permit appear to contravene article 12.4 of the International Covenant on Civil and Political Rights, the ICCPR, which Australia has ratified—and I quote from that section:

… No one shall be arbitrarily deprived of the right to enter his own country.

So here we are, once again, as we've done with our offshore detention regime, as we've done so often with legislation passed in the name of national security, abandoning the commitments that we've made in signing up to very significant international covenants and agreements.

Worse yet, despite the bill's statement of compatibility with human rights claiming that TEOs will not permanently exclude the subject of a TEO from entering Australia, there is absolutely nothing in this bill that will prevent the minister from issuing an indefinite series of TEOs against Australian citizens. In other words, they can issue a TEO for two years and then, on its expiry, they can simply issue another one for two years and another two years and another two years and another two years, ad infinitum—a lifetime ban on coming back to your own country.

I have to say, having returned from Manus Island only a few days ago, that, sadly, I'm all too familiar with Minister Dutton's predilection for arbitrary and indefinite imprisonment and sentences. Given that these orders can apply to a 14-year-old—a 14-year-old child!—I reckon I'm on pretty safe ground to suggest that these powers contravene article 31 of the UN Convention on the Rights of the Child, which Australia has also ratified. This international obligation is supported by a 1995 High Court judgement that found, 'The interests of the child must be given either the greatest weight or equal greatest weight with other considerations.' This bill patently fails to meet that test. I ask the Senate a question: how can legislation that bars an Australian child—a 14-year-old Australian child—from re-entering his or her own country, away from radical and extremist ideologies, back into a place where we can offer them supports and we can offer them the assistance they need to deradicalise, be in the best interests of the child?

It's one thing to contravene international agreements—this government does it all the time, and it makes their culpability worse by denying that they are doing it while in fact they are—but it is another thing to flagrantly disregard the Australian Constitution. The Law Society of New South Wales has expressed deep concern that this bill, if on its true construction it authorises the executive to impose punishment for criminal conduct, will collide with Chapter III of the Constitution. The New South Wales Law Society goes on to quote a finding of the Full Court of the Federal Court of Australia: 'It is a fundamental principle of the Australian Constitution, flowing from Chapter III, that the adjudication and punishment of criminal guilt for offences against the law of the Commonwealth is exclusively within the province of courts exercising the judicial power of the Commonwealth.' It says 'courts', not 'the minister'.

But this government either can't or won't understand the need for the separation of powers in this country. They don't understand the separation of church and state, so why would we assume they have any concern for the doctrine of the separation of powers? And the minister needs little more than suspicion to justify to this legislation's satisfaction placing these orders and penalties on Australian citizens. If you want to contest the minister's suspicions, well, you won't be able to. So much for the burden of proof, a cardinal principle of our system of justice.

This bill, as I said, undermines the rule of law. It does away with common law principles and it does away with procedural fairness. On procedure fairness, it denies people who are subject to an order or permit opportunities to dispute or test the evidence against them. No minister, particularly the minister we have now, should be allowed to set themselves up as judge and jury, but that's what this legislation does. On the exclusion of procedural fairness, I know that clause 26 provides explicitly:

The Minister is not required to observe any requirements of procedural fairness in exercising a power or performing a function under this Act.

'Not required to observe any requirements of procedural fairness'—that's what Australia has come to today.

This bill is another sorry and frightening example of government legislation, cheered on by the so-called opposition, showing why we need a charter of rights in this country. We are the only liberal democracy in the world that does not have some form of constitutionally enshrined or legislatively enshrined charter or bill of rights, and that is something the Australians Greens will continue to fight for. As the Immigration Advice and Rights Centre warned, this bill will undermine the value of holding Australian citizenship and create a second class of citizen with fewer rights and protections. One of the most fundamental rights that we all have in this place is our Australian citizenship. As citizens, the principle ought to be: we are all treated equally under the law. This bill walks away from that principle.

If people have committed a crime overseas, there is abundant legislation currently on the statute books to charge people in Australia with the crime for fighting with terrorist organisations overseas. They should be brought to this country, they should be charged and, if found guilty by our independent judicial system, they should be sentenced appropriately. That is the way that we make the world safer. We shouldn't be washing our hands of our people who make the terrible decision to go overseas and engage in these activities. We should not be washing our hands of responsibility for them, but the principle behind this bill is that we're just happy to leave them over there to keep causing trouble. What sort of international citizens are we becoming? We should take responsibility for the actions of our people. We should bring them here, into this country, and if they've done something wrong or unlawful, they should face the full weight of the law, like all the rest of us would in that situation. But, no, the major parties are colluding to wash their hands of these troubles.

Several stakeholders have questioned why this bill is even needed, given it doesn't appear to cover anything not already captured by existing counterterrorism powers. Now they are right about that, but I want to point out this: this bill creates replica powers free of accountability, free of rigour and unencumbered by the rule of law. This is draconian legislation, and I want to ask members of the Australian Labor Party: what would it take for you to actually stand up and oppose the government on a matter of national security? How bad would things actually need to get before the Labor Party discovered, or rediscovered, its spine? What would actually constitute a step too far for the Australian Labor Party? How many rights would have to be curtailed before the Labor Party awake from the stupor that they have found themselves in on these issues for nearly two decades? And when will the Labor Party stop kowtowing to this bullying government, or, worse still, trying to outflank this government from the right?

The people of Australia actually can no longer rely on the Labor Party to stand up for their rights. They want the Australian Labor Party to do more than what they're doing on this bill, which is to point out all the flaws in it and to then vote with the government to pass it. We're in a climate emergency; economic inequality is rampant. There are full-blown authoritarians holding government office in this country, and on all of these issues the ALP has abandoned the field. When the people of Australia need someone to fight for their rights in this place, they can turn to the Australian Greens. We will do the job of an opposition, even if the Labor Party has vacated the field. All the evidence, since the election, has shown that the Greens are going to have to stand up and fight for our rights in this country, and do it without the Labor Party. So be it. So we will. We'll fight for human rights. We'll fight for civil rights. We'll fight for the rights of children. We'll fight for the freedoms and the liberties that our country, in its recent history, has fought for in wars. We'll fight to protect our climate. We'll stand with the Australian people in their fight for justice and a fair go. This is a shocking piece of legislation. It undermines the rule of law. It sets Minister Dutton up as judge and jury. And it's been delivered by this beloved-of-the-major-parties bipartisanship on national security. The collusion that occurs between the major parties on national security issues behind the closed doors of the Joint Standing Committee on Intelligence and Security is marching this country down the road to becoming a police state. We the Greens will call this out in every single time it happens because we are losing our rights and our freedoms as people, and the major parties are colluding to continue down that extremely dangerous path.

I don't want to live in a police state. I don't want to live in a surveillance state. I cherish my rights and freedoms too much to go quietly down that path, while the major parties in this place stitch up these laws behind the closed doors of the Joint Standing Committee on Intelligence and Security. That committee needs reform. That committee needs crossbench voices, that committee needs the disinfectant of sunlight, and we have to break the bipartisanship on national security that has been and tragically, I predict, will continue to be so damaging for rights and freedoms in this country.

6:46 pm

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

Well, I don't know. I'm just about to be sick after what I have just heard delivered in this place, talking about people's freedoms when there are many Australians in this country who still don't have the freedom to walk safely because of the ideologies of people who have no regard for the Australian people and who wish harm on us, which has happened. There are some of us in this place who take the safety of Australian citizens seriously and then there are those who clearly don't. Those of you who dread the thought of a toxic, violent and lethal ideology returning to Australia will join with me in supporting this temporary exclusion order bill today, a law that is also in the UK—it may not be the same but it was brought into the UK as well because they knew what was happening in their country.

I don't think enough consideration goes into the work that it takes or the money it costs taxpayers to monitor between 400 and 500 Islamic extremists who have somehow been given the freedom and right to live in a peaceful nation like Australia. So it deeply concerns me to think that, under the current legislation, we are fuelling a fight by allowing some of the 230 people who left Australia to fight for terrorist groups back into this country. There are 230 left. Are they all Australians? Were they born here? I don't know. Do they have dual citizenship? Again, I don't know. Did they migrate out here to make Australia their home and are they wishing to fight against the values and principles of Western societies and destroy another country?

I know they are against Western values and I know that they are hateful towards our culture and our way of life. One hundred of those have actually been killed. I'm glad to see the end of them. Eighty want to come back to Australia—hence the bill. And if you allow that 80 back in then their wives, their kids will be allowed in as well. What are their thoughts? What are their beliefs? Are they the same as their husband's? Then we have more problems on our hands. It concerns not only me but also federal and state police and the Australian Security Intelligence Organisation as well.

We are talking about the types of scumbags like Khaled Sharrouf. I want senators to imagine a dysfunctional character like Khaled Sharrouf, who left Australia in 2013 to fight for Isis, back in Australia. He was the guy who held up the severed and bloodied heads of Syrian soldiers and who made his young sons do the same. Senator McKim may talk about 14-year-olds; these kids were younger than 14. If you understand Islamic terrorists, they train them, they radicalise them and that's why they get them young. These are the types who want to come back to Australia. These are the people whose rights the Greens and Labor have defended. All I can say is thank God we killed him and his horrible terrorist sons in 2017. If ISIS weren't broadly defeated in Syria and other parts of the Middle East, these people wouldn't be fleeing. They'd be expanding their terrorist network into other countries.

I went to a function in Sydney just a couple of weeks ago. I had no idea who the Chaldeans were. They come from Syria and Iran. They are basically a Christian group of people going back hundreds and hundreds of years. Ask them what's happened to their countries. Ask them what's happened to the women and children. Their homes have gone—absolute destruction—because of ISIS. They have been given an opportunity to live in Australia that they are so grateful for. But the pain is still there. Who is doing anything about it? Do we ask those people if they want these men back in Australia, these fighters of ISIS? I'm sure they would say, resoundingly, no. I believe millions of Australians don't want them back in this country.

Instead, the surviving cowards of ISIS are happy to return to Australia and spread their hateful ideology here. I believe the majority of Australians don't have any sympathy for these terrorist fighters and want them kept out. That's been quite evident in listening to talkback radio and as I travel around the country talking to other Australians. If I had my way they'd never be allowed back into Australia at all. But, apparently, that's not constitutional. That's why the temporary ban is for two years, notwithstanding a further two years if necessary.

Labor have never been tough on border security, and they were sent a very clear message at the recent federal election about their inability to take a strong stance on terrorism and illegal border arrivals. I trust that senators of the Labor Party will heed the warning of Australian voters and support this bill in the Senate. As for the Greens—well, we've heard their reply from Senator McKim. Their policy on open borders and allowing in non-vetted people with these barbaric, hard-core and fundamental Islamic ideologies cannot continue. I listen to Senator McKim and he talks about their basic human rights. Well, I'm sorry, what about Australians basic human rights? What about the people in Syria and Iran, and even in Afghanistan? What about their basic human rights? He's not thinking about that.

Everyone has responsibilities for their own actions. These people lost their basic human rights. He talked about freedom—their basic freedoms: that's what it's all about. Basic freedoms and their freedom of movement in Australia, because if they come back here we're going to monitor them. How dare we do that! How dare we know where they're going and what they're doing! If they're planning a terrorist attack or if they want to murder an Australian, how dare we ask about that and their basic freedoms? No! They lost their freedoms when they left this country to go and fight. They had no fear, but an intention to kill those who opposed their ideology and to take over countries and murder others—innocents. These people don't deserve to be here. Why should we bring them back? Why should we pay for their legal costs and then end up with them possibly in prison at a cost to the taxpayer? They made their choices in life. You make your bed and you lie on it, as far as I'm concerned.

How ridiculous is it to say that you're losing your freedoms? What about the people that have lost their lives in this country because of those who want to take innocent people's lives because of their own views? Treated equally under the law—that was another comment: treated equally under the law. They gave up those rights. They don't have those rights to be treated equally.

I've been in this chamber now for three years. I hear the Greens going on with their comments about all how they want to protect everyone's rights, but it is never, ever about the people here in this country and protecting the rights of people in Australia. It is always about everyone else around the world and their privacy and protecting their rights. Your responsibility is here in this country to protect the rights of the people here. As we make this decision, their right is that we ensure the safety of the people in Australia first and foremost. We're sending a clear message: if you have to go through this, a TEO, to get back into this country, so be it. Then you might think twice about leaving our shores to go and fight in another country where you have no regard for life over there.

So it's about time we toughened up and got tough on this. That's what the Australian people want from us. Heaven help us if the Greens ever get control of the government in this country. It would be bedlam. As I said, it is a real concern where we are headed as a nation if we do not allow this bill to pass. As well, I would say that most of these people who want to come back here would be unemployable. Not only will they cost Australia enormous amounts of money in surveillance, but they will have a tendency to remain on long-term welfare—plus their families, if they want to apply to bring in their families.

Lastly, I would like to put on the record how grateful One Nation voters and I are for the tireless work of our Australian Defence Force and coalition partners, who have decimated groups like Isis. The Australian federal and state police, along with ASIO officers, also deserve an enormous amount of praise for their help in maintaining the safety of all Australians against the terrorist threat in this nation. To all our serving personnel, both here and abroad, all I can say is thank you.

I can speak on that because I went to Afghanistan last year. I was in the war zone and I saw how the benefits of us being over there had helped the country to get back on their own feet and start learning how to defend themselves to give the people back their right to actually vote, which they were frightened to ever do before. So our presence over there is helping the people. To spend time with the soldiers over there and try to understand them was a wonderful experience for me. So, unlike a lot of people here in this place, who speak on an issue yet have never travelled over there to take firsthand experience to do with it, you clearly sometimes don't even know what you're talking about.

I don't want to see this terrorism in our own country. The only way we're going to stop that is to take a strong stance against these people coming back here, who will clearly have this hatred in their hearts for us, our culture and our way of life, and will do us harm whenever they possibly can.

So I say to the Greens, I wish you would do the job that you should be doing here: standing up and representing the people of Australia and their safety first and foremost. Because isn't their safety the number one issue that we must be looking at here, first and foremost? These freedom fighters made their choice to go over and fight in another country. What about the lives that are being destroyed there? They have no regard for that. Do you think they have any regard for lives here in this country? A clear message must be sent to everyone else in this country: if they think about wanting to leave our shores to go and fight somewhere else, there will be repercussions and you will face those repercussions. If it means you will never be able to return home to Australia, so be it. If it means you will never come back here and see your family, so be it. You made your choice in life. You made your bed, you lie in it.

I hope that this bill gets through tonight with some commonsense from the senators in this place. It is so important to our security. I will say to the government, to Peter Dutton, that I am grateful that they have introduced this bill, because this is what the Australian people want.

6:59 pm

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

The Labor Party has a long and proud tradition of seeking to place national security well above partisan politics. Amongst other forums, we seek to do that through the processes of the PJCIS. Protecting the security of Australians is a fundamental responsibility of government, and as a party of government we take that responsibility very seriously. We also understand that exercising that responsibility requires coordinated action by parliament and the executive, and it's on that basis that we offer bipartisanship on national security issues.

Bipartisanship requires two parties; the hint is in the name. It's becoming apparent that the only party committed to it is us. The government seems determined to undermine it in relation to the bill that is before this chamber, the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019. The government rushed this legislation through PJCIS, but, despite that, coalition and Labor members on that committee worked diligently through various community concerns and provided their detailed report on 4 April 2019, making 18 substantive recommendations. These recommendations were not landed upon lightly. They were the product of debate, discussion and deliberation amongst all of the members of the committee. I would make this observation: contrary to the assertions of some, for us bipartisanship does not mean automatic agreement. What it does mean is a serious commitment to dealing with the policy issues as they are presented to us by the experts and dealing seriously with the community concerns that are presented to us, and we do that through the processes of the PJCIS, negotiating in entirely good faith with the other members of that committee.

The recommendations of the committee addressed very real concerns that the bill may have unconstitutional or unintended consequences. The purpose and effect of these recommendations were set out earlier by the shadow minister for home affairs and the shadow Attorney-General in the other place. The government has rejected four of these recommendations in full and a further six in part. People need to understand how serious this state of affairs is. It is the first time since 2013 that the government has explicitly rejected PJCIS recommendations. It's unwise on the policy front because these recommendations are important, but, more broadly, it undermines the operation of the PJCIS. What faith can members of the committee now place in the undertakings and commitments that are made by coalition members of that committee? The Minister for Home Affairs seems determined to undermine his colleagues. The government has walked away from bipartisanship on this occasion, and on that basis we will be departing from our usual practice and will be moving amendments in this chamber.

Looking at this debate, you get the sense that our government is searching for a way to manufacture conflict. It was brought on suddenly with an argument about urgency. We need to be very clear: this is not a problem that has suddenly arisen for Australia. Since 2013, when the government was elected, Australia, like many other Western nations, has seen some of its citizens head to Syria and Iraq. And for the past few years Australia, like other nations, has had to decide how to deal with these citizens when they wish to return. In a real contrast to Australia, the United Kingdom dealt with this some years ago. The bill in that country that the government likes to compare this bill to was introduced in 2015. In the four years since those decisions taken in the UK it's reported that up to 40 foreign fighters have re-entered Australia. It makes you wonder how the government's stated commitment to national security, how the urgency of this bill can be reconciled with the historical record in relation to foreign fighters and their return to our country.

I think there has been a great deal of confusion in the public debate about the scope of this bill, and in particular who it affects. Published figures suggest that there are perhaps 80 people who could be affected: 20 women, 57 children and a range of men, many of whom are currently being held in Kurdish prisons. Some of the rhetoric would make it seem as though this bill is the only thing standing between Australians and a horde of foreign fighters, and those figures suggest it is plainly not. It is one of a large number of tools that our intelligence and law enforcement officials have at their disposal. Many of the people returning could well face criminal charges for having gone to an area controlled by ISIS in the first place, and others may be subject to control orders and monitoring.

There is also confusion in the public debate about the operation of the bill. The tone of the debate makes it seem as though the bill is about keeping people out of Australia. It is not. It is about managing the way that they re-enter the country. Once the minister issues a temporary exclusion order, the person affected has the right to apply for a return permit. If the person makes the application in the form and manner specified by the relevant rules, the minister must grant the permit. There is no discretion. This scheme helps to ensure that there is a proper process for that re-entry. It allows us to delay and control the return and re-entry of Australians of counterterrorism interest until appropriate protections are in place, and it enables the Minister for Home Affairs to impose conditions on those individuals once they've returned to Australia to manage any risks that they may pose. These potential conditions that may be placed on their return are contained in the legislation in an exhaustive list that details the reporting requirements that might be required—reporting about where you live, where you study and the telecommunications access that you might seek to engage in.

Labor supports the intent of this bill. We put the safety and security of Australians first. We support strong laws that are proportionate to the scale of the threat and are targeted at the threat. We seek to work in a bipartisan fashion to achieve the best outcomes for keeping our nation safe. This law needs to work to be able to efficiently and effectively achieve those objectives. That is why the PJCIS made recommendations to address some of the deficiencies in this bill, and that is why Labor will be moving amendments.

(Quorum formed)

7:08 pm

Photo of Richard Di NataleRichard Di Natale (Victoria, Australian Greens) Share this | | Hansard source

Our entire system of government is built around the notion of the separation of powers. It's constructed that way to prevent politicians from engaging in corruption and using their office against the public interest. We've got checks and balances that make sure that no single minister is able to amass too much power. For our system to function properly, no minister should be able to set themselves up as judge and jury. Of course, if there was a list of ministers that we might want to trust with that power, Minister Peter Dutton would be dead last on that list.

Yet that is what this bill does, and it does it all in the name of national security and bipartisanship. It is that bipartisanship that has got us into the mess that we're in today. We have seen a bipartisan consensus between the Liberal and Labor parties so that anything with the term 'national security' cannot even be debated. We know that if people have committed a crime then they should be charged in a court of law, and, if found guilty, sentenced to a term of imprisonment if that crime is punishable with that sentence. Instead, what this bill asks us to do is to push that fundamental responsibility off onto other countries to manage.

Well, we don't support that. If we truly want to make the world a safer place then what we should do is ensure that people who commit crimes are brought home and monitored in Australia, not cut loose in the very countries in which they're most likely to engage in violence and are least able to be brought to justice. This law has the potential to create two classes of Australian citizen and to apply to children as young as 14. That's not what this country is about. We don't treat children like that, and yet that's what this bill asks us to do. How can it possibly be in the best interests of a child as young as 14 to bar them from re-entering their country of birth? If what we want to do is to draw these children away from radical and extremist ideologies, what better way than to bring them here, back into Australia, where they have family and social support networks, and where we can ensure that they are able to function as decent citizens in a decent country?

National security, for too long, has been something that this government has used as an opportunity to try to push what is a radical, dangerous agenda through this parliament and use it as a wedge to attack the Labor Party. I expect that sort of nonsense—that garbage—from Minister Dutton. It's clear that they don't have an agenda in this parliament, so what better agenda than to do everything they can in the first week that this parliament is debating serious business than to put forward bills that try to attack their political opponents? But that is no way of running a country. We saw it earlier this week when it came to the drought reform package and we're going to see it later this week when it comes to the treatment of activists, of people standing up for improving animal welfare standards in this country. And we're seeing it right now, with this government doing everything they can to try to force the Labor Party into supporting a position that they know the Labor Party have already expressed concerns about.

This legislation was debated through the Parliamentary Joint Committee on Intelligence and Security. We have grave concerns about that committee. It's a black box. It's not open to members of the crossbench or the Greens. Evidence is heard in camera; we're not privy to the arguments that are made that lead to recommendations that almost always ensure that legislation that restricts people's freedom is passed. And even that committee—that committee, that almost always supports, with few changes, national security legislation—expressed concerns about the bill that we're debating today, and it made a series of recommendations that it should be amended. The Labor Party have expressed concerns that the government is ignoring the recommendations of that committee. And if the PJCIS is making recommendations that a law needs to be changed, we know that there is something wrong with that piece of legislation! And yet, despite the fact that those recommendations have been made and despite the fact that we've heard from the shadow Attorney-General that he has grave concerns about that legislation, they're going to give the government another blank cheque. They're going to give the government full support for a piece of legislation that they've expressed grave concerns over.

When is the Labor Party going to stand up to this shocking government? Last week, you turned your back on 100 years of progressive taxation, 100 years of support for using the tax system to ensure we address economic inequality. This week you're turning your back on 800 years of separating power away from the hands of one person. You're turning your back on some of the fundamental tenants of western Liberal democracy that say we should never concentrate too much power in the hands of a single individual. Why? It's because you're afraid. You're afraid of looking like you're weak on national security. Well, you won't be weak on national security. You'll be strong on standing up for the individual rights of every citizen of this country.

The test that should be met here is a test that is one that we put before courts of law. We don't want to leave these decisions up to ministers in this parliament, because we know that some of them—and, indeed, this minister—will use that power to score craven political advantage. Are you really willing to sacrifice a separation of powers and the lives of young Australians just to make sure the coalition can't run an ad three years from now saying that the Labor Party's soft on terror? Take a stand, for goodness sake. People right around the country are crying out for someone to take it up to this government.

I've said it before and I'll say it again: you don't beat the Tories by becoming just like the Tories. That's what Labor seems to be doing. The Labor Party lost an election, but it's behaving like there was a hostile takeover of the Labor Party by the Liberal Party. We're disappointed with the outcome of the election. But toughen up. Show some courage. Grow a spine. People around the country, voters are asking, 'What do you stand for?'

We've got a responsibility in this place to stand up for the things we believe in. To get on the radio in the morning and say that you've got grave concerns about the government's legislation is one thing, but it means nothing if you're going to vote for it. We have a responsibility in this place to oppose bad laws, and we have a responsibility in this place to look after people who don't have a voice.

I am sick and tired of standing up in this chamber and being the voice of the only party prepared to speak against bad legislation and then vote against bad legislation. You spent an election campaign talking about economic inequality and how the tax system was rigged to benefit people on high incomes. What did you do when you came into the joint? You worked with the coalition to hand a whacking great big tax cut to the wealthiest Australians!

Before the election, you said the drought fund was going to line the pockets of National Party mates and that you wouldn't support the drought fund for that reason—because it was ripping money out of infrastructure to support the big corporate irrigator mates of the National Party. And what did you do when you come back in here? You voted for the thing! Before the election, it was a good thing that the coal industry was coming to an end, according to Richard Marles. Apparently now, according to Richard Marles, we should be celebrating the coal industry and the contribution it makes to the Australian economy!

Well, we've had a gut full of it. We've had a gutful. It is becoming increasingly clear that there is only one voice in this parliament that will take it up to the coalition. We're not going to roll over just so that the Prime Minister can tickle our tummies, just so that we might look like we're soft on national security legislation. You know where that leads. It leads to journalists raiding the offices of the ABC. That's where it leads—the slow and gradual creep to a police state. Well, if you don't want to lead the opposition to this rotten, terrible, stinking government, the Greens will do it for you.

Debate interrupted.