Senate debates

Thursday, 25 July 2019


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

10:11 am

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

As a servant to the people of Queensland and of Australia, I rise to speak about every human's highest priority. First, I want to protect Australians from the scourge of terrorism and from those who would destroy our Australian way of life, our culture and our very existence. The aim of this bill, the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and the related bill, is to protect us all from those who seek to destroy our culture. Security should be at the heart of what we do in this chamber. As our party leader said just a few minutes ago, the Labor Party and the Greens cannot demonstrate that. But we believe we can.

One Nation strongly supports this bill because it is aimed at complementing and strengthening our security measures and protecting Australians from the risks of imported terrorism. This bill and the related bill ensure there is no rush for those vile men and women who actively supported terrorists in the Middle East conflict in Syria—supporting ISIS, a declared terror organisation—to carry out their violent push to dominate and control innocents around them. That is core. Known for bloody, barbaric murders, rapes of women and children, and mass killings of those who could not recite passages from the Koran, these men and their deadly women supporters do not deserve in any way to be considered innocent Australians abroad. They made a conscious choice to join and support murderers whose aim is to end Western civilisation.

This bill ensures that authorities will have a reasonable amount of time for would-be returnees to be investigated fully, to identify the risks they may pose to the personal safety and security of the Australian people, should these terrorists return. Seriously, how could a reasonable, thinking person want one of these returnees anywhere near our families? What amount of rehabilitation will ever have us believe we are safe anywhere near these terrorists, should they return? There is no way that Pauline Hanson's One Nation will support the spread of these radical beliefs in this country—no way, truly. The Greens are off the planet if they think that these terrorists or their families should be able to come waltzing Matilda back to us, back into the arms of a tolerant and naive Australian community. Should they get away with saying 'Honey, I'm home!'?

The Greens have described this as a bad bill and say they will not support it. They have said that Australian citizens should not have to face the same security of conduct that non-Australian radicals would face. What rubbish! The Greens, and some in Labor, show they are anti-Australian and are thus, like terrorists, anti-human. A terrorist is a terrorist, and we do not want them here. Our view is a strong and clear one: if returnees have left Australia to fight against Australian principles, why should it be easy for them to come back—if they should come back at all?

Terrorism is a real and current threat to Australians and our way of life, and to our security. Since 2001, 73 Australians have been convicted of terrorism-related offences. Fifty of those are currently in jail. About 80 Australian men and women are currently in Syria or Iraq and have fought for or supported Islamic extremist groups. About 100 Australian terrorists received their just deserts, dying for nothing in the dust of a foreign country.

There have been seven attacks and 16 major counterterrorism disruption operations in response to potential-attack planning in Australia. These figures are terrifying in light of the thousands of Australians who would have died as a result of these attacks were they not successfully foiled by our police and security personnel. Vigilance by the government is needed to protect our citizens, and strong laws are necessary to maintain the excellent success rate of Australian counterterrorism measures. Please think about this: one of the scariest statistics related to terrorism in Australia is that Australia's national terrorism threat level is at 'probable'.

Pauline Hanson's One Nation is proud to support this bill. It takes a deservedly tough stance and provides an approach that is clear that, as a country, we take the terrorist threat seriously and are prepared to provide a tough response to ensure people's security. That concern is foremost with Pauline Hanson's One Nation. Please consider these further thoughts: already, dual citizens can have their Australian citizenship revoked providing the government complies with high hurdles. That's already the case. Those who are Australian only cannot have their citizenship revoked under international convention. Although, after listening to people across our state, I know that many Australians—me among them—would like to stop these terrorists returning altogether, they are, in fact, allowed and entitled to return.

This bill enables our immigration and counterterrorism experts to do their job of assessing threats, with the sole purpose of protecting law-abiding Australians. The government cannot stop Australian citizens from returning, yet temporary exclusion orders can delay the return of terrorists until their threat can be adequately assessed and measures put in place to protect the security of ourselves and our families. Government has three primary roles—protecting life, protecting property and protecting freedom. This basic and practical approach has long driven Pauline Hanson's One Nation, and we commend the government for introducing this bill.

Our opponents will claim there are human rights issues. The reality is that opponents put the rights of criminals and terrorists ahead of the rights of law-abiding Australian citizens. I say Australians and their families have a right to safety, peace, freedom and security in our own country. Our Constitution was written at a time when it was assumed that inhabitants of our country were loyal to our country. Sadly, after three decades of the Liberal-Labor duopoly relaxing immigration standards, we now have homegrown and foreign terrorists who want to destroy our country and what our country stands for. Australians who have self-selected themselves out of Australian values to fight for a barbaric political ideology will still have the right to judicial review of the minister's decision. This bill simply ensures that there is a process for managing the return of so-called Australian citizens subject to them complying with reasonable conditions to ensure our security. It is a hardline bill, and we like that. It is a hardline bill because these barbarians have, through their own behaviour and free choices, tossed aside Australian values and the values of Western civilisation.

I'd like to take some time now to discuss the fundamentals of immigration. Having worked briefly in Mount Isa many years ago, I can proudly point to it as a success story. Immigrants from nations all over the world with values similar to and compatible with Australian values are a large part of the success of that once-remote community. Mount Isa generated and continues to generate enormous wealth for the townspeople, the North Queensland region, our state and our nation. Mount Isa proudly exports its products and its world-famous expertise worldwide. It does so because people of many backgrounds have settled and consciously and willingly chosen to assimilate and integrate, after being selected to immigrate based on their ability to assimilate and integrate and to contribute productively. Our country also has a mix of races, and we do not advocate selecting people or in any way treating people separately based on their race. Mount Isa's success was not driven on the basis of race, religion or nationality; yet tens of thousands of immigrants now call Australia home and they have settled in and do us proud. In Pauline Hanson's One Nation, we will discuss race, and we do, yet we will never proclaim one race is superior to another or deserves more than another, because we want one nation. We will never be racist, nor will we let religion decide the policies here.

But let's move on to something separate from race and separate from religion—to ideology. We cannot say that we will not segregate on the basis of ideology, because a significant proportion of immigrants in recent years have tried to change Australian life to meet their ideology and espoused behaviour that threatens this country. For example, they want to suppress women, and they do suppress women. That is not for this country. They want to force women to wear face coverings. That is not for our country. They engage in and support paedophilia, taking child brides. That is not for Australia. They want to stone homosexuals. That is not for Australia. They want to engage in female genital mutilation. That is not for Australia. They want to practise and they want to support Sharia law. That is not for Australia—one law, one nation. They want halal certification at customers' cost—our cost, the cost of everyday shoppers in Coles, Woolies, IGA and the corner store. That is not for Australia. They want to practise polygamy, and they do practise polygamy. That is not for Australia. And they want to support terrorism, and that is not for Australia. And so on.

This ideology amounts to a way of structuring society to control people using control of thought and belief. Like socialism and like communism, it is an ideology. They want to use cruel, physical punishment such as beheading, beating wives, caning, throwing people off buildings and stoning. They use fear, and that is inherent in terrorism. They are the terrorists. These practices that I just listed are contrary to Australian values and to our way of life. The entry to our country of such people pushing a barbaric ideology is the exact opposite of what made Mount Isa successful. It is the exact opposite of what made Australia successful, safe and secure. How can anyone support the entry of people pushing such ideology? Anyone advocating their entry is undermining Australian values and our way of life—undermining Australia and undermining the safety of everyday Australians.

As our party founder, Senator Pauline Hanson, says, 'We do not treat people based on their race or their religion. We put Australians first—one nation.' That is why we advocate, as part of our immigration policy, a travel ban of the type President Trump successfully implemented, preventing entry of immigrants from nations with a proven history of terrorism or violence. Yet the Greens and some elements of Labor appear to put Australia last and certainly behind their love of virtue signalling.

I must express my disgust with parts of Senator Di Natale's speech last night and his stage show—yet another Di Natale stage show with his confected rage. He's putting terrorists before Australia's security. His interest is not to protect Australians; his show is to steal Labor votes. It's standard Greens practice: fabricate a problem, create a victim, then create an oppressor, then create punishment and then, to top it off, enhance political correction to silence opposition. They label people 'racists' or 'deniers' or whatever. Why? It's simply because they lack the hard data, they lack the facts and they lack a coherent argument, and so they return to labels. Whenever we hear someone being smeared by the Greens, it confirms that they do not have an argument or facts. Sadly, as the Greens move further left, the Labor Party moves like its shadow with them. But, sadly, the Liberals then try to seek the Greens' preferences.

This is the sorry tale of what passes for governance in our country. And who pays the price? It's everyday Aussies across our country. Who wins? The UN wins. Meanwhile, our vote grows because we have the guts to say what people are thinking—the truth. Failed Liberal-Labor policies on water, immigration, tax, infrastructure—trace them all to the loony, antihuman Greens and their UN masters. The pattern of fabricating problems, victims and PC is a classic UN-Soros practice.

I take this opportunity to explore the three main parts of governance—stewardship, governance itself and trusteeship. Stewardship of government assets means looking at cost of living and managing the economy properly, not the way we're seeing it being managed at the moment by making budgets to appeal to virtue signallers. Energy policy is destroying the fundamentals of our economy. On tax, multinationals are getting away scot-free. Immigration numbers are climbing out of all proportion. On security, we advocate something that Labor and Liberals need to look at: the quantity of people coming into this country needs to be cut dramatically, and the quality needs to be reassured—that is, the number and the mix of immigrants need to be properly restored. Governance, secondly, is providing for the future with a vision. That means cutting immigration numbers till our infrastructure can catch up and we get our infrastructure for water and energy. The third aspect is trusteeship of our values. This is arguably the most important of all, because culture is the most powerful determinant of productivity. Whether it be a football club, an international company, a small business or a parliament, culture is the most important determinant of productivity and prosperity, and culture is being mismanaged in this parliament.

Focusing on security involves three things. One is secure borders. Senator Pauline Hanson and I complimented the government three years ago for what they had done with our armed forces to ensure secure borders. What they have done, and what we have helped them to do, is to ensure that those borders are kept secure against the undermining of the Centre Alliance, the Labor Party and the Greens. Secondly, it involves personal security against terrorism. Thirdly, it involves economic security, and people seem to have forgotten that: energy policies, water policies, taxation policies and foreign policies.

We support immigration, at greatly reduced numbers. We want zero net immigration, and we want immigration of people consistent with Australian values and laws—people who are willing and able to assimilate and integrate, to uphold our values and our way of life. After decades of the Liberal-Labor duopoly destroying our country's productive capacity, what we in Pauline Hanson's One Nation want for Australia is a productive, safe, secure nation with its productive capacity restored. That's not too much to ask.

At night, we don't lock our homes because we hate the people outside; we lock our homes because we love the people inside. Government's primary role is to protect the safety, property and freedom of people already inside Australia. Pauline Hanson's One Nation supports this bill, which protects constitutional rights and the primacy of safety for everyday Australians and for families. Government's primary role is to ensure security, and that is why we will be supporting this bill.

10:28 am

Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

I politely invite Senator Roberts and Senator Hanson to listen to my contribution this morning, which is obviously going to be quite different to theirs. I might start by talking about a piece of art, a portrait that I have hanging on my wall here in parliament. It's my own. It's not a portrait of me, but it's my own art—unlike Senator Bernardi, who I understand does have a portrait of himself in his house. But I digress. I bought it at a jeans shop for $80, and it's very special to me. It's a portrait of someone who I believe to be a great Australian man, and his name is Terry Hicks. What's also special about the portrait is that it was spray-painted by a Tasmanian artist at an Amnesty International conference in Hobart a few years ago. I bought it and put it up on my wall because Terry Hicks is a personal hero of mine. I think everybody understands he crusaded for many years to bring his son, a foreign fighter by any definition—text book definition, any broader definition—back to Australia.

Terry Hicks was open and honest with the Australian public in his campaign to bring his son back to Australia. He said his son had been stupid, had participated in a dangerous activity, had broken the law and potentially committed crimes, and he should face the full force of the law. A man, a father's love for his son brought his son, David Hicks, back to Australia. He went through an incredibly difficult 10 years. He stood in a cage in Times Square in New York while people spat on him. He did whatever it took to highlight that his son was a human being, had made a mistake, had been highly vulnerable like a lot of young men are to the hatred and violence that's preached and radicalises young men not only in this country but all around the world. He argued to the Australian people, and successfully in the end, that his son deserved a chance at redemption, that his son deserved to come home to Australia. That's a powerful story.

Do I think that all foreign fighters want redemption and the chance of redemption? No, I don't. I think many of them want martyrdom. Do I believe that all foreign fighters should be redeemed? That is highly debatable. Do I believe that foreign fighters, if they have committed heinous, violent, criminal acts should face the full force of the law? Yes, I do. Do I believe that those kinds of people in Australia should be behind bars for our safety? Yes, I do believe that.

What I question—that's fundamental to this bill—is who gets to decide whether someone gets a chance at redemption if they want to come home to Australia? Am I happy with the fact that our minister in this portfolio, Mr Peter Dutton, gets to decide who gets a chance at redemption? No, I'm not. Am I happy that a secret process that involves a minister, an often highly political environment and an intelligence agency making deliberations in a highly-secret environment get to decide who gets this chance? No, I'm not happy with that either. My colleagues have made very powerful arguments, as have other senators in this chamber, in the last 24 hours about the need for judicial oversight, separation of powers and the need to have a process that at least gives a right of appeal and doesn't hand unilateral decision-making process to a minister of the Crown. Enough has been said on that.

I would like to raise an issue that hasn't been raised in this debate so far that I think absolutely needs to be raised as a matter of public interest and that, I believe, has been an oversight. It's important in the context of what I raised about David Hicks and Terry Hicks because, when we have debated this bill in this chamber, the focus has been very clearly on foreign fighters, but if you have a look at clause 10 of this bill—making a temporary exclusion order—paragraph (2) says:

(2)   The Minister must not make a temporary exclusion order in relation to a person unless either:

  (a)   the Minister suspects on reasonable grounds that making the order would substantially assist in one or more of the following:

  (i)   preventing a terrorist act;

  (ii)   preventing training from being provided to, received from or participated in with a listed terrorist organisation;

  (iii)   preventing the provision of support for, or the facilitation of, a terrorist act;

  (iv)   preventing the provision of support or resources to an organisation that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code; or—

and this is the bit I would like to focus on—

  (b)   the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of the Australian Security Intelligence Organisation Act 1979) for reasons related to politically motivated violence (within the meaning of that Act).

Is that definition broad enough to allow the minister to decide whether someone has citizenship rights in this country if they deem a person, an Australian citizen, to be a threat to national security? Well, I'm not a lawyer, but I have checked with legal experts and with the Australian Lawyers Alliance and their spokesperson on criminal justice, Greg Barns, and their comments were that this provision is extraordinarily broad. How might ASIO think that a person is directly or indirectly a risk to security because of some link to terrorism or concerns over politically motivated violence? What exactly does that mean? Would this clause allow a minister, under a secretive process with no recourse, total power to make deliberations about an Australian citizen overseas who may be a journalist or a whistleblower or who may be passing on secret information that they believe is in the public interest and is part of their role as a journalist? Could this interfere with press freedoms? Well, the Australian Lawyers Alliance say yes, that is what they believe.

So yet again we have another law before this parliament that allows Minister Peter Dutton extraordinary power over whistleblowers and journalists that this government—remember the political context of this—may consider to be a threat to national security. We see whistleblowers, media organisations and journalists who have published material, such as, in the very famous case of WikiLeaks, the Iraq war logs, or even the trove of materials that Edward Snowden released, which was published all around the world. Much of that work received big journalism awards for acting in the public interest. How is it that this parliament is going to pass a bill that gives those kinds of powers to a minister at a time when there are especially significant concerns in this country over what we have seen as a crackdown on press freedoms even in recent days and recent weeks, let alone lingering concerns that we have debated in previous legislation around the powers of our national security agencies? Take WikiLeaks. Does any senator in this chamber believe that ASIO, for example, may not make an adverse finding against someone in WikiLeaks or working for WikiLeaks on the basis of past history? We know that the issue that WikiLeaks is a potential threat to Australia's national security has already been raised by ASIO under previous administrations.

We had a very clear situation in the United Kingdom with David Miranda, a Brazilian national who was stopped in transit between Berlin and Rio de Janeiro after meeting a filmmaker. He had been carrying encrypted files, including an external hard drive containing 58,000 highly classified UK intelligence documents that had been released by Edward Snowden. In order to assist the journalistic activity of Greenwald, The Guardian had made his travel reservations and had paid for his trip.

As it turned out, he was detained under a law in the UK that essentially labelled his activities as 'terrorist activity'. He was seized and put into detention, even though the courts agreed it was an indirect interference with press freedom. The security agencies in the UK took a journalist, seized his documents and held him in detention under a terrorism law—a new law that had been brought in that allowed them to do so. So clearly a national security agency had made a decision that a journalist carrying out their job was contrary to the UK's national interests and, indeed, was a threat to the UK's national interest.

It's interesting that that same journalist was awarded a journalistic prize. Even though a Pulitzer Prize was given to Greenwald, Miranda, The Guardian and The Washington Post for publishing the Snowden material, which revealed illegal spying and surveillance of the US and its allies in the post-9/11 world, and even though they'd won the biggest global journalistic prize in recognition for their work, they were labelled as terrorists. Acting Deputy President Farrell, you know that in this place I have queried the use of that word. I have grave concerns. I think it's one of the most misused words in the English language. It's highly subjective. It's often a real problem for the media to use that word, but throwing that word around is not a problem that politicians have. We have very strict definitions in our country as to what constitutes a terrorist activity, but, in my opinion, it is one of the most misused words in our modern dialogue.

A number of very high-profile politicians have called those journalists terrorists because they believed that the releasing of these documents had aided and abetted terrorist organisations. It's a very fine line that we deal with here, and I happen to believe that journalists going about their job in what they believe to be the public interest shouldn't be put in the firing line. We shouldn't be giving extraordinary powers to Minister Peter Dutton and our national security agency to make a determination as to whether you are an Australian citizen, have the rights of an Australian citizen and can re-enter the country.

Let's go back to David Hicks. What underlined that campaign was that he was an Australian citizen and he had rights to come back into this country. Regardless about what you thought about what he did and the situation he found himself in, where he ended up in Guantanamo Bay, he was brought back to Australia by a conservative government, as it turned out in the end, because he was an Australian citizen and he had rights. This bill gives the ability to a minister to take away those rights. This bill gives the ability to a minister to take away the rights of whistleblowers and journalists who may simply pass on information. And it may not necessarily be about Australia's direct national interests; it may be that one of our allies requests that the information that had been passed on is not in our national interest. It's been well covered in this chamber already.

I'd like to raise a couple more issues in the few minutes that I have left. Firstly, I understand that we've got a lot of work that we have to do in this place. We've got some huge issues facing our country and our future, and I do question whether this bill is just part of an ongoing culture war. Yes, I do see sinister intent behind this, but I also see political intent. I see a government wanting to go out there and, straight out of the conservative rule book, flag that it's strong on national security and strong on defence, those paternal characteristics that so underpin conservative politics. As we understand from Labor's contribution yesterday, the bill's been questioned by the closed-shop, black-box joint parliamentary committee of Labor and the Liberals. It's been questioned by them. We understand the government won't be tabling advice from the Solicitor-General, which no doubt also questions the legality and constitutionality of this bill. It's been rammed through this place, and for what purpose? Well, I reckon it's for political purposes. You can argue all you like that the government needs more powers to hold foreign fighters to account—or whistleblowers or journalists to account—but it can't be done at the expense of due process. It can't be done at the expense of taking power away from the parliament and giving more power to the executive.

And I've got to say: I heard Senator Keneally's contribution in here yesterday and she provided a very detailed, very moving account of why we should be rejecting this bill. Considering all that Labor have provided in the last 24 hours about why this bill shouldn't be passed by parliament, why it should be rejected, for the life of me I don't understand why Labor would vote for this bill in the end. I get that they believe they're a party of government and there's this longstanding convention that they support each other in matters like this, but I don't accept it. That's not a good enough reason. It's actually weak. I get that they want to play small target so they're not criticised by the government's propaganda arm in some of the Murdoch publications. I get it. But it's not a good enough reason for turning your back on a very sinister piece of legislation and a new law that gives extraordinary powers to a minister and our national security agency.

I haven't heard anything from Labor—even though they might say, 'We're a party of government and we don't want to be criticised for this; we've got other things we want to focus on'—about them repealing these laws. I'm happy to be proven wrong, if they become a party of government. This is the problem: with this ratchet effect, I'm highly doubtful and very cynical that Labor, if they got into government, would claw back any of these extraordinary powers that have been given to our Border Force minister.

I stand with my colleagues the Australian Greens, Senator Patrick and others, who are the real opposition in this chamber, who are prepared to stand up and say, 'This is totally unacceptable.' We all agree that we need to work to manage the risks to our citizens. We all understand the importance of national security. But some of us understand the importance of due process and not giving too much power to the executive. I'm sorry, but I do not see the people that we have pulling the levers in this country as the kinds of people I want to give new extraordinary powers to. There must be checks and balances. There must be due process. It is simply unacceptable that we can't do our job in this place—that we can't access documents and we can't have a Senate inquiry into the kinds of processes we're seeing set up, outside the two major parties, who are a closed shop on national security and always have been. Given this day and age, with the multitude of threats and challenges we face, it needs to be opened up to the Senate and it needs to reflect what the Australian people voted for, and that is a diverse Australian Senate.

10:48 am

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

By any standards the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 is an extraordinary piece of legislation. The government's proposed law is designed to establish a temporary exclusion order, or TEO, scheme to delay Australians of counterterrorism interest from re-entering Australia until what it regards as appropriate protections are in place. In large part, the bill has been developed as a measure to prevent or otherwise control the return to Australia of Australian former Islamic State fighters and supporters from Syria and elsewhere in the Middle East. This is a serious security issue and requires a serious response. But that response must be proportionate, constitutionally sound and incorporate appropriate safeguards against the arbitrary executive power consistent with our democratic society.

There are two core components to the TEO scheme as set out in the bill. First, an Australian citizen who is overseas may be subject to a TEO prohibiting them from returning to Australia for up to two years at a time. The TEO can be made when the minister, the Minister for Home Affairs, suspects on reasonable grounds that the order would substantially assist in preventing terrorism related activities or if ASIO assesses the person to be a risk to security for reasons related to politically motivated violence. Entering Australia if a TEO is in force would be a criminal offence, punishable by imprisonment for two years.

The second component of the scheme, a return permit, provides that, while a TEO is in force, a person will only be able to return to Australia where a return permit is issued by the minister. So the process is: a TEO is issued, a person subject to the TEO can seek a return order, and the minister will then provide one. Under a return permit, the minister can impose conditions to control the manner in which a person subject to the TEO may return to Australia. The return permit may specify when and how the person is to return to Australia. The bill also provides that a return permit may specify conditions with which the person must comply once they return to Australia. Failure to comply with a condition will constitute a criminal offence punishable by two years imprisonment.

So there's no doubt that the bill, as now before the Senate, is a very forceful security measure—an Australian citizen may be excluded from his or her own country. Under conditions set by a return permit, a person who has not been charged with any criminal offence may be subject to conditions that amount to house arrest. Like a number of other pieces of counterterrorism legislation, the bill provides the Minister for Home Affairs powers in relation to Australian citizens that would only ever be contemplated in time of war.

Centre Alliance is prepared to support the intent of the bill as a necessary security measure, but only with considerable reservation, and it is essential that the legislation, as it is before the parliament this week, be subjected to further and more rigorous scrutiny. The outcome must be absolutely sound, not only from a national security perspective but also in the proportionality of its effects. It must not give the minister arbitrary power and it must have robust constitutional and legal validity.

The bill was introduced into the 45th Parliament and, as senators are aware, the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, conducted an extensive review and produced a detailed report that recommended substantive changes to the legislation. The government has now reintroduced the bill with changes that implement some of the PJCIS recommendations. The government has not fully implemented all of the recommendations of the committee's bipartisan report. In some cases, where the government has indicated in-principle support in the PJCIS, its changes fall well short. In this regard, it must be clearly understood that the bill now before the parliament is qualitatively different from both the original TEO legislation considered by the PJCIS last year and from the bipartisan recommendations made by that committee.

Although, from the viewpoint of the crossbench, bipartisanship between the government and the opposition can be a double-edged sword, it is important that both the coalition and Labor work cooperatively on national security measures. This week, through the statements made by the Prime Minister and the Minister for Home Affairs, and through the government's rejection in the House of Representatives of the amendments moved by Labor to bring the bill in line with the PJCIS's recommendations, there has been a significant fraying of that bipartisan approach. This is an unfortunate development that augurs ill for consideration of national security issues in this parliament.

Certainly no-one should be rushing to pass flawed legislation, especially when the bill deals with national security and the fundamental rights of Australians. Of course, this morning during the motion to suspend I have talked of Centre Alliance's concerns in respect of the constitutionality of the bill. The PJCIS strongly recommended that the government obtain legal advice from the Solicitor-General or an equivalent legal authority on the constitutional validity of the final form of this bill. That recommendation was consistent with the committee's approach to other constitutionally uncertain counterterrorist measures. The government has accepted that recommendation but has not made any legal advice public or available to members of parliament.

I heard Senator Birmingham suggest that the release of this advice would assist terrorists. Look, if the advice is solid, in fact, it would deter terrorists from seeking to litigate. And, indeed, if this legislation is flawed or if the advice is in some way flawed, don't think for a moment that people can't just engage a very learned QC or SC, and they'll come up with the holes. So it's a bit disingenuous for Senator Birmingham to suggest that releasing this advice would be of some advantage to a terrorist. If there are shortfalls or constitutional uncertainties, let them be laid before the table and let us deal with those concerns. Let's not pass into law things that we know will end up in the High Court.

There is no shortage of precedents where the government has publicly released or otherwise made available to non-government parliamentarians advice from the Solicitor-General concerning the constitutional standing of proposed laws. The government should make its legal advice available to the parliament and to the Senate and it should do so today. I note that Senator Hanson indicated that she's been briefed on that legal advice. I point out to the government that that means privilege has been waived. You can no longer claim privilege over a document whereby you have surrendered confidentiality.

While the ultimate determination of constitutional validity would rest with the High Court, the parliament is duty-bound to satisfy itself that proposed laws are constitutional, and the government is duty-bound to share that advice concerning what are, I repeat, by any standards extraordinary legislative measures. Among the other significant departures from the PJCIS's recommendations, the government has not accepted the PJCIS's recommendation that the minister must not make a temporary exclusion order in respect of a person unless the minister reasonably suspects that the person is or has been involved in terrorism-related activities outside Australia and making the order would substantially assist in preventing the provision, support or facilitation of a terrorist act. That would be, in my view, a more appropriate threshold for the exercise of the power contained in this bill. Yet, as the bill presently stands, the mere existence of adverse ASIO security advice could allow the Minister for Home Affairs to rubber-stamp a TEO.

Secret intelligence, it should be noted, is very far from being infallible. ASIO is by and large a professional organisation, but mistakes do take place. Reliance on flawed, incorrect or fabricated information can have serious consequences and can give rise to serious injustice—the scandal around the detention of Dr Mohamed Haneef being but one example. The government has also not accepted the PJCIS's recommendation that the issuing authority for a TEO should be a judge, retired judge or senior AAT member. Instead, the bill proposes that the minister make the decision to issue the TEO, and then his decision is subject to a very narrowly defined review process by a judge, retired judge or senior AAT member. In this regard, it is important to note the observations of the Law Council yesterday. Mr Moses made this point:

A Commonwealth law may be unconstitutional if it authorises the Executive to determine and impose punishment for criminal conduct. A ministerial decision to grant a TEO is arguably punitive, and arguably invalid. In granting a TEO, a minister is effectively determining and imposing punishment for a citizen’s alleged conduct – or prospective offence - in the form of an order preventing re-entry. If such an order is to be made to exclude an Australian citizen from entering Australia, it is the Law Council’s view it should be made by a court, not a Minister.

The government's review authority is also deeply problematic in many other ways. It will not necessarily be able to examine the full scope of ASIO material available to the minister and, indeed, may effectively be denied access to the material. This is a funny thing about our system: the person that would be asked to review the minister's decision will have to have a security clearance. The minister can decide not to pass information on if it's not in the public interest to do so, yet the minister doesn't have a security clearance. It's a crazy situation that we have in our current regime, and I have a bill before the parliament trying to rectify that.

The review authority may amount to little more than a rubber stamp process for the minister's decision, and it raises its own constitutional issues, in addition to those raised by the TEO scheme as a whole. If we look at section 30 of the bill—I read it out before—it says that it's in the event that this law is not valid. The government know that there's a problem here; they put a provision in the bill in the event that it's unconstitutional. Let's stop and make provisions that prevent that unconstitutionality. In effect, the bill, as now presented to the parliament, could result in the Minister for Home Affair rubberstamping an exclusion order and another reviewer or authority just rubberstamping his decisions.

At every level, this legislation requires much further scrutiny. The bill, as now constructed by the government, should be referred back to the PJCIS for further detailed examination. This approach is strongly supported by the Law Council, which said yesterday:

But rushed laws at risk of Constitutional challenge pose an unnecessary risk to national security.

…   …   …

When it comes to matters of national security, Parliament must take the time to get laws right. That is why we are calling on the Senate to send it back to the PJCIS for further scrutiny.

We also need to look again at the question of the parliament's oversight of ASIO and other parts of the Australian intelligence community. Time and time again, the government has asked the parliament to give them new national security powers—many of them exercised in secret. Home affairs minister, Peter Dutton, and his security portfolio agency now exercise an array of powers greater than any of those exercised by any government since the national emergency of the Second World War.

However, parliament must not merely hand over power to the executive. Parliament must play its role in the scrutiny of our intelligence agencies, and we must end the self-imposed restriction on parliament's scrutiny of the operational performance of our intelligence and national security agencies. At present the PJCIS's role is limited to considering matters of finance and administration, and is explicitly prohibited from reviewing operational performance. This limitation is in contrast to parliamentary oversight in the other Five Eyes countries—the United States, the United Kingdom, New Zealand and Canada. Centre Alliance has sought to remedy this deficiency through its Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Bill 2018, and I have circulated amendments to the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019 that, again, seek to expand the role of the PJCIS in a way closely modelled on the Canadian oversight arrangements.

In addition, Centre Alliance will also move a second reading amendment that provides the bill and any circulated amendments to this bill be referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 11 September 2019. Further, Centre Alliance's motion will propose that further consideration of the bill be made an order of the day for the first sitting day after the PJCIS has reported. The government's—

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Shadow Special Minister of State) Share this | | Hansard source

Senator Patrick, can I confirm that you are moving that motion now?

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

No, I'm just foreshadowing a second reading amendment. The government has demanded that the Senate pass this legislation this week. The opposition has spoken out loudly about the flaws of the bill, the government's refusal to adopt all of the PJCIS's recommendations and the importance of bipartisanship in national security policy. The government has refused to engage and has said, 'Take it or leave it.' As I've said, no-one should be rushing to pass this legislation, especially when the bill deals with national security and the fundamental rights of Australian citizens. The PJCIS should do its job and review the legislation again, and the Senate should do its job properly as well.

Labor should do its job and not just talk and pontificate but oppose measures that they have said are flawed, likely unconstitutional and, consequently, unlikely to properly support national security. I seem to recall, when we were talking about the media raids, Mr Albanese saying to the media that no longer would the Labor Party just tick and flick legislation. They know there are problems with this bill, yet they're going to tick and flick it. They know there are problems; I listened to Senator Keneally's speech. We'll be supporting their amendments because they seek to rectify the bill. And, if those amendments are successful, we will support the bill.

I get what we're trying to do here. We're trying to stop those bad eggs getting to Australia and causing security issues. What Centre Alliance is concerned about is the innocent person who might just happened to have been in Jordan doing some work with a mission and happened to be photographed in a bar—probably not a bar, there, but in a place or at an event—where there might be people who are bad eggs. That photograph is then presented to the minister. That person may be completely innocent but the way it works at the moment is that the minister can make a determination and that determination gets reviewed, but not on the merits. There's no challenge to whether or not the photograph is correct. The review authority simply says, 'Did the minister make his decision informed by an ASIO brief?' That means that that very innocent citizen is now in a position where, in order to challenge the TEO, in order to challenge the re-entry permit conditions, they have to take the matter to the Federal Court or the High Court, at great expense.

In every other scenario where we have the executive making a decision, we give them an avenue like the AAT so they can present their position. There's not even a chance for the person subject to the TEO to put up a case and say, 'That photograph was taken, but I don't even know these people.' That's the problem that Centre Alliance has. It's not about the way in which you're trying to stop bad eggs getting to Australia and making sure we control them if they're Australian citizens; it's about protecting the innocent people. As such, we won't be supporting the bill. We will be abstaining unless the amendments Labor have moved are passed.

Photo of Don FarrellDon Farrell (SA, Australian Labor Party, Shadow Special Minister of State) Share this | | Hansard source

Senator Patrick, if you wish to move a second reading amendment, you need to move that before the minister rises.

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

I move:

At the end of the motion, add: ", and:

(a) the bills and any circulated amendments to the bills be referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 11 September 2019; and

(b) further consideration of the bills be made an order of the day for the first sitting day after the committee has reported."

11:09 am

Photo of Linda ReynoldsLinda Reynolds (WA, Liberal Party, Minister for Defence) Share this | | Hansard source

I thank all senators for their contributions to the debate on the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and the consequential bill. Senator Patrick just called this an extraordinary bill, and I agree with him. It is extraordinary for very good reasons. This hasn't been a rushed bill. It is balanced, and it is required now.

Around 230 Australians have travelled to Syria and Iraq to fight in the name of ISIL since 2012. Though many have died in fighting, many of those who survive intend to return to Australia, a country whose values and way of life—and responsibilities as citizens—they have rejected. Indeed, the advice of our national security agencies is that, following the recent collapse of the Islamic State's territorial control in Syria and Iraq, many of these people will be seeking to return to Australia in the very near future. Their return, and the significant risks they pose, must be carefully managed. It must be controlled in the interests of all Australians and our national security.

As we already know, the threat beyond our shores is also resident here in Australia. Since 12 September 2014, when the national terrorism level was raised, our police and security agencies have thwarted 16 terrorist attacks right here in Australia. It is against this backdrop, and on the advice of our intelligence and law enforcement agencies, that the government has introduced the temporary exclusion orders bill and advocates for its urgent passage. Keeping Australian communities safe from those who seek to do us harm is, and will always continue to be, this government's No. 1 priority.

But let us be very clear who we are talking about to be the subject of this legislation. These are not Australians who have taken themselves and their families on a war zone, a conflict zone, Contiki tour. These are Australian citizens who have enjoyed the rights of, and also the responsibilities accorded by, Australian citizenship: the right to live in a free and open society free from fear. These people have now come to the attention of counterterrorism interest. Why? It is because they travelled to Syria and Iraq. Maybe, in a few cases, they went unknowingly, but many actively went to support the work of ISIS—a terrorist organisation that has inflicted rape, torture and death on innocent people in both Iraq and Syria, an organisation that sought to subjugate people to the tyranny through force of arms.

Some of these people even took their own children with them to be trained to hate, to become martyrs, to become murderers, to become jihadi, and they raised their children under the ideology of terrorism and hate—the so-called 'cubs of the caliphate'. Now they want to return to Australia to benefit, once again, from the rights of being an Australian citizen. I'd ask all in this place: are you comfortable with having these Australians returning to Australia uncontrolled and unsupervised? We have to make sure, as much as we can, that they are safe to live next door to you or your constituents and that it is safe for their children to go to school with your children. Our view is that we must have formal controls in place to manage their return and allow Australian authorities the time they need to gather any outstanding evidence and to finalise any prosecution that may be required. This is why we are introducing these temporary exclusion orders—to keep Australian communities safe.

There have been many claims made in this debate by those opposite. They undoubtedly will be raised again when we go into committee, so I'll leave the rebuttal of those issues until that point. But I would make these two points. There's been a lot of discussion in the chamber that these are unfettered rights—and, again, there's been a lot of demonisation of the Minister for Home Affairs. Any cursory read of this bill would demonstrate that what they have said is patently untrue. All decisions by the home affairs minister to make a TEO are subject to administrative review before the TEO can be put in force, and they are subject to judicial review as well. So that first claim by those opposite is patently untrue and fearmongering.

The second issue that we've debated and discussed at some length today is about the release of the Solicitor-General's advice. I'd say two things in relation to that. Firstly, as has been pointed out, this government will never, ever release information that would be patently of use to terrorists and their own lawyers. That, simply, is something we would never support. Secondly, we did seek that advice at the recommendation of the Law Council of Australia and the Human Rights Commission. I understand they are happy with the fact that we did that. They asked it and we did that.

In conclusion, I'd like to acknowledge the significant work in this regard on this bill by the ministry of home affairs, ASIO, the AFP and the Office of Parliamentary Counsel. I thank also my colleagues for their debate and consideration. It's for these reasons that I commend these two bills to the Senate.

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

The question is that the second reading amendment moved by Senator Patrick be agreed to.

11:22 am

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

Can I just confirm that you're actually putting the second reading question?

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

I am. The question now is that the bills be read a second time.