Senate debates

Thursday, 1 August 2019


Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019; Second Reading

10:16 am

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 Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019. The laws we are debating today are extraordinary, both in the powers they infer and the story of how they came to be before us. These laws were enacted in 2003 as Australians faced a very different world after 9/11 and the Bali bombings. The parliament sanctioned these laws because they thought them necessary to combat the threat of terrorism on our shores.

The powers allow ASIO to question or to question and detain individuals for the purpose of obtaining intelligence in relation to terrorist activities. With the consent of the Attorney-General, ASIO could request either a questioning warrant or a questioning and detention warrant from an issuing authority. A questioning warrant requires a person to appear before ASIO at a particular time and place for questioning in relation to a relevant terrorism offence. Questioning may occur for up to 24 hours, or 48 hours if using an interpreter. That pales in comparison to the questioning and detention warrant. Under that power, a person can be taken into custody and detained for the purpose of questioning for up to seven days. Under both the questioning warrant and questioning and detention warrant a person enjoys no privilege against self-incrimination and must not fail to give any information requested under the warrant or face up to five years in prison. A person does not have to be suspected of any wrongdoing. Rather, there must only be reasonable grounds for believing that issuing the warrant will substantially assist in the collection of intelligence—that is important in relation to a terrorism offence. Among other things, the person may be required to surrender travel documents, be subjected to strip searches and be prosecuted and imprisoned for up to five years for even disclosing the existence of the warrant itself.

These powers are clearly extraordinary—in fact, the then Attorney-General described them as such—but they were indeed for extraordinary times. Thankfully, ASIO and successive Attorneys-General have been very responsible in their use of these powers. The questioning power has been used sparingly. As at March 2018, it had been used only once since 2006 and not at all since 2010. Meanwhile, the questioning and detention power has never been used—never, not once.

Noting the extreme nature of these powers, the politicians who introduced them rightly included a sunsetting clause that would allow the parliament to consider the ongoing need for these laws as the environment changed. Now, more than 16 years after they were first introduced, we are debating whether we should extend the sunsetting provision. That is deeply disturbing on two levels. The terrorist threat in Australia has been elevated since September 2014, with our official national terrorism threat advisory set at 'probable'. As the Australian government notes, this means there is credible intelligence assessed by our security agencies that indicates individuals or groups continue to possess the intent and capability to conduct a terrorist attack in Australia. Australia and Australians continue to be viewed as legitimate targets by those who wish to do us harm and believe they have an ideological justification to conduct attacks. In the face of this threat, you would expect that this Liberal-National government would be leading the way on strengthening our defences and ensuring our national security. After all, the Minister for Home Affairs has told us that his responsibility as the home affairs minister is to do 'all that I can to keep Australians safe'. But the Australian people are fast getting used to Minister Dutton letting them down.

Mr Dutton's tenure as home affairs minister will be defined by the things he failed to do. He's failed to protect our borders. The 80,000 people who have been trafficked through our airports and exploited by criminal syndicates since 2014 are a testament to this neglect. Mr Dutton's own assistant minister, the member for Latrobe, said:

Organised crime and illegitimate labour hire companies are using this loophole to bring out illegal workers who are often vulnerable and open to exploitation. This represents an orchestrated scam that enables these criminal elements to exploit foreign workers in Australia until their claims are finalised.

Yet this government does nothing. In fact, they can't even get their story straight. Senator Reynolds told the Senate last week that this really wasn't an issue. She said, 'As the numbers increase, of course we will get an increase on all sorts of categories of people arriving …' She backed that up by saying, 'Between 1 January and 31 May 2019, there was a 20 per cent decrease in the number of protection visa applications lodged across all nationalities. These declining figures are noteworthy. The minister doesn't even know if the numbers are going up or down; she's contradicted herself in one answer to the Senate.

Minister Dutton has clearly failed to explain to his colleagues the severity of the situation or even its existence at all. He's also failed to provide medical care for people in his custody on Manus and Nauru and failed to show a modicum of human decency when the parliament decided to offer them the help he wouldn't. He sustained efforts to stop sick people from seeing doctors, and that will place him on the wrong side of history. He's failed to properly support his own department; Mr Dutton allowed over $300 million worth of cuts to the Home Affairs operating budget. Our ABF patrol boats are supposed to protect our territorial waters but they ended up stuck, relying on fuel rations because Mr Dutton took the razor to the department's funding. We've had boat arrivals come with him in charge.

The first boat to arrive on our shores in years occurred the very week that Mr Dutton challenged then Prime Minister Turnbull for his job—talk about taking your eye off the ball! Just last week we learned of the 40 so-called jihadis who were able to return to Australia unmanaged because Minister Dutton failed for four years to introduce a temporary exclusion order scheme to control the return of foreign fighters. The UK brought in such a scheme in 2015. Which brings us to today, where yet again we're talking about another piece of critical national security legislation that Minister Dutton has done nothing about. Even though Minister Dutton lamented in 2017 that 'Too often governments are forced to act in the midst of a crisis or its immediate aftermath,' he has shown zero capacity to take a proactive approach to national security and modernise these laws before we are in the midst of that exact crisis again.

We need reform now and the opposition is not alone in holding this view. Over the past three years, ASIO itself, three independent national security legislation monitors and the Parliamentary Joint Committee on Intelligence and Security, which has a Liberal-dominated membership, have all said these powers are in need of reform. This call for reform should not be surprising. After all, the questioning and detention warrant power has never been used. It has played no role in keeping Australians safe. Review after review has found that laws like this have no place in a modern liberal democracy like Australia.

In 2016, the honourable Roger Gyles AO QC, appointed by Tony Abbott as the independent national security legislation monitor, concluded that no case could be made for the questioning and detention warrant power and described it as 'odious'. The previous independent national security legislation monitor, Brett Walker SC, and the current monitor, James Renwick QC, also agreed that the laws should be repealed. A unanimous bipartisan report by the Andrew Hastie led Parliamentary Joint Committee on Intelligence and Security recommended that the power be repealed and that the government ensure appropriate amendments made to the questioning power. This was a position supported by ASIO itself when the Parliamentary Joint Committee on Intelligence and Security was told by ASIO that it supported the repeal of the questioning and detention power—again, a power that has never been used. ASIO said it needed significant reforms to the questioning warrant power to provide it with the tools it needs to keep Australia safe. ASIO has requested amendments that would enable the questioning power to be used for purposes beyond intelligence gathering in the specific context of counterterrorism, such as in instances of espionage and foreign interference matters.

We have a great deal of unanimity here. Three independent national security legislation monitors, the bipartisan intelligence and security committee of the parliament, and ASIO itself have all said that we must change these laws. They have requested those changes because they want to keep Australians safe. The PJCIS specifically requested that the powers be fixed by no later than 7 September 2019. Now, with that deadline looming, what has been the response from the home affairs minister to this request? His response has been nothing. He has not done anything to reform these laws to give ASIO the powers they want and need.

This is simply not good enough; in fact, it's incompetent. The coalition are once again seeking an extension of these powers, despite having been in government since 2013. The time line the minister has worked to could only be described as glacial. One thousand days ago the Tony Abbott-appointed independent national security legislation monitor said that change was needed. 800 days ago the Parliamentary Joint Committee on Intelligence and Security commenced their work, with the member for Canning clearly making the case that the powers deserved close scrutiny. 430 days ago the Parliamentary Joint Committee on Intelligence and Security delivered their carefully considered bipartisan report, which concluded that reform was desperately needed. The committee generously provided the government with more than a year to introduce legislation into this parliament to fix this issue.

What the parliament gets today with this bill is an IOU on our national security legislation. Make no mistake: the opposition understands that getting national security legislation right is hard and complex work. But, with some 17,000 employees and more than a thousand days notice, it beggars belief that the Minister for Home Affairs still needs another 365 days to get this legislation right. I note that the minister said in his second reading speech that 'this government is unwavering in its commitment to ensure Australia's counter-terrorism and national security framework continues to be as robust and responsible as possible.' I wonder how many ASIO officials, independent national security legislation monitors or members of the PJCIS would be willing to describe Minister Dutton's efforts as 'robust and responsive' today?

Actions speak louder than words. It is clear that, despite the bluster, Minister Dutton is simply not up to the job of managing our national security. Rather than following the will of the national security community, Minister Dutton has missed another deadline, one that could have serious consequences for the safety of our community. It would be shocking if it hadn't become so commonplace. An inability to complete the core responsibilities of his role has become the defining trait of Mr Dutton's time in the Home Affairs portfolio. As a result of either his own incompetence, his contempt for this parliament and our foundation on democratic principles, or both, the Minister for Home Affairs and his Prime Minister have unconscionably sought to place the parliament of Australia in a very difficult position. The parliament must now choose between rejecting the bill, thereby leaving ASIO without any questioning power at all for however long it takes government to get its act together; or agreeing to the bill and, in so doing, leaving an extraordinary, odious and totally unnecessary power on the books for another year.

Labor will not help the government cover up for Minister Dutton's incompetence; but nor will we allow ASIO and the Australian people to bear the consequences of the government's apathy and laziness. Minister Dutton and the Prime Minister like to frame issues of national security as if they're some sort of test for Labor. The only test for national security legislation—for this legislation—in this place should be the national interest.

This bill today is a report card on the government's ability to keep Australians safe, and there is a huge fail next to the names of Minister Dutton and the Prime Minister. They have failed this test of the national interest. That is why we are proposing to amend the bill to extend the sunset date on the questioning power—a power ASIO has used before and for which there is a continuing need—by three months. This will give Mr Dutton and his department 90 more days on top of the thousand days they have already had to propose a revised questioning framework, which is simply the thing requested of them by our national security agencies so they can do their job. Our amendment will also repeal, to use Roger Giles' phrase, the odious questioning and detention power—a power which has never been used and which no-one can justify why it should remain in Australian law.

Both the Labor Party and the coalition have a long tradition of working together to ensure Australia's national security legislation is fit for purpose and has the right safeguards in place. By effectively rejecting the PJCIS's recommendations with a wave of the hand, this bill constitutes a serious breach of the bipartisan working arrangement between the government and the Labor Party, which has been premised on an understanding that the recommendations of the Parliamentary Joint Committee on Intelligence and Security are to be respected and implemented. This is becoming a worrying trend. We call on the Prime Minister to exercise his authority by making clear to his home affairs minister that he has to lift his game and to recommit his government to working with the parliament to ensure that Australia's national security legislation is working.

Make no mistake: even ASIO does not want the home affairs minister to retain the questioning and detention powers on the books. These powers—the questioning and detention warrant and the questioning warrant—are two incredibly blunt instruments that exist beyond the realms of what we expect in a modern democracy, and they are simply not fit to task to protect Australians against modern and emerging threats. What ASIO actually wants is reform: powers that are shallower but wider, powers which better reflect the nature of our current climate and the unique challenges posed within it. Because of the complete and utter apathy of the home affairs minister, ASIO won't get that today. Frankly, to borrow a phrase, expecting minister Dutton to fix this legislation by 2020 would be the ultimate triumph of hope over experience.

And so this parliament is caught between a rock and a hard place. This bill has some elements that are necessary and some that are not. That's not just our view; it's the same view that's been held by experts. We move amendments to this bill because the home affairs minister is asleep behind the wheel of national security and we cannot rely on him or this government to do the right thing. ASIO cannot wait any longer. Time is up. I cannot imagine the disappointment some must feel within our national security agencies when they see the issues Mr Dutton is choosing to spend his time and effort on. He isn't prioritising the powers that our agencies need and he's certainly not prioritising ordinary Australians and their safety.

I call on the crossbench and those opposite to support this amendment today. The amendment does three things. It takes away an odious power. It forces the government to provide ASIO with the powers that they actually want and need. And it serves as a reminder to Minister Dutton he cannot keep ignoring the fundamental responsibilities of his job. We cannot keep kicking the can along the road out of deference to a minister who has shown no appetite to help our national security agencies keep Australians safe.

10:34 am

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

The Greens have opposed this draconian legislation since its introduction in 2003. It was an unjustifiable and unnecessary overreach then and it's an unjustifiable and unnecessary overreach today, and that's why we'll continue to oppose this legislation.

This bill we're debating today, the Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019, will extend the operation of special powers relating to suspected terrorism offences in division 3, part III, of the Australian Security Intelligence Organisation Act 1979, the ASIO Act, to 7 September 2020. The Gilbert + Tobin Centre of Public Law is just one of many expert legal stakeholders that have argued that the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 was the most controversial piece of antiterrorism legislation passed by the Commonwealth parliament. Whether or not that remains the case today, with so many bills that deny fundamental human rights having been passed by the parliament since then, I'm not too sure, but it is still a very bad piece of legislation. In a 2016 report to parliament by the Independent National Security Legislation Monitor, the Hon. Roger Gyles AO, QC found the measures:

… are not proportionate to the threat of terrorism and are not necessary to carry out Australia's counter-terrorism and international security obligations.

This echoes concerns raised by the Public Interest Advocacy Centre in 2005, which also considered the powers inappropriately vested in ASIO, which is, of course, an inherently secretive organisation. Both reports recommended repealing these powers.

Before I go on to speak about the legislation itself, it's worth noting that if Australia had a strong charter of rights or bill of rights or human rights act this legislation could not exist. That's why similar legislation does not exist in our Five Eyes partners: the United Kingdom, the United States, Canada and New Zealand. None of those countries have legislation that is even broadly similar to this legislation, because, with their constitutional and legislated rights, this legislation simply could not exist in those countries. This is one of the many reasons why Australia needs its own charter of rights. Not only are we the only member of the Five Eyes countries without enforceable human rights protections at the federal level, we are also the only liberal democracy in the world without a human rights act or charter of rights.

This bill would continue in legislation a system of warrants that permits the Australian Security Intelligence Organisation to question and detain nonsuspects for the purposes of gathering intelligence about terrorism offences. This is a system that provides for the issuing of questioning warrants and questioning and detention warrants in relation to—and these can be pretty tenuous relationships—suspected terrorism offences where other means of collecting the relevant intelligence may not be effective. It is unique in liberal democracies around the world because it establishes a system, known as the special powers regime, that allows a national security agency to coercively question and detain a non-suspect citizen.

The main difference between a questioning warrant and a questioning and detention warrant is that a person issued with a questioning and detention warrant is able to be taken into custody, while a person issued with a questioning warrant is not. Where a questioning warrant can be immediate or after notification, a questioning and detention warrant is immediate. So, under a questioning and detention warrant, someone can basically be taken off the street without warning, held and interrogated without being a suspect in any crime. With a questioning and detention warrant, a non-suspect citizen as young as 16—so we are talking about children here—can be detained for an investigation period of 24 hours followed by seven days of detention for questioning. That is a total of up to nine days in detention without charge, even if they're not suspected of committing any crime themselves.

The reach of this legislation is not limited to people suspected of being involved in committing or planning to commit a terrorist offence. Under this legislation, a person who's not suspected of being involved in any way in a terrorism offence—that is, a nonsuspect—can be detained for longer than someone who actually is suspected of terrorist activities and is held for questioning by the Australian Federal Police under the Crimes Act 1914.

Then there are the criteria for both the questioning warrants and the questioning and detention warrants. Applications for questioning warrants and questioning and detention warrants are drafted by the director-general of ASIO and, if given consent by the Attorney-General, the application is then made to an issuing authority. Unlike the Attorney-General, who must be satisfied of five criteria, the issuing authority need only be satisfied of two criteria; whereas the criteria the Attorney-General must consider include the non-suspect's access to legal representation, reasonable grounds for questioning and detention, and consideration of alternative methods of collecting the intelligence. The only two criteria the issuing authority must be satisfied of are that the application is in the proper form and the Attorney-General's consent was properly obtained and that there are reasonable grounds for believing that the warrant may substantially assist the collection of intelligence that is important in relation to a terrorist offence.

As Burton, McGarrity and Williams argued in a 2012 paper published in the Melbourne University Law Review, the first criteria for the issuing authority does not require or allow a re-examination of the Attorney-General's decision that there were, or were not, other methods of intelligence gathering available, with the second criterion setting an unjustly low threshold for the issuing of a warrant because:

First, 'intelligence' is not defined in, or otherwise limited by, the legislation. Secondly, the collection of intelligence must only be 'important' (not 'necessary'). Thirdly, the person subject to the warrant need not actually possess any intelligence. Rather, it need only be believed that issuing the warrant will substantially assist the collection of intelligence: for example, the person may be able to point ASIO in the direction of someone who might possess such intelligence. Fourthly, 'in relation to' goes significantly beyond what might be regarded as the main aims of the Special Powers Regime, being to either prevent terrorist acts or enable the prosecution of terrorism offences. … Finally, the criterion adopts a generalised approach. It does not distinguish between: past, present or future offences; offences that are likely or unlikely to occur; and serious or relatively minor offences.

The combination of those five extremely low bars means that a non-suspect may be subjected to coercive questioning without any suspicion of wrongdoing on his or her part. Compounding these risks to fundamental human rights, the special powers regime also lacks adequate protection against self-incrimination, lacks appropriate access to legal advisers and lacks effective reviews and remedies—again, for Australian citizens, including in some cases children as young as 16 who are not suspected of committing any crime.

Our country's very quick to call out human rights abuses by foreign nations, as we've rightfully condemned the arrest and detention by China of Australian citizen Dr Yang Hengjun for his political views, yet this legislation we're looking to extend today is the kind of flat-out abuse of human rights that we're very quick to criticise other countries of but are ourselves very poor at delivering. There are many other examples I could go to, including the rampant abuse of human rights of refugees and people seeking asylum who've been detained on Manus Island and Nauru for over six years now.

As I said earlier, this legislation was overreach from the day it was drafted, which was just after the Bali bombings in 2002. Those bombings were a despicable and horrific event, but you don't save Australians by stamping out the Australian way of life and by trading away our freedoms that so many who came before us have fought and died to protect. But even legislators at that time must have been worried that this was an overreach because, of course, the initial legislation contained a sunset clause that would have seen these draconian new powers expire after just three years. History shows you that rights, once taken away, are very difficult to get back, and in 2006 the parliament renewed these powers and added a new 10-year sunset clause. Then, in 2016, the sunset clause was extended again, and again in 2018, and now here we go again.

It's worth pointing out that powers like these, once granted, tend to be abused. I'll just give one very quick example of the metadata retention laws that were passed by this parliament a few years ago. The government at the time argued that they were necessary to ensure the safety of Australians and the counterterrorism activities of the government. What do we find now? Those very laws have been used by local councils to bust people for having unregistered pets. I mean, seriously? If you want to talk about bracket creep, it's one of the biggest bracket creeps you'll ever want to see: counterterrorism laws used by local governments to prosecute people for having unregistered pets. Give us a break, please!

In 2016, with the second sunset clause almost expired, the Independent National Security Legislation Monitor reviewed the legislation and recommended that subdivision C of division 3 of part III of the ASIO Act relating to questioning and detention warrants should be repealed or cease when the sunset date was reached, that successive extensions of the sunset dates since 2006 should end and that the balance of division 3 of part III of the ASIO Act should either be repealed or not extended beyond the present sunset date. These powers should never have been created in the first place, but, considering they were, we totally agree with the view expressed in 2016 by the Independent National Security Legislation Monitor.

In 2018, the Parliamentary Joint Committee on Intelligence and Security also recommended the questioning and detention warrants be abolished. That same year the Parliamentary Joint Committee on Human Rights found questioning warrants and questioning and detention warrants were likely to be incompatible with human rights. As I said earlier, here we go again: a government ready and willing to trample all over these fundamental human rights once more.

As was argued in 2003, when these powers were first debated, these provisions potentially allow for the mistreatment of ethnic minorities in Australia, the suppression of dissent and the detaining and investigation of wholly innocent Australians.

An ideological struggle in favour of democracy and freedom cannot be won by giving up democratic values, freedom and respect for civil liberties.

Who argued that in 2003? Who have I just quoted from? The now Leader of the Opposition, Mr Anthony Albanese. I'm going to repeat the last bit that Mr Albanese said back in the day:

An ideological struggle in favour of democracy and freedom cannot be won by giving up democratic values, freedom and respect for civil liberties.

The Australian Greens couldn't agree more with Mr Albanese's position back in 2003, but I suspect we're about to fundamentally disagree with the position that the Australian Labor Party will today take on this legislation, because even though they're going to move amendments, which by the way the Australian Greens will be supporting, I predict that they will collapse in a screaming heap and vote in support of the government, when their amendments inevitably fail, in order to pass this legislation.

We do need to end the unquestioning bipartisanship on so-called national security issues. It is that bipartisanship that has been part of ensuring that over 200 pieces of legislation have passed through state, territory and Commonwealth parliaments in the last two decades that erode fundamental rights and freedoms in this country. We need to break down the closed doors of the Parliamentary Joint Committee on Intelligence and Security and ensure that the crossbench has membership of that committee.

It's also time for a new national security white paper so that we can have an informed debate as a country about the appropriate balance between keeping people safe in Australia and protecting our rights, freedoms and liberties. We should also properly fund the Independent National Security Legislation Monitor so that it can examine and report on new legislation in a timely way. By the words 'in a timely way', I mean before it's actually debated by this parliament so the debate and the decision-making of this parliament can be informed by the views of the Independent National Security Legislation Monitor.

We should also break up the Department of Home Affairs, which has led to an unprecedented consolidation of power under Minister Dutton, who has continually shown a disregard for the rule of law and a propensity to rampantly abuse human rights. We need to also strengthen protections for public interest whistleblowers. Since Australia remains the only liberal democracy in the world without a charter or bill of rights, we should of course enshrine our fundamental freedoms in law as a first step to where we should be ultimately aiming to get, which is an enshrining of rights and freedoms in our Constitution.

So, I say to senators today: please don't support this legislation. It's another step in the slow zombie shuffle that bipartisanship on national security has taken down the road to a surveillance state and a police state in this country. These are extremely dangerous powers. They should never have been created. But, given that we are where we are today, this bill should not pass, these powers should sunset and the Australian people should get back some of the rights and freedoms that this series of legislative amendments has removed from them.

10:50 am

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

In the aftermath of September 11 this parliament voted to give ASIO a range of extraordinary powers in response to extraordinary times. Since then, the two powers that are the subject of the Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019 have remained largely unused. The questioning power has not been used since 2010 and had been used only once before then. The questioning and detention power has never been used.

There is overwhelming consensus that reform is needed. In 2012 the then Independent National Security Legislation Monitor, Mr Bret Walker, recommended that the questioning and detention power be repealed and the questioning power be amended. In 2016 the next Independent National Security Legislation Monitor, the Hon. Roger Gyles, said the same thing. Recently, the current Independent National Security Legislation Monitor, Dr James Renwick, told the Parliamentary Joint Committee on Intelligence and Security that he agreed with his predecessors.

They are not alone. ASIO has said that it also supports the repeal of the questioning and detention power and called for amendments to the questioning power. The government-controlled PJCIS, chaired by Mr Hastie in the other place and of which I was and remain a member, recommended in March last year that the questioning and detention power be repealed and that the government develop legislation for a reformed questioning power by the end of 2018. They have not done this. Instead, they fronted up to parliament and requested a further 12-month extension of the sunsetting provisions.

Let's be clear about what it represents. The government has failed to meet its own timetable to provide ASIO with the powers they have requested. This government seems to care more about briefing the media about national security than about doing the homework to keep Australians safe. Responsibility for this rests with the Minister for Home Affairs, Mr Dutton. This legislation gives the government another 12 months to try to do what they should have done years ago: remove a power that is not needed and reform a power that is. They should use the time wisely.

10:52 am

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

The Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019 amends the Australian Security Intelligence Organisation Act to extend the operation of ASIO's questioning and questioning and detention powers in division 3 of part III of the ASIO Act for a further 12 months. At the outset, I will say that Centre Alliance supports the clear and bipartisan recommendations of the Parliamentary Joint Committee on Intelligence and Security and successive Independent National Security Legislation Monitors that ASIO's current detention powers should be repealed.

Subdivision B of division 3 of the ASIO Act sets out the process by which ASIO can obtain a questioning warrant. A questioning warrant requires a specified person to appear before a prescribed authority for questioning under the warrant immediately after the person is notified of the issue of the warrant or at a time specified in the warrant. Subdivision C of division 3 sets out the process by which ASIO can obtain a questioning and detention warrant. This warrant authorises a person to be taken into custody immediately by a police officer and be brought before a prescribed authority immediately for questioning under the warrant for a period of time specified in subsection 34G(4).

These questioning and detention powers—ASIO's so-called special powers—have been the subject of much discussion and debate in the parliament on and off for about 17 years. The very fact that we are debating this bill today shows just how hard it is to wind back any national security powers that have been granted by the parliament to the executive. Even when successive independent reviews have recommended that those powers be revoked, we still see no action.

No-one should doubt the extraordinary powers that are under consideration today. They might have been on the statute books for more than 16 years, but they are still extraordinary and an affront to the principles once thought to be sacrosanct. ASIO's questioning and detention powers establishes a regime in which Australian citizens who are not subject to any charge can be effectively arrested and subjected to compulsory questioning without the right of silence, while being held in incommunicado detention. That's what is involved here: arrest and detention without charge and interrogation without the right to silence.

When the Attorney-General, Daryl Williams, introduced the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 in March 2002, he described these powers as extraordinary and a measure of last resort in dealing with terrorist threats. More recently in his 2016 review of ASIO's detention powers, the Independent National Security Legislation Monitor, Roger Gyles QC, observed:

A warrant enabling a person to be 'detained in custody, virtually incommunicado without even being accused of involvement in terrorist activity, on grounds which are kept secret and without effective opportunity to challenge the basis of his or her detention', … is an extraordinary power. Further, the decision on whether the grounds to make a QDW [questioning and detention warrant] application rather than a QW [questioning warrant] application lies with a member of the executive. No precedent in any comparable country has been identified.

Professor George Williams of the University of New South Wales has supported this observation, submitting to the Parliamentary Joint Committee on Intelligence and Security:

… there is no other comparable nation in the world that gives a coercive questioning power, let alone a detention power, to an intelligence agency of this kind.

Professor Williams suggested that other Western nations have taken the view that compulsory questioning powers are best left to law enforcement agencies, which operate in more open and accountable ways than the secret intelligence and security agencies. He observed:

The simple reason for that is that it is thought that these [intelligence] agencies must operate with a level of secrecy. They cannot have the same level of public accountability and transparency that other bodies have. As a result, that means that extreme caution must be given as to the form of coercive powers that are issued. In this case, the decision has been given to give it a coercive questioning power that takes it beyond those other agencies.

Even with extensive safeguards, the powers provided to ASIO by this parliament in 2003 offend many legal and human rights principles.

Fortunately, these very powers have seen used sparingly. According to the 2018 Parliamentary Joint Committee on Intelligence and Security report on ASIO's questioning and detention powers, between the introduction of the powers in July 2003 and May 2018, ASIO requested and was issued with 16 questioning warrants in relation to 15 persons. In the same period, ASIO did not request, nor was issued, a questioning and detention warrant. ASIO's most recent annual report indicates no questioning warrants and no questioning and detention warrants were issued in 2017-18. There are no reports that these powers have been used in the past year.

The original legislation establishing the regime for ASIO to exercise its questioning and detention powers was the subject of three parliamentary inquiries and lengthy parliamentary debate and amendments before the passage of the bill in June 2003. At the time, the questioning and detention powers were legislated to sunset on 23 July 2006. Since that time, the sunset clause has been repeatedly amended, most recently by the Counter-Terrorism Legislation Amendment Bill (No. 1) 2018, which commenced on 25 August 2018. That bill extended the sunset date for 12 months until September 2019.

Today, in the bill before the Senate, we have the government seeking a further 12-month extension. After this week the parliament will not sit again until 9 September, two days after the current sunset clause comes into effect, so the Senate must come to a decision one way or another this week. However, this can't be a rubber stamp exercise. We would fail in our duty if we did not give careful consideration to the success of reviews that have questioned the appropriateness of the questioning and detention regime and have recommended for its repeal.

In 2005 the Parliamentary Joint Committee on ASIO, ASIS and DSD—the forerunner to the PJCIS—observed that the powers, '…should not be permanent and should be scrutinised as thoroughly as possible'.

Much of the subsequent scrutiny of ASIO's special powers has been undertaken by successive holders of the office of the Independent National Security Legislation Monitor, a post established by parliament to carefully examine our national security laws with regard to human rights principles, proportionality and unintended consequences.

In 2012 then INSLM, Brett Walker SC, conducted a thorough review of the questioning and detention powers. While Walker found that the questioning warrants were sufficiently effective to be appropriate, and in a relevant sense necessary, he held that questioning and detention warrants were an unnecessary extension of ASIO's powers and they were not a justifiable intrusion on personal liberty. Walker recommended that questioning and detention warrant provisions of the ASIO Act be repealed. He further recommended that questioning warrant provisions be amended to permit arrest of a person subject to a warrant if the police officer serving the warrant believed on reasonable grounds that there was a serious possibility that the person did not intend to comply with the warrant or that there were unacceptable risks of the person tipping off another involved in terrorism, failing to attend or destroying or tampering with evidence. These recommendations were not implemented.

In 2016 Walker's successor as INSLM, Roger Gyles QC, conducted a further review. Gyles accepted that a compulsory questioning power to gather intelligence was a useful tool for ASIO's counterterrorism work. However, he recommended that the questioning and deterrent warrants provisions be repealed or cease when the sunset clause date, 7 September 2018, was reached. Gyles observed that questioning and detention warrants:

… are not proportionate to the threat of terrorism and are not necessary to carry out Australia's counter-terrorism and international security obligations. It is time to accept that the capacity to secretly and immediately detain persons whether or not they are implicated in terrorism is a step too far.

The current INSLM, Dr James Renwick SC, has indicated that his predecessor's report and recommendations stand as the view of his office.

In its report last year, 2018, the Parliamentary Joint Committee on Intelligence and Security noted ASIO's assessment that Australia continues to face a significant threat from terrorism. In that context, the PJCIS took the view that ASIO should continue to have compulsory questioning powers. However, the committee was equally clear in expressing a negative view about ASIO's detention powers. The committee highlighted the extraordinary nature of the questioning and detention warrant regime in allowing ASIO to detain persons incommunicado, including those not suspected of involvement in terrorism offences.

In its submission and evidence to the PJCIS, ASIO requested the retention of the detention power but did not argue to keep the questioning and detention warrant regime in its current format. In the event that the current detention regime is repealed or lapsed, ASIO advised that it desires a similar ability to pre-emptively detain a person in order to ensure a person appears for questioning, is prevented from alerting others as to ASIO's inquiries and is prevented from destroying relevant material. It should be noted ASIO is still arguing for a power to detain persons incommunicado and without charge even though they haven't used the existing power.

After lengthy and careful consideration, the PJCIS recommended that ASIO's current detention powers, as set out in division 2 of part 3 of the ASIO Act, be repealed. The committee further recommended the government develop legislation for a reformed ASIO compulsory questioning framework. The committee recommended that the proposed legislation be introduced by the end of 2018 and that the committee be asked to report to the parliament no sooner than three months following its introduction. The committee considered that any proposed legislation should again include an appropriate sunset clause. Following the PJCIS's report, the sunset clause was extended for another year, but 2018 went by without any proposals forthcoming from the government. Despite the successive reviews by the INSLM and the PJCIS, no new legislative proposals have been introduced to the parliament.

Clearly, this is not been a priority for the Minister for Home Affairs, Minister Dutton. In response to the PJCIS report in April this year and, specifically, the recommendations that the detention regime be repealed, the government merely said:

The government will consider options for a reformed ASIO compulsory questioning framework.

The government further said:

The Government will work to introduce legislation to implement a reformed ASIO compulsory questioning framework in 2019.

Well, it's already the beginning of August, and there's been nothing forthcoming. The proposed extension of the sunset clause to September reflects the reality that the government is unlikely to progress reforms of the questioning warrant regime in 2019. There are only seven sitting weeks left for both houses of parliament this year. Further delay may arise from the government's consideration and implementation of any recommendations from the review of intelligence and national security legislation being undertaken by former defence secretary and former ASIO director-general Dennis Richardson. By failing to produce a substantive response to the PJCIS report, Home Affairs Minister Dutton has presented the parliament with a fait accompli, something that appears to be his preferred modus operandi.

It is far from clear that ASIO and the government are actually prepared to relinquish the detention warrant regime. They have given no commitment or undertaking at all in that regard. Indeed, ASIO have argued for a continuing detention regime, and, in evidence to the PJCIS, they constructed scenarios in which they contemplated using a questioning and detention power, including in relation to persons of security interest who might return to Australia through a return permit under the new temporary exclusion order scheme. The proposed further 12-month extension could be little more than an effort to keep the issue in a holding pattern while the government works on proposals that will, in effect, reject—I repeat, reject—the recommendations of the INSLM and the bipartisan PJCIS. After all, it's now clear the government has little regard for bipartisanship on national security issues and little regard for the role of parliament in overseeing this vital area of public policy and administration.

Centre Alliance believe that, one way or another, the government should put its cards on the table; at least then we can see its intent and proposals. Parliament can then consider a reformed questioning warrant regime. Accordingly, Centre Alliance is prepared to support the Labor opposition amendment that provides that the provisions for questioning and detention warrants will lapse on 7 September. This is appropriate, given the advice of three Independent National Security Legislation Monitors and the PJCIS. Labor's amendment further provides for an extension of the three months only to 7 December 2019 for the questioning warrant powers. The government has already had ample time to develop legislation to provide for a reformed questioning warrants regime. Three months should suffice for the PJCIS to review those proposals and for the parliament to consider the legislation before the end of the year. Of course, we'll be interested to see the government's response to Labor's amendment, and, indeed, Labor's response in the event that their amendment does not pass the Senate or else is rejected by the government in the House of Representatives.

Let me describe what's happening here with all of this national security legislation, and I'll put it in really simple terms. Senator McKim was wrong when he said that Peter Dutton was asleep at the wheel; he's actually running on adrenaline. It's like he's in the big red security car, driving down the road, swaying from side to side, oblivious to the collateral damage, not looking in the rear-vision mirror, and he's got Labor senators sitting in the car saying, 'No, we're going the wrong way; there's a better way to do this.' But in the end they get to the finish line and Labor cheers and carries on about getting across the line, and then, despite being frustrated with Minister Dutton and his big red car, they jump back in for the next ride when the next piece of national security legislation comes up. That's what's happening here, in simple terms.

If parliament does pass this bill as it stands and gives Minister Dutton another 12-month free pass, I can put on the table now and inform the parliament that Centre Alliance will not support any further extensions of the sunset clause in the life of this parliament. It is an old but vital legal maxim that there should be no detention without charge. One way or another, this quite disproportionate power will have to be brought to an end. The sooner that happens, the better for democracy.

11:11 am

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

I rise to speak in support of the Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019. Government has three key roles: protecting life, protecting property and protecting freedom. As servants to the people of Queensland and Australia, we will make sure that those roles are fulfilled. The government seeks to extend, in this bill, the provision for 12 months, already in place, to be able to detain and interview people. The underlying position is to keep our people safe. As servants to the people of Queensland and Australia, we need to keep people safe.

The people that we and the government want to protect us from are extremists, including Islamic extremists, who do not have respect for life; they are barbarians. The bill aims to protect the security of Australian citizens, because there is primacy in border security. Border security is one of the most fundamental responsibilities of a federal government. Australia had tight borders, thanks to Senator Hanson's strong position on border protection, back in the nineties. She forced the Howard government to listen to the will of the people, and the Howard Liberal government stood up. Then Labor Prime Minister Kevin Rudd weakened border security, and that led to the deaths of over a thousand illegal boat people, including innocent women and children.

In 2016 Senator Hanson and I were given a presentation by Mr Dutton's office on what had been accomplished under the Abbott government's border protection measures. It was truly amazing. We saw that the number of boats had plummeted to zero and, as importantly, the number of genuine refugees had increased. Instead of illegal immigrants taking the place of genuine humanitarian refugees, we had the opportunity to bring in genuine humanitarian refugees.

Here are some statistics that show that terrorism is a clear and real threat to Australians and their way of life. Since 2001 there have been 73 Australians convicted of terrorism related offences; 50 are currently in jail. About 100 Australian terrorists have died in the Middle East, fighting for ISIS. They're not our friends; they're our enemies. They're the enemies of freedom, the enemies of civilisation. We've had seven terrorist attacks in this country and at least 16 major counterterrorism disruption operations in response to the planning of potential attacks in our country—16 plus seven. The figures are terrifying in light of the thousands of deaths of Australians that could have occurred. One of the scariest statistics is that our national terrorism threat level is at 'probable'. Probable—a major terrorism attack in this country.

I want to honour, on behalf of One Nation and the people of Queensland, the fine, vigilant people in our border security and counterterrorism forces. But they need all the help they can get. They need that help to get access to some of the potential threats. Indeed, we in parliament, including Senator Keneally, are protected daily in this building and elsewhere by people such as our security forces in this country. Not just the people we see, not just the people carrying guns, not just the people who are willing to put their life on the line, but the people behind the scenes and in the back rooms, doing counter-terrorism operations.

I want to diverge slightly and come back to this point. In the days when it stood for Australia, the Labor Party was strong, very strong, on border protection. Ever since it started mimicking the leftovers known as the Greens, it has become a Clayton's Labor Party. As the UN's useful idiots, the leftovers known as the Greens want to end Australian sovereignty. That is a goal that involves ending border security, as is already seen in the European Union—which is not really a union—where sensible leaders of free nations are now standing up across the European continent and rejecting the European Union's commissars, or, indeed, leaving the European Union. So I now want to put some of Labor's actions in perspective. Labor's constitution has long stated:

The Australian Labor Party is a democratic socialist party and has the objective of the democratic socialisation of industry, production, distribution and exchange, to the extent necessary to eliminate exploitation and other anti-social features in these fields.

It sounds admirable. But I detest socialism, because it has had a zero success rate for almost 150 years. Yet I still honour the legacy of the original Labor Party, members who were genuinely doing what they thought best in the interests of our country—deluded, maybe, but noble in intent. They had many achievements driven with that intent to look after our country and to maintain our sovereignty and to provide governance. I think of the Snowy Mountains scheme. I think of the fairness that the Labor Party—the old Labor Party—brought in. But today's Labor is a far cry from the noble Labor of old. Today's Labor is opportunistic, dishonest and deceitful. And, while there are honourable Labor senators in this place, the fact is that the party is under the rule of powerful backroom party powerbrokers whose goals are personal power and control.

Socialism extends to control. It always leads to control—always. And we can see it in the Labor Party, and we can see it in the Greens. Do I need to remind anyone of Hitler, Stalin and Mao? And now we see Senator Keneally emulating these control freaks, these mass murderers, and wanting to ban a Muslim who speaks against radical Islam. She wants to stop the CPAC conference about to be held in Sydney next week. It's a festival of freedom, but the Labor Party wants to ban it. I understand that, reportedly, the Labor Party 'has called on the Morrison government to deny Mr Kassam a visa after he called the Koran "fundamentally evil"'. Should we ban Labor conferences because their platform says they are still socialist? Should union meetings be banned because they're filled with old time communists? We say no. We say let the union meetings continue. We say let Labor Party conferences continue. Because One Nation, and most Australians, support and value freedom of expression. Yet under Labor's logic, socialist conferences and parties and unionists would be banned, because socialism leads to control and mass murder. This is not right—

Photo of Alex GallacherAlex Gallacher (SA, Australian Labor Party) Share this | | Hansard source

Resume your seat, Senator Roberts. A point of order, Senator Faruqi?

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

Mr Acting Deputy President, my point of order is for you to ask Senator Roberts to withdraw the comments that he made which implied that Senator Keneally emulated a mass murderer. I think that's completely unparliamentary.

Photo of Alex GallacherAlex Gallacher (SA, Australian Labor Party) Share this | | Hansard source

Senator Roberts, I would ask that you reflect on your contribution in the chamber in this particular matter, and it may assist the chair if you were to withdraw the allegations which have been made against Senator Keneally.

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

I had no intention of implying in any way that Senator Keneally wants to be a mass murderer. My intention was purely to show that she wants to control freedom in this country, which is something that the mass murderers did. The mass murderers are known for murdering tens of millions of people but their No. 1 fundamental activity was to suppress freedom. That is what Senator Keneally is doing, and I will go on to explain that. I hope that clarifies it.

As it is, the socialist Left is taking over our institutions, our Public Service, our universities and our nongovernment organisations and are destroying freedoms using the tactics of Saul Alinsky. I note the irony that the Jewish lobby provides funds to set up the CPAC, yet opponents of CPAC, opponents of freedom and opponents of free speech call CPAC anti-Semitic. That shows me they have no argument, no logic and no data. They cannot respond, so they label and they blame. That is something that I've discussed elsewhere.

What happens is they create, in the left in this country, a victim. They create a problem. Then they create opponents and perpetrators. Then they want to attribute blame. And then, to avoid argument and to suppress speech, they label, blame and hide behind political correctness. That's the new form of control. It is no longer jackboots, rifles and tanks; it is labels, smears and innuendos.

When opponents resort to name call—racist or anti-Semitic—it confirms they lack data and a logical, coherent argument. I'm not the only one calling Senator Keneally to account. Donald Trump junior has blasted Senator Keneally for wanting to ban Raheem Kassam, who is the editor in chief of Breitbart, to keep him from Australia. Yes, some of Kassam's comments are questionable, yet he is merely using the tactics of the Left. Senator Cormann spoke against Kassam, and yet he agreed on freedom of speech.

I want to commend CPAC next week and encourage people to attend. I want to applaud Andrew Cooper and LibertyWorks for organising the conference. While they thank Senator Keneally for her free advertising, I say it is a blight on Labor and our Senate and our parliament. One Nation and I support it. Therefore, we support this bill, because it protects life and protects freedom.

11:22 am

Photo of Michaelia CashMichaelia Cash (WA, Liberal Party, Minister for Employment, Skills, Small and Family Business) Share this | | Hansard source

I rise to sum up the debate on the Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019. In making some brief comments, as I sum up the debate, I just want to set the scene with three points. Australia's current national terrorism threat level is probable. Since September 2014, when the national terrorism threat level was raised, there have been 16 major disruption operations in relation to imminent attack planning. The Director-General of security has said that it is important to temporarily extend the provisions in the current legislation to ensure there is no capability gap, whilst the parliament considers a new bill.

This government will never apologise for making national security a fundamental priority. Keeping Australian communities safe, protecting Australia and Australians from those who seek to do us harm is and will continue to be the government's No. 1 priority. An important way the government achieves this is by ensuring that our national security agencies have the powers they need to do this important job. The government has introduced the Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019 to ensure ASIO retains key counterterrorism powers whilst broader reforms are progressed. ASIO's current questioning and detention powers are due to sunset—that is, come to an end—on 7 September 2019. These powers themselves are rarely used, but they are crucial. The powers enable ASIO to detain and question persons of counterterrorism interest. I'll just say that again, so that everybody understands what these powers enable ASIO to do: to detain and question persons of counterterrorism interest. The powers themselves have been used in the past to prevent terrorism in Australia. I'll just say that again, to make it clear to the chamber what we are talking about: the powers have been used in the past to prevent terrorism in Australia.

What this bill will do—and it's a very simple bill—is ensure that ASIO retains its strong counterterrorism capabilities while the government progresses more-detailed reforms to ASIO's questioning and detention powers. As the chamber would know, this follows reviews by the Parliamentary Joint Committee on Intelligence and Security and the Independent National Security Legislation Monitor. The passage of this bill does a very, very simple—but important—thing. It will extend the sunset date—that is, the finishing date—of ASIO's questioning and detention powers by 12 months, as I've said, until 7 September 2020. The bill does not amend ASIO's existing powers in any way, and the powers that we are extending by 12 months will continue to be subject to the strong safeguards and oversight mechanisms.

The committee has reviewed these powers extensively, tabling its report in May 2018. The committee itself recommended that the sunset date be extended by 12 months to enable the committee adequate time to consider a reformed compulsory questioning framework. While the government accepted this recommendation in principle, it has always been clear that reforms to ASIO's coercive powers require careful thought and extensive stakeholder consultation to ensure that the reformed framework is appropriate, adapted and fit for purpose and that it can adequately address both current and future security threats.

Extension of the sunsetting provision will ensure that the legislation will not be rushed and that ASIO will continue to have these coercive powers available should they need to be exercised. Extension of the sunsetting provision will also ensure that, once the government brings these reforms before parliament, the Parliamentary Joint Committee on Intelligence and Security will have sufficient time to scrutinise the proposed reforms. This is consistent with the committee report in May 2018, in which the committee itself was clear that it would need a considerable amount of time to consider reforms to ASIO's questioning powers.

To conclude, the bill will ensure that ASIO continues to have the powers required to address the ongoing threat of terrorism and keep Australians safe. It will also ensure that reforms to these powers recommended by the Independent National Security Legislation Monitor and the Parliamentary Joint Committee on Intelligence and Security are introduced into the parliament in time for adequate consultation through the committee process. Again, the Morrison government and in particular our minister, Peter Dutton, make no excuse for protecting Australia and Australians—for keeping Australian communities safe from those who would seek to do us harm. That is and will continue to be the government's No. 1 priority. I therefore commend this bill to the Senate.

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

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