Carol Brown (Tasmania, Australian Labor Party, Shadow Assistant Minister for Infrastructure and Regional Tourism) | Link to this | Hansard source

I rise in support of the Crimes Legislation Amendment (Police Powers at Airports) Bill 2019. Airports are hubs of activity and so can become focal points for serious and organised crime groups, including those involved in the illicit drug trade; and high-profile targets for terrorist organisations. As such, it is appropriate that the powers police can employ at these locations are reviewed periodically and, if necessary, updated to reflect the ever-changing threat environment.

The bill before the Senate does exactly that. This bill will allow the AFP to direct a person to produce evidence of their identity; direct a person to leave the airport or any other specified major airport, and/or direct a person to take a specified flight or any flight from these airports for up to 24 hours; or direct a person to stop or do anything else necessary to facilitate the identity check or move-on direction. These powers can only be used in appropriate circumstances, such as where a constable or protective services officer suspects on reasonable grounds that a person has committed, is committing or intends to commit an offence against a law of the Commonwealth or a territory, or a law of a state having a federal aspect and punishable by imprisonment for 12 months or more. A move-on direction must be provided in writing and requires the authorisation of a senior police officer if the direction is for 12 hours or more. This is an important safeguard built into the legislation.

I note the history of this legislation and the role that the Parliamentary Joint Committee on Intelligence and Security played in shaping it. In its original form this bill had a number of issues, including poor drafting and a lack of clarity around the powers that it introduced. The PJCIS made a series of recommendations to the government after the conclusion of its inquiry into the bill. These recommendations sought to address many of the key concerns raised by civil society organisations, such as ensuring that the measures introduced by this bill could not be used to disrupt peaceful assembly or protests, and to provide clarity around the powers generally.

To its credit, the government has agreed or agreed in principle to every recommendation the committee made. The version of the bill before us today is clearer and more effective than the original version, and for that reason the bill is more likely to achieve its objectives and enjoy public confidence. It's a timely reminder that, when the PJCIS is at its best, it is a deliberative bipartisan body which positively influences our legislative process and ensures that the Australian people can have greater confidence in our national security laws and agencies. I commend the work of the committee and its members for their efforts, which resulted in important changes to this bill.

Labor will always be cooperative and constructive when it comes to ensuring that our hardworking police are fully supported in their work to keep Australians safe, and that is why we support this bill. Given the nature of these new powers, Labor believes it is important that the government reassure the parliament that it will take the necessary steps to ensure appropriate transparency and annual reporting with respect to the identity check direction and move-on directional powers provided for by this bill. To that end, I note that I have questions for the minister and would ask that the bill be considered by the Committee of the Whole at the appropriate time. As such, Labor will support this bill, and I commend it to the Senate.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

I want to say at the outset that the Greens will not be supporting the Crimes Legislation Amendment (Police Powers at Airports) Bill 2019. It joins the list of more than 200 pieces of legislation that have passed through state, territory or Commonwealth parliaments in Australia in the last two decades that have eroded fundamental rights and freedoms in this country. If this bill does anything, it mounts a living, breathing argument for Australia to introduce a charter of rights in this country. We are currently the only liberal democracy in the world that does not have some form of either constitutionally embedded or legislatively enshrined charter of rights. And while we continue to lack that fundamental statement of the rights of citizens in our country then major parties—no matter who is in government—in the damaging so-called spirit of bipartisanship, will continue to erode those rights.

Now, I want to make one thing very clear at the start of my contribution here. The 2019 bill, which I'll use as shorthand for this bill, is an improvement on the 2018 bill of the same name. We still retain significant concerns, but I do want to acknowledge that the government has picked up a number of recommendations made by parliamentary committees that make this bill a less bad piece of legislation than it was when it was proposed in 2018, before the last election. The 2018 bill could have compelled people to carry ID at all times while travelling by air or, importantly, when picking up friends and family from an airport. This is despite it not being a legal requirement for people to carry ID at all times when they are in public and despite people not being required by airports or airlines to carry ID to travel by air if only travelling with carry-on luggage.

The 2018 bill could have led to situations like Operation Fortitude, which was a multi-agency operation in 2015 that would have seen Australian Border Force, police and transport officers using racial profiling to do random visa checks on people, despite there being no requirement for visa holders to carry those documents on their person. Operation Fortitude was cancelled after the public outrage which resulted from ABF's announcement of the operation.

As reported by the Parliamentary Joint Committee on Human Rights, the 2018 bill and its identity-checking and/or move-on powers would have infringed on people's rights to privacy, people's rights to freedom of movement, people's right to equality and nondiscrimination, and potentially the rights to freedom of expression and freedom of assembly. As I said at the time, there was absolutely no justification for that legislation, which I described as a papers-please legislation, and the government is yet to mount an argument as to why even this watered down version in the 2019 bill is necessary.

It's worth pointing out that the terrorism threat level in this country has not increased for over five years, yet we keep getting pieces of legislation which take away our fundamental rights and freedoms. I also make the point that the departing Director-General of ASIO, Mr Duncan Lewis, has made it very clear that in fact foreign influence and interference in our democracy is a more significant threat to our country than terrorism. And yet we've got a government that continually brings in legislation in the name of counterterrorism that erodes the fundamental rights and freedoms that, in the past, countless Australians have fought and died to protect and enhance.

Senator Duniam interjecting—

I've used the F-word, fascism, in this place in the past—and Senator Duniam can have all the chuckles that he likes, but, Senator Duniam, through you, Madam Acting Deputy President, if you don't think societies that are, on the face of it, based on principles that are espoused, in particular by the LNP, in this place—personal freedoms, for example, is one of the values we hear a lot about from Liberal and National member politicians in this place—

Senator McGrath interjecting—

I can hear Senator McGrath rumbling away in the background again, adding his two bob's worth—but if you don't think societies can transform quite rapidly from places where fundamental rights and freedoms are protected and respected into fascist states, then you are not studying human history. This can happen quickly. It's happened on multiple occasions in human history, and it starts with an erosion of those rights and freedoms and attacks on minorities. We have seen the attacks on minorities who come into this country—the people from countries including South Sudan, Iran, Iraq, Syria, Sri Lanka and many others, some of whom remain imprisoned in Papua New Guinea or Nauru and have spent over six years there now. We're seeing it in the punitive responses, for example, to people on Newstart, who are going to face the demeaning agenda of this government in requiring them to be drug tested. You attack the minorities, and when people don't fight back hard enough, it empowers those totalitarians, those authoritarians, those fascists in the government to take the next step. Unless we stand up and fight to defend these rights and freedoms, we will continue, unfortunately and devastatingly, on the slow shuffle towards authoritarianism and, ultimately, totalitarianism. That's what this legislation embodies. We're seeing it, for example, in the use of facial recognition technology. We're seeing it in regard to the lack of privacy that 10 or 20 years ago would have seen our country up in arms but now seems to be accepted by so many people because of the actions of the two major parties in this place, which have normalised this loss of fundamental rights and freedoms.

So this bill, the 2019 bill, is unwarranted, and the government has completely failed to make the case. What the improvements in this bill, compared to the 2018 bill, have done is mean that instead of a giant step down the road towards a police state we are today proposing to take a smaller step. But it is a smaller step that follows many steps before it and, no doubt, will be succeeded by many steps after it.

I want to talk about the so-called spirit of bipartisanship that exists in this place between the major parties on matters of national security. I want to say, firstly, that this bipartisanship does the Australian people a great disservice. What happens with this government, led by one of the most authoritarian control freaks in the parliament, the relevant minister, is that the government introduces a whole suite of new police powers and new powers for our intelligence and security agencies. That bill gets referred off to the Parliamentary Joint Standing Committee on Intelligence and Security, which I note again, for the record, contains no-one from the crossbench—it's a stitch-up between the two major parties. It goes into that process and, yes, I agree that that process does at times rasp a few of the roughest edges off legislation like this. But it doesn't change the fundamentals of the legislation and the dirty deals that are done in that process. Then out comes the legislation from that process. The fait accompli is then presented to the Senate, and ultimately the bill is passed with support from the two major parties.

As watchers of this chamber will know, the Greens have continually pushed back against this agenda of eroding rights and freedoms in this country. We're going to push back on it again today by opposing this legislation.

The 2018 bill followed an airport security review in 2017 that was a result of an alleged plot to bring down an Etihad Airways aircraft departing Sydney for Abu Dhabi, which was aborted before the accused reached security. But the report of that review has never been made public. So here we are again, trading off our fundamental rights and freedoms in Australia for vague and unidentified threats because it suits the agenda of the conservatives. I don't expect any better of conservatives, because as a class they're ruled by the amygdala—the lizard brain, which is the fear centre of our mind. The behaviour of conservatives—

Senator Duniam interjecting—

Senator McGrath interjecting—

There is abundant psychological research on this, Senator Duniam. I refer particularly to Senator McGrath, who's one of the obvious people in this place that is ruled by the amygdala.

Amanda Stoker (Queensland, Liberal Party) | Link to this | Hansard source

Senator Kitching, on a point of order?

Kimberley Kitching (Victoria, Australian Labor Party, Shadow Assistant Minister for Government Accountability) | Link to this | Hansard source

I would ask you to rule on whether that's an imputation on the character of a parliamentarian.

Amanda Stoker (Queensland, Liberal Party) | Link to this | Hansard source

I don't think that's a point of order.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

As I said, I don't expect anything better from the Liberal Party, but I do expect better from the Australian Labor Party. You can call me naive, you can call me an innocent if you like, but, as someone who grew up in a time when the Labor Party would have stood up for fundamental rights and freedoms in Australia, they continue to disappoint me, and I know that they continue to disappoint millions of Australians who expect and want better from the Labor Party.

The Parliamentary Joint Committee on Intelligence and Security also reported on the 2018 bill. It made nine recommendations, six of which were for amendments to this legislation and two of which were that the Australian Federal Police be required to keep and report on certain records. Most of those recommendations were implemented in this bill, including increasing the thresholds for exercise of powers from the highly subjective aviation security to the less subjective public order and safe operation; increasing accountability and oversight over move-on directions; and providing greater clarity about the status of lawful advocacy, protest, dissent and industrial actions. These changes do address concerns that were previously raised by the Australian Greens in the context of the 2018 legislation.

I want to make a brief observation around the recommendations that relate to the Australian Federal Police. The government has not, in total, accepted those recommendations. It has merely said it will update its policies and procedures to require certain records to be kept 'to enable annual reporting' but has not committed to keeping all of the records that were recommended and did not explicitly commit to publishing that information annually.

In its report on the bill we're currently debating, the Parliamentary Joint Committee on Human Rights said:

The new narrower definition of 'public order and safe operation' in the 2019 bill appears to address these human rights concerns. However, it is noted that the proposed powers to require identity information and issue move on directions remain serious from the perspective of human rights. If the bill is passed, continued monitoring of these powers, in practice, would assist to ensure that they are only exercised in a way that is compatible with human rights.

That's the view of the Parliamentary Joint Committee on Human Rights. From where the Greens stand, this bill is an attack on fundamental rights and freedoms. I believe in this place we alone will oppose it on the basis that, as I mentioned earlier in my speech, the government has comprehensively failed to make the case for this kind of draconian legislation. This bill also repeals the term 'constitutional airport' from the Crimes Act and replaces it with 'major airport', which will increase the number of airports that will be subject to these new police powers. Major airports at which the new police powers can be used will, if this legislation is successful, be determined by the minister. The Crimes Act does not contain move-on powers. Various move-on powers do exist under state and territory laws as well as the Aviation Transport Security Act, but this bill will provide move-on police powers that are broader than those under the Aviation Transport Security Act.

As I said, we accept that this bill is an improvement on the 2018 legislation, but, ultimately, the changes do not make this a good piece of legislation; they simply make it a less bad piece of legislation. This bill should have been the subject of an inquiry of the legal and constitutional affairs committee, and we're very disappointed that major parties did not support an inquiry into this legislation.

On a matter of principle, and I want to state this very clearly, you don't protect the Australian way of life by trading off rights and freedoms. That is the wrong way to go about this. When you do trade away our fundamental rights and freedoms, as we collectively in parliament have done over 200 times in the last 20 years, you actually change the nature and fabric of our country; you change the nature and fabric of our society. You take away those rights and freedoms. I understand why governments want to make the community safer, and I support the community being made safer as long as it is done in a reasonable way, but this is not a reasonable piece of legislation; it's an unreasonable piece of legislation. We have a horrendously high road toll in this country. People are dying on our roads. We could transform that to zero tomorrow by banning people from driving cars, but we're not going to do that, are we, Senator Duniam?

Jonathon Duniam (Tasmania, Liberal Party, Assistant Minister for Forestry and Fisheries) | Link to this | Hansard source

It's a ridiculous analogy.

Nick McKim (Tasmania, Australian Greens) | Link to this | Hansard source

Exactly. It's an absolutely ridiculous suggestion, isn't it? I couldn't agree more, Senator Duniam, that it's a ridiculous suggestion. Nevertheless, the point remains—when you take away rights and freedoms, you fundamentally transform our country. You've continually failed to make the case, and the only reason that you've been able to do this, which you've done on multiple occasions since the LNP came to power in 2013, is because the Labor Party has acquiesced every step of the way. I heard Mr Dreyfus from the other place this morning expressing concerns about a particular piece of 2015 legislation. Well, Mr Dreyfus, you voted for it. All the Labor members in here voted for it. The Australian Greens didn't vote for it. It's a bit late, four years down the track, to start going, 'Maybe we shouldn't have voted for it.' The one thing that would be fantastic in this space would be if whichever of the major parties happened to be in opposition at any one time ended the spirit of bipartisanship on national security. That would be, of itself, a major step forward—so that legislation would be actually considered on its merits.

Honourable senators interjecting—

I want to point out for the record that there's lots of laughter and chat going backwards and forwards between the Liberal-National Party and the Australian Labor Party at the moment, proving my very point that this is collusion between the major parties, based on the political cowardice of whoever happens to be in opposition at the time. For the last six years and for the next two, that is the Australian Labor Party.

We won't be supporting this bill. We want to see a charter of rights in Australia and, in the last term, we could not even get support from either of the major parties for an inquiry into what form of charter of rights Australia should have. That's how far away we are in this country from any enshrined protection of rights and freedoms at a national level. The lack of a charter of rights and the complicit bipartisanship on national security, taken together, mean that today we will take another small step down the road to a totalitarian police state in Australia.

Rex Patrick (SA, Centre Alliance) | Link to this | Hansard source

'Your papers, please.' That's the phrase associated with the workings of a police state. It's a catchphrase long favoured by Hollywood movies, notably Casablanca, but it's an expression that can trigger dread for those who've had the misfortune to encounter the arbitrary power of an authoritarian government. Regrettably, it's a phrase—or something like it—that we may soon hear at Australia's major airports as someone is taken aside and asked to identify themselves by the Federal Police. That will be one of the consequences, for good or for ill, of the Crimes Legislation Amendment (Police Powers at Airports) Bill 2019.

This bill was first introduced into the previous parliament by the Minister for Home Affairs, Peter Dutton, a year ago on 13 September 2018. At that time, it was declared to be an urgent measure, something that was required to remedy security deficiencies at Australia's major airports. The bill was promptly referred to the Parliamentary Joint Committee on Intelligence and Security, which delivered a report, including recommendations for amendments, to the parliament in February this year. Since then, we've had a federal election and the bill was introduced into the House of Representatives on 4 July and passed through that chamber on 12 September. So, a year on from its original introduction as an urgent piece of legislation, the bill is now before the Senate. This somewhat delayed progress through the parliament, in part—but only in part—a consequence of the election, is not uncharacteristic of much of the national security legislation that has been hastily introduced to this parliament. The government declares a bill to be an urgent matter of national security, but then parliamentary scrutiny finds numerous faults and flaws requiring amendment, redrafting and further consideration.

In this case, the bill, as originally drafted, was certainly flawed. That was especially unfortunate, because this law has the potential to have a direct impact on more Australians than many other pieces of national security legislation. Airports are a part of everyday life for many of us. We are a nation of travellers, with people flying for business and work, for holidays or to connect with family and friends across our continent or overseas.

I recall, perhaps about a month ago, during the last parliamentary break, deciding to go visit—as a senator—Coober Pedy, to the north of my state. Walking into the airport, I went through the regular security checks. I then had my boarding pass scanned and went down to a holding area, where one would normally wait for a bus, and observed four police officers standing around. They didn't say to all of the passengers: 'Please stand over against the wall; we'd really like to do some additional security checks. We're going to run a dog past you. It's really to help you with your safety.' What we got was an Australian Federal Police officer who didn't actually identify himself, although it was obvious that he was a policeman, who stated, 'Everyone against the wall and put your bags down by your feet.' Then a dog was run alongside the bags. I looked at some of the other passengers and they seemed quite shocked. I then confronted the police—or went and talked to the police—identified myself as a senator and simply asked, 'Can I ask what the dogs are doing?' They said, 'We can't tell you that.' I said, 'Can you tell me what powers you are exercising today?' and the answer was a very short 'airport security powers'.

I got the bus along with the other passengers and then jumped on the aircraft. The flight to Coober Pedy was about an hour and a half, which gave me enough time to type up some questions on notice for the relevant minister, which I sent when I arrived in Coober Pedy. I might point out that I did also contact the commissioner's office, and we did have a discussion about it. Indeed, it turned out these police officers were being perhaps a little heavy-handed and not operating in accordance with the relevant procedures.

It was quite funny, because I had this bill in my bag at the time. I had taken it with me to read on the plane. So there was a certain irony about getting pulled aside by the police. I'm now satisfied, having talked with Commissioner Colvin's office—if indeed he's still the commissioner; I think he may well be moving on, but he was a superb commissioner. As I said, police procedures have been adjusted.

I stayed in Coober Pedy over the next 24 hours and I can tell you that I spoke with a number of people, and the topic got brought up. There were people, regular Australians, who were shocked enough by what had happened that they raised it in conversation, many of them suggesting that they had been through Eastern Europe many years ago and had the same sort of treatment. So there's a bit of a danger even in accepting this legislation from the perspective that it's grounded in concerns about national security. That's something that happened to me, to a number of South Australians and perhaps even to interstate or international visitors. As I said, the police commissioner has indeed looked at that and assured me that the procedures will change.

Even when not travelling ourselves, trips to airports are routine as we meet or farewell family, workmates and colleagues. Soon, however, as a consequence of this legislation, visitors to our major airports would be well advised to check that they are carrying photographic identification, because they could be stopped at an airport by an Australian Federal Police officer and asked to identify themselves. If a person is not prepared to do that, they'll face significant fines. If they can't or won't identify themselves to the satisfaction of a police constable or if they are judged to in some way pose a problem for aviation security, they'll also be at risk of being banned from their flight and/or summarily ejected from the airport and banned from the premises for up to 24 hours.

The government argues that these expanded police powers at airports are necessary to disrupt security and criminal threats. It is certainly the case that our airports are potential terrorist targets and focal points for criminal activity, especially drug trafficking. At present, police can always ask someone to identify themselves if they suspect that a person may be about to commit a crime. If a person is driving a vehicle, they may be required to produce a drivers licence. However, the government argues that existing identity-checking requirements are no longer adequate. The Minister for Home Affairs, Mr Dutton, has emphasised that the Federal Police have 'no intention of checking the identity of people at random'; instead, they will rely on police intelligence, together with what is described as 'specialist expertise and training'.

That said, police officers will enjoy significant discretion to demand identity checks and to expel people in order to safeguard aviation security. Although expulsion from an airport for more than 12 hours will require approval from a police sergeant or a more senior officer, the potential for arbitrary exercising of power is considerable. Missing a flight may involve significant cost for a person who has broken no law but, by virtue of background or association, falls within an intelligence risk profile. But they will have little, if any, redress. Police intelligence—and, indeed, information from our national security agencies—is regrettably far from a hundred per cent reliable. Moreover, these new powers may easily be focused on particular ethnic and religious groups. Some political figures might be keen to encourage that. In any case, de facto ethnic and cultural profiling is an obvious risk.

The bill before the Senate today has been amended since the first bill was introduced by the government last year. The government has agreed, if not in whole then at least in part, to the recommendations made by the PJCIS. Significantly, the bill has been amended to include a savings provision to ensure the move-on powers do not interfere with lawful advocacy, protest, dissent or industrial action that is peaceful and does not disrupt the safe operation of an airport. The government has further agreed to recommended transparency measures. The AFP will be required to record, and report on an annual basis, the number of occasions at each major airport on which an identity information direction is issued and, similarly, the number of occasions on which a move-on direction is issued.

The PJCIS also recommended that the original bill be amended to include, in certain restricted circumstances, the right to seek urgent or expedited judicial review. The government has amended the bill to address what it describes as the broad intent of this recommendation. In issuing a move-on direction, a constable or AFP protective service officer will be required to use an approved form that includes details that will enable a person to contact a Federal Court registry in the state or territory in which the direction is given. The government argues that providing these contact details will assist a person subject to a move-on direction to apply for judicial review or interlocutory orders in relation to the direction. That may be so, but the reality is that the judicial review process is not something that many people would easily avail themselves of. I don't know if anyone in this chamber has been to a Federal Court registry and tried to navigate the extensive number of forms or, indeed, seek assistance from a duty solicitor. It can be quite problematic. In any case, there's no question that the person who is subject to that move-on order will, in actual fact, miss their flight. In some instances—in fact, I expect, in almost all circumstances—there will be consequential financial loss.

As it now stands, the bill is an improvement on the original bill, but it is still a measure that significantly changes the relationship between citizens and the police. This bill enjoys bipartisan support from both the government and the opposition, so it will soon pass through this chamber and become law. I would make a couple of points in conclusion—

Scott Ryan (President) | Link to this | Hansard source

Order! Senator Patrick, we will now move to question time.