Thursday, 5 December 2019
Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019; Second Reading
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
The Government is committed to supporting the Australian Criminal Intelligence Commission and its critical role in working towards a safer Australia.
As Australia's national criminal intelligence agency, the ACIC undertakes essential and indispensable functions in gathering intelligence and undertaking investigations to inform a national picture of crime impacting Australia. In doing so, the ACIC is contributing to an Australia that is better connected, better informed and highly capable of responding to transnational, serious and organised crime, cybercrime, and national security threats.
The threat environment and risks to Australia's national security are constantly evolving, endangering the safety, security and prosperity of Australia and our Australian way of life. Organised crime syndicates are highly resilient to traditional investigative and intelligence gathering methodologies, and readily adapt to advances in technologies in their attempts to evade detection and disruption.
The Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill will ensure that the Australian Criminal Intelligence Commission can continue to effectively detect, prevent and disrupt the nefarious activities of serious and organised crime targets.
This Bill will make technical amendments to the Australian Crime Commission Act 2002 to streamline the authorisation process for the ACIC Board to determine future special operations and special investigations, and will confirm the validity of existing special operation and special investigation determinations. The Bill does not expand or otherwise alter the powers available to the ACIC in the course of undertaking a special operation or special investigation.
The Bill also makes minor consequential amendments to the Parliamentary Joint Committee on Law Enforcement Act 2010 and the Telecommunications (Interception and Access) Act 1979 as a result of the technical amendments to the Australian Crime Commission Act.
The measures in this Bill are vital to safeguarding the ability of the Australian Criminal Intelligence Commission to fulfil its statutory functions and actively contribute to a safer and more secure Australia.
I commend the Bill to the Chamber.
Labor supports the Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 before the Senate. The safety and security of Australians and our economic and social wellbeing requires action against serious and organised crime.
The Australian Criminal Intelligence Commission plays a critical role in keeping Australia and Australians safe. The dedicated staff at the commission seek to find, understand and respond to serious and organised crime by collecting, correlating, analysing and sharing criminal information and intelligence; maintaining a national database of criminal information and intelligence; undertaking intelligence operations; investigating matters relating to federally relevant criminal activity; providing strategic criminal assessments; and providing advice on national criminal intelligence priorities. Importantly, the commission is not the police force. The commission's role is to step in when traditional law enforcement methods are unlikely to be or have not been effective.
In the last financial year alone, the commission successfully facilitated the discovery of 95 previously unknown targets, the disruption of 28 criminal entities, the arrest of 169 people, the laying of 607 charges and the seizure of drugs and precursors with a street value of $2.3 billion. This is vital work that helps combat serious and organised crime and keep Australians safe.
Labor will always seek to work in a cooperative and bipartisan manner to ensure our police and national security agencies have the powers and resources they need to keep our nation secure and our people safe. This bill is not perfect and the process that has led up to this debate is not perfect, but Labor does appreciate and thank the Minister for Home Affairs and the government for the bipartisan manner in which they have approached this legislation and briefed the Australian Labor Party.
Following briefings from the government and the CEO of the Australian Criminal Intelligence Commission, Labor accepts that there is an urgent need to pass this legislation to ensure that the ACIC can continue its important work. It's important to note that Labor is of the view that, had we been government, in these circumstances we would have legislated as well. However, we would have legislated differently. I can say confidently, however, that while we would have acted, as the government is, to confirm the validity of existing special operation and special investigation determinations and ensure that future special operations and investigations are on a sound legal footing, we would have done it in a different manner. However, Labor continues to believe that the commission should only be using its powers when traditional law enforcement methods are unlikely to be effective, and we do believe it is important that legislation be brought to this parliament to provide the protection of the special operations and investigations that the Australian Criminal Intelligence Commission is seeking.
It is worth noting that the coercive powers of the commission are extraordinary. They include the power to summon witnesses to appear before an examiner, to compel those witnesses to give evidence on themselves and others under investigation, and to obtain documents or other items held by witnesses. It is important that these powers are only used when absolutely necessary, with appropriate oversight and checks and balances.
I note that the minister has provided Labor with an assurance that, within 12 months of this bill passing this parliament, the government will refer the operation of this legislation to the Parliamentary Joint Committee on Law Enforcement for review. I thank the minister for providing that assurance. I also note that the ACC Act is due for its statutory review in 2020.
Finally, I would like to thank the CEO of the commission, Mr Michael Phelan, for his detailed explanation to me and the shadow Attorney-General of why this legislation is important and necessary. Labor thanks Mr Phelan and the staff of the commission for the work they do to protect our community from organised crime and serious criminal activity. Labor supports this bill because Labor supports the Australian Criminal Intelligence Commission.
The Greens will not be supporting this legislation. Just so that everyone is clear: this is the bill that today has been exempted from the cut-off order, which means it is able to be debated sooner than it otherwise would have been. It is also the bill that is not able to be examined by the Legal and Constitutional Affairs Legislation Committee, on which I represent the Australian Greens. Frankly, both of those things are an utter disgrace given that this is a bill that creates new coercive powers for our security apparatus in this country and continues the ongoing erosion of rights, freedoms and liberty in Australia that has seen us already become an authoritarian and police state and risks us becoming a totalitarian regime down the track. Remember that this is a country where apparently it is just fine for somebody to be charged, sentenced and imprisoned in total secrecy. This is now a country where you can be imprisoned for something you might do in the future. This is Orwellian, draconian stuff that we are talking about here, and this bill is yet another step down a dark and dangerous path for our country.
This has been rammed through parliament—or will be shortly—within a week. This bill retrospectively validates potentially unlawful actions by the Australian Criminal Intelligence Commission and significantly broadens the coercive powers of the Australian Criminal Intelligence Commission board to determine an investigation or operation as a special operation or investigation. Let me remind colleagues that this retrospectivity and increasing of powers is for a law enforcement agency that already has coercive powers similar to those of a royal commission—powers that undoubtedly impact on the freedoms and liberties of citizens of our country, who, unlike people living in any other liberal democracy in the world, are not protected by a charter or a bill of rights.
On the retrospectivity of this bill, retrospective laws are, quite properly, widely considered to be inconsistent with the rule of law, particularly when applied to punitive legislation. That is why the Greens have traditionally opposed legislative retrospectivity. It's worth quoting former British High Court judge Lord Bingham on retrospectivity in our laws who said:
… you cannot be punished for something which was not criminal when you did it, and you cannot be punished more severely than you could have been punished at the time of the offence.
But that's exactly what the government is doing here. As it rams these laws through parliament in less than a week, without giving senators the opportunity to properly consult on this legislation and without giving the Legal and Constitutional Affairs Legislation Committee an opportunity to conduct an inquiry so that we can hear from stakeholders on these matters, we're retrospectively validating investigations by the Australian Criminal Intelligence Commission ahead of a High Court challenge to its coercive powers. In other words, this bill will validate decisions which are probably unlawful which were made by the Australian Criminal Intelligence Commission.
Let's be clear about this: if our security agencies do something unlawful, they should pay the price. And it's very interesting to note the difference between the way the government responds—and, in fact, the way the Labor Party responds—to a potentially unlawful action of the Australian Criminal Intelligence Commission compared with what happened to Bernard Collaery and Witness K. Of course, those two patriotic Australians, who revealed certainly unlawful activity in the form of the illegal bugging of the Timor-Leste cabinet discussions around negotiations with Australia about petroleum resources in the Timor Sea, now find themselves enmeshed in the legal system. Witness K has pled guilty. Mr Collaery has pleaded not guilty and will be tried in secret for actually engaging in a patriotic revelation of unlawful activity. But, because the patriotic revelations of Mr Collaery and Witness K did not suit the agenda of the major parties, they find themselves in court. When you have revelations of almost certainly unlawful activities that do suit the government's agenda—and the Labor Party's agenda, because it wants these powers, of course, when it gets into government—what happens then? Legislation is rammed through this parliament that retrospectively validates and makes lawful those actions. What a disgrace! I have to ask myself: what sort of country are we living in today?
For the Labor Party to come in here and say, 'It's all going to be fine because the minister has promised a review,' is akin to what happened yesterday, with Labor announcing the moving of amendments to the encryption legislation. Labor's trying to make a big song and dance of cuddling up to the tech sector. I remind Labor: you voted for that bill before the last election. You actually voted for it. So don't come in here now, wringing your hands and moving amendments which you know are doomed to failure in this parliament just to try and make yourself look good to the tech sector. You abandoned the tech sector in the last term of the parliament and, mark my words, the tech sector will not forget that.
In regard to this legislation, earlier this week, the Law Council President, Mr Arthur Moses, said:
If there have been breaches of the law by government agencies, then it would be odd and inappropriate for Parliament to validate those breaches as there would not be any deterrent for government agencies in the future who breach laws passed by the very same Parliament.
I couldn't agree more with Mr Moses. As an extension to what he said, I will describe the bill we're currently debating in this way: this is basically greenlighting future unlawful activities by our security agencies in this country, because they know that if they get busted then the major parties are going to come together and make those unlawful actions lawful retrospectively. That's what we're dealing with here, and it's a pathway to totalitarianism in Australia.
This bill will afford the already extremely powerful Australian Criminal Intelligence Commission increased powers to authorise investigations. Where the ACIC board currently needs demonstrable cause for authorising an investigation—in other words, circumstances established on the facts of the matter—under this legislation the board may authorise an investigation if it considers it in the public interest on the basis of its collective experience. Well, to quote from one of my favourite Australian movies, The Castle, 'It's the vibe of it, your Honour'. It's the vibe of it! That's all the ACIC board will have to do to convince themselves in the future that they ought to authorise an investigation: if the vibe feels right. What is happening in Australia at the moment is absolutely horrendous.
What's more, a determination made under this bill will not be a legislative instrument. That means that investigations authorised by the board, with its newly broadened powers, will no longer be subject to a parliamentary review. So here we go again, being frogmarched down the road to a police state. And the government is doing this, as ever, cheered on by the gutless wonders in the Australian Labor Party.
This draconian bill should have been sent to a parliamentary committee inquiry but, unfortunately, that will not now occur. So all those people and stakeholders who are concerned about being frogmarched down the road to a totalitarian regime in this country have been denied the opportunity to have a say. We could have referred it to the parliamentary committee from the floor of this Senate, but Labor won't support us doing that, so of course we don't have the numbers. This is because, as Labor often does, they got a private briefing. They've been convinced to support it on the basis of the old straw man argument of national security.
Yet just yesterday, as we debated medevac, Labor argued that the Senate couldn't and shouldn't vote in support of a bill when it hadn't been allowed to consider all of the information relevant to that bill. That was actually a good argument that Labor put yesterday, and an accurate argument. So what's happened today? Labor has turned around and is supporting a piece of legislation which increases coercive powers, which undermines freedom and liberty in this country, and which the Senate has not had an opportunity to come to grips with because we've been denied an inquiry at the Legal and Constitutional Affairs Legislation Committee.
As for the Greens, we didn't ask for a briefing on this bill because we don't need one: we know a dog when we see it. The crossbench, unfortunately, can't block the bill, so let me use this opportunity to once again make the case for a charter of rights in Australia. Many of our ancestors, including mine, fought and—in the case of many of them, including mine—died in wars to protect freedom and to protect liberty. They would be rolling in their graves today as they watch the unseemly haste with which the major parties erode those freedoms and those liberties that so many of our ancestors died to protect.
We need a charter of rights in Australia. Every other one of the Five Eyes countries and every other liberal democracy in the world, and many countries that aren't liberal democracies, have a charter of rights or a bill of rights either legislated or constitutionally enshrined. So far this century, which is not yet two decades old, we have seen well over 200 pieces of legislation passed through parliaments in Australia that erode or remove fundamental rights and freedoms, and they've almost all been delivered by the major parties voting in lock step because of their uncritical bipartisanship on national security matters and because they actually don't care about fundamental rights and freedoms in Australia.
What we've witnessed here today in this Senate are secret deals being made to pass legislation that is an undermining of our very democracy. What we are witnessing is not the hallmark of a thriving and robust democracy; it is the hallmark of authoritarianism. We're well overdue for a charter of rights, and it's about time those elected to this parliament by Australian people concern themselves with a charter of rights and the ongoing erosion of fundamental rights and freedoms. The Greens will stand up for the rule of law, which is being trashed by this legislation today.
The Liberal Party, which claims as one of its foundation values personal freedoms and personal liberties, is going to trash personal freedoms and personal liberties for the umpteenth time. I have lost count of the number of times the authoritarians and the totalitarians in the LNP have done this in contravention of one of their foundation values, just as I've lost count of the number of times the Labor Party has cravenly rolled over and allowed the LNP to tickle its tummy. It's time for this so-called bipartisanship on national security to come to an end. It's time for legislation such as this not to be rammed through the Senate as it denies us the opportunity to come to grips with the details and consult stakeholders. And, ultimately, it is time for a charter of rights in Australia.
This is a line in the sand moment for the Senate. Will it continue to allow the parliament to erode rights and freedoms by way of stealth? Will it allow law enforcement agencies to exercise coercive powers almost unchecked by the courts? It is concerning that the parliament appears to be comfortable with rushing the Australian Crime Commission Amendment (Special Operations and Special Investigations) Bill 2019 through without proper scrutiny, even though it has the potential to impact on the rights and freedoms of all Australians. Surely after the outcry about media freedom following the AFP raids on journalists the Senate is not going to do this and rush this bill through without proper scrutiny? Any Australian, even those not suspected of a crime, could be impacted by this bill.
The Minister for Home Affairs has described this bill as 'simply making technical amendments' to the Australian Crime Commission Act 2002. Well, I'm sorry, Mr Dutton; these reforms represent a significant broadening of the circumstances in which coercive power may be exercised and should not be dismissed as merely 'technical'.
Madam Acting Deputy President Stoker, I know you are a barrister at law and I know you will understand some of the arguments I am going to present—and they are serious arguments. They are serious arguments which, as an officer of the court, would no doubt concern you. The coercive powers that may be authorised by the board of ACIC are significant, and demand proper scrutiny and oversight. These powers include the ability to compel the production of documents and the capacity to compulsorily examine a person without that person being able to assert privilege against self-incrimination. Unlike the obtaining of warrants, there is no requirement in this act of the citizen being reasonably suspected of any offence. Any person that is thought to have information relating to the ACIC's special investigations can be the subject of the exercise of those coercive powers. To be clear, these powers are not only to be reserved for suspected criminals but may well be used against others, such as journalists and others in the community, whose actions are deemed by the authorities to be contrary to the public interest.
These are fundamental rights that are embedded in our legal system, and, while there may be circumstances in which circumvention is justified, this abrogation must only take place through a rigorous and restrained process with adequate safeguards. The trigger for this bill is a forthcoming case in the High Court of Australia, named CXXXVIII v the Commonwealth of Australia & Ors, where the validity of a determination by the ACIC Board will be challenged on the ground that it did not conform with the safeguards currently present in section 7C of the Australian Crime Commission Act. What is clear from the pending court case is that there is a real concern that the ACIC Board has been making determinations authorising special criminal investigations which may be held invalid. This obviously has the potential to impact the validity of past and current ACIC investigations and operations. It may also mean that there have been convictions that have been secured in part or in full on the basis of invalid actions by the ACIC. We should not be making laws based on a single case, particularly when the case has not even been heard yet.
Currently, for the ACIC Board to make a determination for special operations or special investigations, traditional law enforcement methods must be unlikely to be or have been effective. This bill seeks to remove this test and replaces it with a public interest test, so that the only condition on the ACIC Board issuing a determination is that it considers that it is in the public interest to do so. 'Public interest' is not defined, so it has the potential to be incredibly broad. To reiterate, all that would be required is that the board must consider, on the basis of the collective experience of the members voting at the meeting when a determination is made, that it is in the public interest that a special operation or special investigation occur. This would significantly expand the circumstances in which the ACIC may potentially exercise its coercive powers, removing important safeguards that exist for good reason under the current scheme.
This change is effected, in the main, in clauses 15 and 16 of the bill by the repeal and replacement of section 7C of the act. It is important to recognise that the safeguards that exist in the current act were a compromise worked through following the parliamentary inquiry which replaced the national crime commission with the Australian Crime Commission. The explanatory memorandum to the amendments creating the ACC Act described the significance of these safeguards—so these safeguards were considered significant. There were two significant aspects to the safeguards. First, it was necessary that consideration be given to whether ordinary police methods would be effective before a special determination was made. Second, and perhaps more significantly, it was intended there would be a document which would provide some means of ascertaining the limits of the power of the ACC.
The bill now proposes that the board form its own view that the making of the determination is in the public interest. That concept cannot provide any meaningful guidance as to the limits of the exercise of the power. It is obvious that expanding the capacity of the board to create a special investigation also expands the ability to use coercive powers. Moreover, the less transparent the process the harder it is for any citizen to ascertain the limits of those powers. The only justification that can be identified for this change is convenience and expediency, and that's what this bill is about today. The explanatory memorandum does not explain why the existing safeguards are no longer necessary and why they should be abolished. We are left without reason or understanding.
It is also noted that the bill seeks to retroactively create ACC investigations that never existed. This is effected in clause 56. No justification is identified for why it is appropriate that an investigation be deemed to exist even if it did not in fact. Given the proposed amendments, it is entirely unexplained as to why there might be other cases where this has occurred. The ACC ought to be required to explain the need to validate such conduct in relation to cases which it apparently has in its mind.
I also note that the bill purports to retroactively validate the form of determination made by the ACC, whether or not they complied with the safeguards fixed by parliament in 2002 and without regard to the reasons for the invalidity of the determination itself. This is effected in clause 55. Again, no justification is identified for why it is appropriate that any departure of the ACIC from the terms of its own act should now be enabled by retroactive validation. If the ACIC had been doing the wrong thing and had not interpreted the law correctly, then the parliament needs to carefully consider and scrutinise why this has occurred rather than simply validating it retrospectively. Centre Alliance will be moving an amendment today to remove the retrospective acts in this bill.
Finally, I'm aware of some preliminary concerns regarding the constitutionality of these measures—in particular, the ability for the parliament to enact a power that is so vague and broad in its exercise that it would be difficult for the court to exercise its supervisory powers. That's important, constitutionally. In this country, the courts exercise a supervisory power over the executive. And because the public interest test is so vague and made by a board, this may in fact be an unconstitutional bill.
In conclusion, the bill represents a substantial dilution of what it is necessary for the board of the ACIC to do in order to enable the exercise of coercive power by law enforcement. These proposed amendments are to a scheme that already represents a very substantial incursion into ordinary liberties, and we must be sure to give careful scrutiny and attention to attempts to amend this framework. Parliament should be the last line of defence against overreach by government in the form of legislation that seeks to take away rights and freedoms that have been part of our common law traditions in Australia. Parliament should not form part of a change to erode rights and freedoms of Australians—the very same Australians who elect us to serve them in this place. So members of parliament should not be bullied, should not be rushed. They should not be voting for such a bill without full visibility and understanding as to what effect it has. The tragedy of all of this is that this bill has come to the Senate today, and we are not seeing any scrutiny by a committee of the parliament on a bill that involves the erosion of rights and freedoms and permits the exercise of coercive powers without clear rules and guidelines as to when and how those powers are to be exercised. That should cause great concern amongst all of us.
Centre Alliance will be moving two other amendments to this bill. One of them will be to seek a review of the bill, sensibly—particularly in circumstances where we have seen this bill arrive and it is being voted on without any parliamentary scrutiny in respect of committees and will pass into law, no doubt, because the Labor Party will acquiesce to the government's request, even in these circumstances where Mr Albanese made it very clear there was going to be no more ticking and flicking. People stood up and talked about media raids and their disgust at what had happened. The Labor Party stood up and said that they were not going to let this sort of thing happen. Yet today this bill will likely pass through, giving incredibly coercive powers—which are necessary in some circumstances and are currently controlled by the current act, albeit it appears the act hasn't been complied with. All those safeguards are going to be cast aside today, and that is very disturbing. It's disappointing of the parliament to do so.