Slade Brockman (WA, Deputy-President) | Link to this | Hansard source

The committee is considering the Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2026 and amendment (1) on sheet TK115, moved by the government to opposition amendment (2) on sheet 3803.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

We are, as we know, in the continuation of a committee stage. Minister, yesterday during the committee stage, I asked you—and I've got the Hansard in front of me—some questions in relation to the employment of the current CDPP, and you said you'd get back to me. I just don't know if you've been able to do that. I also said:

Is it not the case that the director of the CDPP worked as counsel assisting the special investigator to investigate war crimes, and that she is now in charge of prosecuting war crimes?

Your response was:

I don't have that information with me. I can certainly take it on notice and try to get back to you. That is not the reason that this provision has been included in this bill, but we will certainly endeavour to get as much information for you as possible.

Given it has been some time since we had that exchange, have you been able to get that additional information for me—please?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Thanks, Senator Cash. Just to remind you—you've got the Hansard there in front of you—I did give you the information in a later question. But, for the purposes of today's conversation, I will reiterate that information for you. I refer to my previous answer. I'm advised that the director in a previous role as counsel assisting provided advice to the Office of the Special Investigator that had been established by the former coalition government. I'm advised that this advice in no way conflicts with her new role as director. The director will continue to review and consider, and the director would declare and stand aside if need be. I'll leave it at that. I think that answers your question. If you need more information, let me know.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Can I confirm then, based on what you've said, that, at this point in time, in relation to the prosecution of Ben Roberts-Smith, there has been no conflict of interest, whether actual or perceived, declared by Raelene Sharp as the CDPP?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

With respect to the matter to which you refer, the director has considered her position and sees no conflict.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Thank you for that. You said that the director sees no conflict. Can you confirm that the Attorney-General does not believe that the Commonwealth Director of Public Prosecutions, Raelene Sharp, has any concerns over a potential, not a direct, conflict of interest in relation to the prosecution of Ben Roberts-Smith?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I did answer this question yesterday. To clarify for the chamber and the senator, I want to refer to my previous answers. The government does not accept that there is an actual or perceived conflict of interest that relates to the current director of public prosecutions.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Can I confirm for the Hansard record that that is in relation to the current prosecution on foot in relation to Ben Roberts-Smith?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator, I'm referring to all prosecutions that are currently on foot.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Yesterday we talked about whether or not the Office of the Special Investigator actually worked with the AFP in relation to the investigation into war crimes. I want to note for the Hansard record that, on 7 April 2026, the opening statements by the AFP commissioner and the OSI director of investigations, following the arrest of the former Australian soldier stated:

Good afternoon.

A former Australian Defence Force member has today been arrested and will be charged with five counts of War Crime—Murder after a joint investigation between the Office of the Special Investigator (OSI) and the AFP.

For the benefit of the Hansard record, it was a joint investigation, as stated by Krissy Barrett as the Commissioner of the AFP. In that press conference, she was joined by—I'll make sure I say it correctly—the OSI director of investigations. So it was a joint investigation.

Can I also confirm that, on 14 November 2023, the former attorney-general Mark Dreyfus announced the appointment of Ms Raelene Sharp as the next Commonwealth director of public prosecutions? This is a press release that was issued at the time. It goes through Ms Sharp's legal career, and then it also confirms:

Ms Sharp has also been working as counsel assisting the Special Investigator appointed to investigate possible breaches of the Laws of Armed Conflict allegedly committed by members of the Australian Defence Force in Afghanistan from 2005 to 2016.

I also want that on the Hansard record, as it pertains to the legislation in front of us.

I also place on the Hansard record—I think you also gave me evidence of this yesterday—that Ms Sharp herself was actually counsel assisting the Office of the Special Investigator in relation to the investigation into the war crimes. As you've now noted, there are now two prosecutions on foot. Can I confirm all of that, please?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator Cash, everything you've stated is on the public record. I understand you're seeking to do that for yourself, but there's nothing that I can add to what you've said. Can I just use this opportunity though to remind the Senate and all senators that the prosecution to which Senator Cash is referring is currently ongoing. I made mention of this yesterday. We certainly should be scrutinising this legislation before us, but I would just caution senators on using this opportunity to politicise a current prosecution in any way. I'm not suggesting that Senator Cash is veering into that territory just yet, but it's very important that we concentrate and scrutinise this legislation. I certainly am cautious about politicising a prosecution which is currently underway.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

I'm actually not sure how asking questions about a provision in a piece of legislation that your Attorney-General is asking us to vote on—and I can tell you now it may not be today, as far as the coalition's concerned, based on the evidence that you have just given—is an attempt to politicise this. We are establishing on the record that your Attorney-General has now formally put on the record, via you, that she does not believe that there is any actual or perceived conflict in the fact that the current CDPP, Raelene Sharp, was counsel assisting the Office of the Special Investigator in relation to war crimes that had allegedly been committed. This was actually disclosed in the press release that was issued by your former Attorney-General, Mark Dreyfus, when he then appointed her as the now Commonwealth Director of Public Prosecutions.

But, on top of that—seeing as we do now need to clearly get things on the Hansard record—can I therefore confirm this. On 26 May 2026, in our Senate estimates proceedings, the Commonwealth Director of Public Prosecutions, Raelene Sharp, appeared before us. I was there and you were there. I asked questions of her and she gave evidence—it is on the Hansard record—about the process followed by the CDPP before the charges were commenced with. Her evidence was that the CDPP, Ms Sharp, sent advice to the Attorney-General on 30 March 2026 seeking the Attorney-General's consent in relation to the proposed prosecution of Mr Roberts-Smith. The contemporaneous record of the estimates hearing records that the CDPP had sent advice to the Attorney-General requesting consent to charge Ben Roberts-Smith on 30 March. She then gave evidence about what was contained in that material. Her evidence was that the brief to the Attorney-General essentially contained the information explaining why she as the CDPP considered that the charges were warranted. Then, as you know, on 1 April, a day or two later, the Attorney-General gave that consent. So can I again confirm, given we are going to actually now change the law apparently in relation to conflicts of interest when they involve the CDPP, that the Attorney-General of Australia does not believe that there is any actual or perceived conflict of interest in relation to the current CDPP, who provided the brief of evidence and requested the consent to go ahead with the charges from your Attorney-General—and that consent was provided—and the fact that she was directly involved, as is set out in your former Attorney-General's press release, with the Office of the Special Investigator, who investigated the alleged war crimes?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I've already answered this question. I refer to my previous answer.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

On the Hansard record, you have said the current Attorney-General does not believe there is any actual or perceived conflict. Can I also confirm, should this legislation today pass, that there will be no change in the position in relation to the CDPP and her involvement in the prosecution of this particular case—in other words, a conflict of interest won't suddenly be declared because this legislation passed?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator Cash, as we canvassed yesterday, there are current arrangements already in place where actual, potential or perceived conflict of interests arise. A director must take a leave of absence from their duties entirely to allow an acting director to be appointed to then perform or exercise the functions of powers. The provisions that we are seeking to amend don't create a new process. They simply make it more effective.

Jessica Collins (NSW, Liberal Party) | Link to this | Hansard source

The CDDP's powers derive from section 9 of the DPP Act. In describing that section, the Prosecution Policy of the Commonwealth at 4.1 says:

This provision encapsulates in a statutory form one of the main purposes in establishing the DPP—that the decision whether and how a prosecution proceeds should be made by the DPP independently of those who were responsible for the investigation.

If someone acted as an investigator and later became the prosecutor in the same matter, would that contradict the Prosecution Policy of the Commonwealth?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I've already answered the question about whether there is an actual, potential or perceived conflict of interest. The answer is no.

Jessica Collins (NSW, Liberal Party) | Link to this | Hansard source

Thank you, but that wasn't what I asked. I asked: if someone acted as an investigator and later became the prosecutor in the same matter, would that contradict the Prosecution Policy of the Commonwealth?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator, if you refer to that legislation, you would note that it's actually up to the director to decide whether there's a conflict. We've gone through that back-and-forth today. That's been considered. The director doesn't consider that there is an actual, potential or perceived conflict of interest. The provisions we're seeking to amend today would make it even easier for a conflict to be managed, and we hope to get the support of the parliament.

Jessica Collins (NSW, Liberal Party) | Link to this | Hansard source

If the director has not declared a conflict of interest, can the Attorney-General then step in and declare that there is a conflict of interest—if an investigator then becomes a prosecutor?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

No.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Can I just go back to some earlier evidence that you've given, Minister? You said that the CDPP has concluded that she does not believe there is a conflict of interest in the Ben Roberts-Smith case. Given that, again, we are talking about changing the current process in relation to conflicts of interest, are you aware of how the CDPP arrived at this conclusion that there was no conflict of interest, given—in particular—the policy that Senator Collins has just referred to?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator Cash, as you are aware, the CDPP is an independent agency. I can't speak on the director's behalf. You're entitled to ask questions of her, obviously, through Senate estimates or other methods, but I can't speak for her. The director is independent and has considered this matter.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

():  If the director is therefore independent—your evidence appears to be that the Attorney-General has no role, including in relation to the policy, if she herself thought, 'Well, hey, hold on, there is a conflict;' your answer was no—can I ask, therefore, why the government has drafted legislation that therefore allows the Attorney-General to select the person who exercises the director's powers?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

That's a really simple answer, and it's in the explanatory memorandum. It's really about making sure that the person who is selected to undertake the position is of enough seniority to do it. We understand that the position and the duties of the director are of great importance, particularly to our justice system, so we want to ensure that a duly qualified and senior member of staff is appointed.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Again, you just gave advice that the office of the CDPP is independent. On that basis, why did the government not say, 'Well, the director, because she is independent, is able to nominate the appropriate substitute'? Is not the independence therefore compromised because you are now saying, 'Despite all of that independence, which I've just put on the Hansard record, we're actually going to nominate the Attorney-General of the day to select the person'? That is in direct conflict with the evidence you've just given to the chamber.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

No, it's not. What's being proposed is that the Attorney-General make an authorisation, given the importance of the powers and functions, to ensure that the identified conflict of interest is adequately managed. I'm sure you would agree that that's an appropriate thing for the Attorney-General to do, but it does not in any way interfere with the independence of the agency. It would not be appropriate for the director to use their power of delegation to delegate the performance of the relevant function or exercise of the relevant power in circumstances where they have identified a conflict of interest.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Does the government accept that prosecutorial independence must be protected both in fact and in appearance?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Yes.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Therefore, does the government accept that allowing the Attorney-General to select the person exercising the DPP powers in a particular matter could create a perception of political involvement?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

No, because that person who is selected would still be required to undertake the duties and the powers of the director in accordance with the legislation.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

You said earlier that the CDPP has concluded that she does not believe there is a conflict of interest in the case of Ben Roberts-Smith. Are you aware of how the CDPP arrived at this conclusion that there was no actual or perceived conflict?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I've answered that question.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Do you know if she sought independent advice about whether or not there was an actual or perceived conflict?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

That's a matter for the director, which is why I answered that way previously. If you have further questions in relation to this, I will be giving you the same answer.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Has the Attorney-General discussed the matter of a direct or perceived conflict of interest with the CDPP about the Ben Roberts-Smith matter?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator, I've indicated to you what the government's position is in relation to the conflict of interest. I won't in any way, shape or form go into conversations between ministers and the heads of agencies. But, to be clear, the government does not accept that there is any actual or perceived conflict of interest that relates to the current Director of Public Prosecutions.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

In terms of the provision that we are dealing with today, is the director required to be consulted before the Attorney-General makes the authorisation?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

That's not a requirement, for the reasons I gave to you previously. Once the conflict is identified, that decision is made by the Attorney-General to ensure that the person who undertakes those duties is of enough seniority to undertake the powers and particularly the duties required by the director.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Just so we understand exactly, for the Hansard record, can you again take us through how the Attorney-General determines who this nominated person will be.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

As outlined in the explanatory memorandum, the Attorney-General may authorise a person to perform or exercise the relevant functions or powers if the person is:

This ensures the authorised person is of sufficient seniority to exercise powers … that would otherwise be vested in the head of the agency.

And, to be clear:

… an authorisation may authorise a person to perform a function or exercise a power in relation to specified proceedings, specified acts or omissions, or in specified circumstances.

It also provides that the authorisation can authorise a person to perform a function or exercise a power under the act. I can take you through some examples of that, but they are in the act and the explanatory memorandum.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Is the Attorney-General, at any stage, required to have regard to the director's views in terms of the appointee? For example, if the director were to object to the Attorney-General's proposed appointee, could the Attorney-General nevertheless authorise that person?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

No, there's no requirement in the provisions that are in front of us for that to occur, primarily because, once a conflict has been identified, we wouldn't want that conflict to influence the decision. It's not part of the decision that the Attorney-General would make. As I said, the only factors that the Attorney-General would take into account is that they're a member of staff, they're of Senior Executive Band 2 and they're a legal practitioner.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Is the Attorney-General required to give reasons—publicly available reasons—for determining a particular person will actually be delegated the powers of the CDPP?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

No, Senator.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

But they do need to be an officer of the Commonwealth DPP because they have to be staff within the department, I think you said.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Yes, Senator—a member of the CDPP, an APS employee which is at SES Band 2 or higher, and a legal practitioner. They're the three criteria that the Attorney-General would require.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

And that's 'and'?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Yes, that's 'and'.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

In the event that a conflict is identified, is the Attorney-General expressly required to then be satisfied that the person that is being authorised has no actual, potential or perceived conflict of interest themselves, given, as you just said, there are lots of people in the CDPP and they may well have worked on a particular matter. So how do you then ensure that the infection that has been identified does not then flow through?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

This is in the legislation that we've proposed. That person would be required to provide information to the Attorney-General in the same way that a potential director would. I'm not necessarily talking about conflicts of interest for a proceeding, but we'll get to that. In the first instance, that person would have to provide all direct and indirect pecuniary interests that that person has or acquires in any business, whether in Australia or anywhere else. That's how we deal with those types of conflicts of interest. You're talking more in relation to the conflict that might arise from a proceeding. That person would also need to declare that to the Attorney.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Can I confirm the way this particular clause of the legislation is then triggered? It's not the Attorney-General who utilises the powers because she or he perceives there is a conflict. In the first instance, the director identifies the conflict and then says to the Attorney-General, 'Those powers are now triggered,' not the other way around.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Yes, that's correct. That is how it works under the current arrangements. There's no change to the fact that a conflict of interest can be identified and dealt with. What we're dealing with is how it's dealt with. At the moment, a conflict of interest requires that the DPP takes a period of leave. This proposal enables that not to occur. We think that's a more effective way and a way that it is dealt with in other types of agencies and, quite frankly, within the legal system and law firms. So this is an appropriate update to the legislation. As I said to you earlier, just to confirm for the Hansard record, this is not motivated by any particular proceeding or conflict.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

The CDPP identifies an actual or perceived conflict. This now steps in. The Attorney-General appoints someone to step in. In terms of the appointment itself, must the authorisation relate to a single identified matter? Can the authorisation cover a class of matters? Does it cover all relevant functions of the director for a period of time? Is there any maximum statutory minimum duration for an authorisation? How does the ending of the authorisation come into play? For example, if the conflict ceases, does that mean that suddenly the authorisation ends? Is there a formal written instrument et cetera in terms of the delegation now ending? Could I get that on the Hansard record?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I'm not seeking to be disrespectful in any way, but it's on the Hansard record because it's in the bill.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

Yes, but I just would like it read out when people are actually reading this.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Well, it's in the bill. You can read it. It relates to a number of different ways that the authorisation is designed to be flexible. I can take you through those provisions. They're in proposed 31A, 'Authorisation of persons in cases of conflict of interest':

(3) Without limiting subsection (2), an authorisation may authorise a person to perform a function or exercise a power:

  (a) in relation to specified proceedings; or

  (b) in relation to specified acts or omissions; or

  (c) in specified circumstances.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

What about the length of the authorisation and what triggers the ending of the authorisation?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

That will depend on the conflict.

Michaelia Cash (WA, Liberal Party, Leader of the Opposition in the Senate) | Link to this | Hansard source

I understand that it depends on the conflict, but what is the trigger for the authorisation coming to an end? Is it written?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I understand your question. To clarify: the Attorney-General can make an authorisation that will allow someone to undertake functions of powers in relation to a specific proceeding. Once that proceeding is finalised, the authorisation can allow a person to undertake specified functions or powers. The Attorney-General can also make a standing authorisation to avoid having to remake the same authorisation multiple times.

Leah Blyth (SA, Liberal Party, Shadow Assistant Minister for Defence Infrastructure) | Link to this | Hansard source

Senator Shoebridge.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

Thanks very much. I was in my own world!

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Sorry, Senator Shoebridge. Can I just clarify, Senator Cash, for completeness. Proposed section 31B, subsection (1), says:

The Attorney-General may, in writing, vary or revoke an authorisation under section 31A at any time.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

I was moving to a different matter, which is the surveillance warrant. This bill proposes an extension for over three years, to September 2029. What was the rationale for a three-year extension, given this government, I think, has been in receipt of the INSLM's recommendations for more than 12 months about the need for fundamental reform? What was the thinking behind a three-year extension period?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I might answer that question by also making some comments about the amendment that you've proposed in relation to the sunset. That might be a convenient way to do that. The government is opposing your amendment in relation to the sunsetting date. As you say, the Independent National Security Legislation Monitor, in his review of the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021, found that the powers that we are referring to must not be allowed to sunset. That's very, very clear. The extension of the sunsetting date to 4 September 2029, in the government's view—you asked for the rationale. The rationale is that it ensures these critical powers remain in place until comprehensive reform to modernise the electronic surveillance framework is completed and has been considered by parliament and also commences. The government intends to further consider the framework for the powers and the recommendations of the INSLM's review as part of these comprehensive reforms.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

But the government's had the INSLM review for more than 12 months, and the INSLM said that these powers have been used very rarely, but there are circumstances where, in the INSLM's opinion, they were appropriate. But the INSLM also said they should not continue without a whole series of additional safeguards. Now, does the government still support the INSLM's recommendations for safeguards of these powers? Is that still the government's position, or have you changed your position—because this bill puts no safeguards in. It just totally ignores all of those parts of the INSLM's report. Is it still the government's position to support those safeguards?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I want to confirm for you that the review, particularly those recommendations relating to safeguards—it's the government's view that they're more appropriately considered as part of a broader electronic surveillance reform, and that will ensure that issuing arrangements and safeguards for the powers introduced by the act align with the arrangements for other electronic surveillance warrants.

You go to the timeframe, and I respect your views. I think it's really important for those listening to understand that the work around progressing comprehensive reforms to Australia's electronic surveillance laws is happening as quickly as possible, and the government is committed to getting those reforms right. The reforms are some of the most complex and significant national security law reforms undertaken in Australia's history.

Before we get into talking about how quickly we should move on this, I just want to remind senators that the reform involves the repeal and replacement of more than 1,200 pages of legislation across four acts of parliament affecting more than 20 Commonwealth, state and territory law enforcement agencies. The legislation, we believe, must be carefully developed to ensure that new laws remain effective, given the rapid pace of change.

The government is committed to those reforms. We are working to progress them. It's a matter for the Home Affairs portfolio, but we certainly recognise the complexity and significance of these changes and we look forward to broad support in the parliament when they're brought forward.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

I hear the arguments. We hear it every time from the Attorney-General's Department: 'Oh, you know, it's all very complex. It's all very hard. We have to write this really tortured series of impenetrable pieces of legislation.' Yet, what the INSLM said was that there was a series of protections you could literally lift and shift from other jurisdictions that already have these protections in place. Other jurisdictions in the UK and some of the state jurisdictions already have the protections in place that the INSLM is recommending happen at a Commonwealth level. But, again, we get this statement from this government, in particular, that any kind of reform is going to take us two years, three years, four years, five years, 10 years or 12 years.

If you look at the Attorney-General's department in particular, their ability to produce meaningful legislative reform seems almost zero. They spend their time producing things like the FOI reform, which nobody asked for or supported and which was countless hundreds of pages of legislation. Then we put it in the recycling bin. When it comes to these basic reforms that the INSLM is recommending—and, as I said, you could literally go and pick up the drafting from other jurisdictions—we get told that it's going to be three years, four years, 10 years or eight years.

How about this one? The INSLM recommended that issuing authorities should be retired judges and, if you can't make them retired judges, make them current judges. That's not what I would call a major drafting exercise. That could have absolutely come with this legislation, or it could have come in a standalone piece of legislation that accompanies this legislation. Are you really seriously saying, Minister, that it takes three years to put in a legislative provision to say that these warrants need to be issued by retired judges or current judges? Is that really going to take this department three years to write that?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I'll just make a number of points. That's not the suggestion that I've made. We are working around that sunsetting date that's been proposed to ensure that the new framework can be in place, that it's gone through parliament and that it commences. We do recognise that it is complex.

I just wanted to make a couple of points, though, about your political commentary. It is not fair to say that the Attorney-General's Department has not undertaken legislative reform. As the former chair of the Legal and Constitutional Affairs Committee over three years, they kept us very busy with important reform. You might not view things like the Criminal Code amendment on deepfake sexual material important or—

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

No prosecutions.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Well, you might not think that that's important, but I can tell you that it's incredibly important, particularly to Australian women. You might not think that the reforms that this government made on improving the family law system are consequential in any way or some of the work that we've done around improving our national security, banning state sponsored terrorists. This is complex legal work. I just think your constant diminishing of public servants who serve our country and do really difficult work in an increasingly complex environment, particularly around national security, demeans you and not them.

We understand your sense of urgency to progress these reforms. We have undertaken extensive work already and we will continue to do that, but to dismiss this as a simple 'switcheroo' of provisions is nonsense. Quite frankly, the government and, I would suggest, the opposition are not going to take any type of national security advice from the Greens.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

We're suggesting you take national security advice from the Independent National Security Legislation Monitor, the INSLM. These are the recommendations we're putting forward. I asked how it could possibly take three years to put in place an amendment that said these warrants should be considered by retired judges or current judges. Instead, we get another word salad, political attack on me for daring to ask the question.

Then we get this desperate effort to come up with a list of meaningful reforms that have come out of the Attorney-General's Department, and the one thing we get is the criminalisation of deepfakes. When that legislation passed, we said, 'Fine, pass that legislation.' I think it was maybe three pages long. What the Greens said was: 'Criminalising it won't fix it. These things don't get prosecuted. Women don't feel safe coming to the police. The police aren't properly trained. It's not really going to fix it. It's all a political play. Show us the prosecutions.' After that so-called landmark reform from the Labor Party, do you know how many prosecutions there have been under that legislation for deepfakes? Last time I checked, one. One prosecution. That's what you put forward as saying the Attorney-General's Department is some kind of meaningful reform agent.

The legislation no doubt got some kind of political hit for the government, pretending to do something that was going to be meaningful. But in terms of protecting women, only one prosecution last time we looked. One prosecution in the whole country. That's what you put forward as the meaningful reform coming out of the Attorney-General's Department. So I ask again: how could it possibly take three years to put an amendment in to say these warrants should only be issued by retired or current judges? How can that possibly take three years?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

I've answered that question. To go to the point you made around taking advice from the Independent National Security Legislation Monitor, we are. That review found that these powers must not be allowed to sunset. By passing this bill, we will ensure that that does not occur, although the Greens have decided to vote against that advice.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

The Greens have an amendment to increase—you ask about not being verballed, Minister, and then you make that deliberately false contribution. Our amendment here is to give you 12 months of sunsetting; 12 months to get done the job that the INSLM has been saying for over a year you should get done. So don't you verbal me—through you, Chair. The minister shouldn't be verballing me. We say 12 months is enough time for a department with countless hundreds of staff to come through and pass some legislation to put these protections in.

There are three core protections the INSLM says should be attached to these warrants. These are covert warrants that the people who are subject to never find out about most of the time. The INSLM has said not only should these covert warrants be done by retired or current judges but there should be a public interest monitor there. I'll read the recommendation:

There should be Public Interest Monitors whose role includes providing submissions on matters of public interest and feedback from oversight processes, identifying matters where independent technical advice may be required and providing comments on draft warrant applications and templates.

That's what the INSLM said because the INSLM is worried that ASIO, the AFP and, under the current law, the ACIC, in secret exchanges that happen without any public hearings, without anyone contesting it and without any independent person reading this, are going in secret and getting these warrants with no-one contesting them. No-one's checking for the public interest. No-one's checking if they're overly extensive. No-one's checking about the technology.

Does the government support that recommendation from the INSLM to have public interest monitors as part of this so that, when the state goes in and covertly wiretaps and gets their warrants, there's somebody checking? Do you support the recommendation?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator, as I said previously, and as you well know, the government is working through those recommendations as part of the comprehensive reform, and we will consider those recommendations. The legislation before us does not deal with that recommendation, in terms of relevance of the question, but we will continue to engage and progress those reforms as required.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

():  Now I'm really confused, because the government's response to the INSLM's report—again, this was tabled in this parliament last year—said in response to recommendation 1—which was where the monitor recommended that the AFP should retain these warrants subject to recommendations 6 to 8 being implemented, and I just read two of those recommendations, recommendations 6 and 7—was, 'The government agrees to this recommendation.' That's what you told parliament last year. You said you support public interest monitors. You said you support having retired or current judges. You put it in writing. You tabled it in the parliament. You told the parliament that, and now, when I test you on it, you go to water. Your advice now is: 'Oh, we're considering it. It's under advisement. It'll be part of a complex review.' So I ask you: is that what's happened—that you've gone to water on accepting recommendations 6, 7 and 8 of the INSLM between when the response was tabled last year and whatever advice you're getting now? Is that what's happened—that you've backpedalled?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator, why don't we just cease the personal attacks that you're directing at me? It is not becoming of the parliament and it is unnecessary. I have all of the information in front of me.

No. Well, what do you think that is? Maybe you should just go back to attacking me about women's safety. Is that a better place for you to be?

Leah Blyth (SA, Liberal Party, Shadow Assistant Minister for Defence Infrastructure) | Link to this | Hansard source

Senator Shoebridge, do you have a point of order?

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

I'd ask the minister to withdraw that. When I'm saying 'you' in this context, it's a reference to the government. I understand that we have an assistant minister here who's not responsible for the legislation and who's getting the advice from the bureaucrats. You want to personalise this, Minister. I don't. My reference is to the government.

The TEMPORARY CHAIR: Senator Shoebridge, if you can resume your seat, I was listening to what the minister was saying. I don't believe there was anything there that she needs to withdraw, but I would ask you both to direct your comments through the chair.

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Gladly, Chair. I would love to do that. I think that what Senator Shoebridge has sought to do is clarify his comments—that he was directing them at the government and not to me personally. That was what I was responding to. It's not helpful in terms of the debate today.

Senator Shoebridge, you asked me about a government response which is on the public record. It's not in front of me, because it doesn't relate to this bill. I know that you would like me to have every piece of document that's been tabled in the parliament in my head or in front of me, but I don't. I can get that information for you. But, as it relates to the government's response to recommendations of a review that was tabled, that has not changed. I think that, if we were to go to those recommendations, you would find that that is exactly what the government is seeking to implement—ensuring that this provision does not sunset and considering further reform. I don't have the wording of the response in front of me. You clearly do. We can get that for you if you really need a public document to be presented through this debate. But what I've got in front of me relates to the current provisions, and what I've said to you is that we are seeking to extend the sunset to 2029 to allow us to undertake that comprehensive reform to modernise the electronic surveillance framework. That is not a changed position from the government. We will continue to work on that, and this bill today will ensure that that these really important powers do not sunset.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

Minister, you get the advice that's been given to you by the Attorney and her office and by the department, and I find it incredible that they are not giving you the support you need for this debate, because one of the core issues with extending the sunset provision is that the INSLM said that these powers should only be extended if these protections are in place. The INSLM said it in black and white. It said you should only extend the sunset provision, that these powers should only be continued, if they are subject to a raft of protections for the public and for those who are targeted by these powers. So it is absolutely relevant to the debate today to extend these to address the failure of your government to legislate the now longstanding recommendations from the INSLM.

I want to be clear: the Greens do not support giving you three years to spin your wheels and not deliver this reform. I'm surprised the coalition is agreeing to giving you three years to do this, to spin the wheels and not deliver the reforms and protections that the INSLM is doing. That's why I'm moving this amendment on behalf of my party, the Greens, to say a maximum of 12 months to the sunset. It is absolutely critical to this debate to get an understanding of what the government's intention is and what the timeframe is for these INSLM recommendations. It looks like we'll have some time to come back and discuss this later today, so maybe in that time those who are advising you would be well minded to bring down the 300-page INSLM report and the six-page government response that's been tabled to the INSLM report and be able to answer questions that this parliament has about giving you a three-year get-into-jail-free card to extend this.

The other question that we have is: does the government support reforms to these warrants, which you want a three-year extension for? Do you support a mechanism to give access to independent technical advice about the warrants so that those issuing the warrants have an understanding about what the security agencies are proposing to do with their covert surveillance? I've met a bunch of judges. They're nice people. Sometimes they have an interest in things; sometimes they don't. In my experience, given their generation, they're not what I'd call tech savvy. They often have their associate print out their emails for them. Yet you're going to be asking them to issue warrants that have incredibly technical provisions in them that undertake really complex online surveillance and operate quite sophisticated hardware and software without any kind of technical advice. Do you support the INSLM when the INSLM says, 'Whoever's issuing these warrants should have a mechanism to access independent technical advice so they can understand what they're doing'? Do you support that?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Perhaps the best way to answer this series of questions is to confirm my previous answer to the senator, which is that the government's response to the review—which was tabled in parliament and is publicly available—has not changed. We can go through every single one of those recommendations and the government's response. I think, with the one you're referring to, the government noted that those positions haven't changed. It's publicly available.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

This isn't one that the government noted. This was a key safeguard that was an essential part of recommendation 1. This is recommendation 8 of the INSLM—that's one element of it, and you'll be pleased to know there are other elements to explore. Recommendation 1 of the INSLM was:

AFP should retain DDWs, subject to recommendations 6-8 being implemented.

I'll read the first sentence from the government's response to that, which was:

The Government agrees to this recommendation.

Now, we're told that you're actually just noting recommendation 8, and—

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

On a point of order, Senator Shoebridge is verballing my answers and it is misleading the Senate. The Hansard is very clear. I do not have the report in front of me. I'm not quoting from it, but it is publicly available. So, if you would like the answers on what is in that report, you can read it.

Leah Blyth (SA, Liberal Party, Shadow Assistant Minister for Defence Infrastructure) | Link to this | Hansard source

Minister, that is a debating point. Senator Shoebridge, when you resume, could you just keep to the questions in the committee stage.

David Shoebridge (NSW, Australian Greens) | Link to this | Hansard source

Perhaps we can, after the break, have an answer to the riddle. It is a little bit confusing in the government's response as well. The government's response is that they agree to recommendation 1, which is dependent on having recommendations 6 to 8 implemented. But then, when they're dealing with recommendation 8 in the body of their response, they say that they 'note' recommendation 8. This is a riddle I'm trying to understand. On the one hand, you agree to it. Then, on the other hand, you note it in the government's response. So perhaps when we come back on this sometime after quarter past 11, Minister, you can get some advice from the department about whether the answer that your government does accept recommendation 1 is true or whether it is actually the answer that you give on recommendation 8, that you just note it and you're not really interested in putting in place the protections the INSLM says are needed before these covert warrants are extended.

One of the other key concerns the INSLM had was that, in a system where there's no-one checking, there's no independent check, there's no defendant contesting it, there's no-one testing what the police say and there's no-one testing what ASIO says, it's all just them and a judge or them and whichever officer is issuing the warrant, what are the checks and balances in place? The INSLM said that there needs to be a statutory duty of candour requiring disclosure of all matters of which the applicant is aware, both favourable and adverse. There's currently no such statutory duty. So my first question to you, Minister, is this. You're proposing to extend these powers for another three years. Does the government believe that the AFP and ASIO have a duty of candour in putting these applications? Do you believe that they have a duty to put before whoever is being asked to issue a warrant all the relevant material, both in favour of and not in favour of the application? Do you believe that obligation exists now?

Nita Green (Queensland, Australian Labor Party, Assistant Minister for Tourism) | Link to this | Hansard source

Senator Shoebridge, as I've said to you, our response to that review is in the government response that was tabled. If there's any clarification required, we will get that for you. I think it's really important to understand that, while the recommendations relate to the comprehensive reform that the government's undertaking, there are existing safeguards that apply to concealment activities. I won't run you through them. I'm not going to insult your intelligence by implying that you're not across those. But there are current safeguards, including that the Commonwealth Ombudsman has independent oversight for account takeover and data disruption warrants, as the Inspector-General of Intelligence and Security has for network activity warrants. There are obviously other safeguards that are already in place. I don't think parliament would have passed the original provisions without those being applicable.

In regard to further safeguards or more reform, that is what the government is undertaking now. If there is any clarification needed on the recommendations, we can obtain that for you. But, to be clear and because we're going to wrap up in a minute, these access powers are incredibly important and they cannot be allowed to sunset. They allow agencies to take reasonably necessary steps to hide actions and take warrants and retain the covert nature of incredibly important operations that would otherwise be jeopardised. We seek the parliament's endorsement to ensure that that really important work can continue.

Progress reported.