Member for Isaacs

Foreign Influence Transparency Scheme Bill - Mark Dreyfus QC MP

26 June 2018

Parliament House, Canberra.

Mr DREYFUS (IsaacsDeputy Manager of Opposition Business) (17:43): The federal opposition is determined to ensure our law enforcement and national security agencies have the powers necessary to keep Australians safe. Labor also believes strongly in the importance of upholding the rights and freedoms that define us as a democratic nation. Australia is a nation under the rule of law. It is essential that, in designing legislation to protect our way of life, we do not compromise those very rights and freedoms that define us as a democratic nation and foster harmony and diversity. Ensuring that we view national security through the lens of the society we are seeking to protect and create is a fundamental duty of all parliamentarians. Labor shares in common with other Australian political parties the key objective of keeping the Australian people safe, which means approaching questions of national security in a bipartisan spirit. However, bipartisanship does not mean Labor will simply agree with every measure the government proposes; bipartisanship means Labor will engage constructively with the proposals put forward by the government with a view to testing and, where possible, improving those measures.

It was in this spirit of constructive bipartisanship that, through the Parliamentary Joint Committee on Intelligence and Security's statutory review process, Labor worked hard over 2017 and 2018 to improve several security and law enforcement powers on the Commonwealth statute books.

The important work of the bipartisan Intelligence and Security Committee has seen a significant review into police stop, search and seizure powers, the control orders regime and the preventive detention order regime in division 3A of part 1AA of the Crimes Act 1914. And, as well, there has been a review by the intelligence committee of sections 119.2 and 119.3 of the Criminal Code, the declared areas provisions. There was also a further and important review by the PJCIS which resulted in its report ASIO's questioning and detention powers: review of the operation, effectiveness and implications of division 3 of part III in the Australian Security Intelligence Organisation Act 1979.

This bill responds in part to these three reviews. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2018 was introduced into the House of Representatives on 24 May 2018. The Attorney-General referred the bill to the Parliamentary Joint Committee on Intelligence and Security for review on the same day. The government's complete adoption of the PJCIS's recommendations is a welcome continuance that the longstanding convention that the government of the day implements without reservation the bipartisan recommendations of the committee. The Intelligence and Security Committee's review of the police stop, search and seizure powers provided for under division 3A of part 1AA of the Crimes Act 1914 recommended that those powers be continued.

The bill inserts a new subdivision CA into division 3 of part 1AA of the Crimes Act 1914 to require reporting to the minister, the Independent National Security Legislation Monitor and the committee on the use of the stop, search and seizure powers under division 3 of part 1AA as soon as practicable after exercise of a power or powers and an annual report from the minister. This recommendation is entirely in keeping with Labor's abiding commitment that our law enforcement and security agency officers should have the powers needed to keep Australians safe. However, the report also recommended that these powers, which are extraordinary, also should be the subject of future review by the parliament and not be allowed to simply fall into permanence on the Commonwealth statute book. Similarly, the Intelligence and Security Committee also recommended that the control order regime provided for under division 104 of the Criminal Code be continued with the provisions sunsetting after three years. The bill adopts this recommendation. These powersthat is, the control order powershave, of course, only rarely been used. The small number of occasions on which they have been used is something that is commented upon by the intelligence committee in its report.

One feature of the bill is that it introduces a new section 104.11A in the new subdivision CA of the Criminal Code which would enable a court to vary the terms of an interim control order where there is written agreement between a senior Australian Federal Police member and a controlee. The explanatory memorandum states that this new section is designed to facilitate 'minor and uncontroversial' variations to an interim control order such as a changed mobile telephone number, change of residential addresses or change in educational or employment arrangements of a controlee. It's obviously desirable there should be a speedy and, as far as possible, informal mechanism leading to the variation of a control order which deals, as the explanatory memorandum suggests, with minor matters of this nature.

The bill inserts a new section 104.28AA into the Criminal Code to set out limitations on the issuing court's ability to make costs orders in control order proceedings. Under proposed subsection 104.28AA(1), the issuing court must not make an order for costs against the controlee. However, if the issuing court is satisfied that the controlee has acted unreasonably in the conduct of proceedings, it may order costs against the controlee to the extent of the unreasonable conduct.

Labor considers it essential that all the powers considered by this review should be available to our agencies for as long as they are necessary to ensure the peace, safety and security of the Australian community. However, Labor also considers powers such as this must continue to be seen and understood as extraordinary. These powers were brought into our criminal law and law enforcement framework to meet the complex circumstances which have faced security and law enforcement agencies over the last two decades. Because these powers are extraordinary, it's essential that they're subject to sunsetting and continued parliamentary oversight through regular review by the committee on intelligence and security.

It was in this light that the committee made the recommendationsand which I'm glad to say the government has adoptedto amend the Intelligence Services Act for the purpose of providing greater parliamentary scrutiny of these powers. This is something that the committee, in its report on this bill, has welcomed in these terms. At paragraph 1.34 of the committee's report, the committee said:

The Committee also welcomes extension of its oversight to include Division 3A of Part IAA of the Crimes Act 1914 together with the additional reporting requirements that will be imposed. As the Committee noted in its earlier report, Committee oversight of the stop, search and seizure powers is in line with other review and oversight functions exercised by the Committee in relation to counter-terrorism.

It's worth noting that the bill also extends the sunset periods for the declared areas provisions contained in the Criminal Code. The bill inserts a new exception to the declared area offence in subsection 119.2(1) for individuals performing official duties for the International Committee of the Red Cross. This is a welcome protection for people and organisations carrying out humanitarian work in some of the most dangerous conflict zones in the world.

The bill also introduces a new schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 to provide that decisions of senior Australian Federal Police members to provide or refuse consent to vary interim control orders under new section 104.11A of the Criminal Code will not be reviewable under the ADJR Act.

The bill extends the sunset date for ASIO's questioning and detention powers in division 3 of part III of the Australian Security Intelligence Organisation Act 1979 by 12 months to 7 September 2019. In its report into the bill, the committee commented on this particular provision in the bill in these termsand I'm quoting from paragraph 1.32 of the intelligence committee's report:

The Committee notes that while the Bill implements one recommendation from the Committees report into ASIOs questioning and detention powers, the remainder of that report (including the Committees recommendation for repeal of the questioning and detention warrant power) is still being considered by the Government. As noted above, the intent of this recommendation was that there be sufficient time for a reformed ASIO compulsory questioning framework to be developed and then reviewed by this Committee.

This bill, then, is somewhat unusual in that it responds to a single recommendation of the intelligence and security committee's report on ASIO's questioning and detention warrant power. While it's the case that the report did recommend the extension of the powers in division 3 of part III of the ASIO Act, which includes the powers providing for questioning and detention warrants, I would like to put on the record very clearly that the report also made the recommendation that the ASIO questioning and detention warrants regime should be repealed. This is a power that has never been used by ASIO. In light of the fact that ASIO is an intelligence agency and not a law enforcement agency, it's a power that I think is fairly clearly unnecessary because of the collaboration that exists between ASIO and the Australian Federal Police.

It's also worth noting that two previous independent national security legislation monitors had recommended, before this earlier report of the intelligence committee, that this power be repealed.

I say again: the bill does not repeal the ASIO questioning and detention warrants power. Indeed, the effect of this bill is to extend for a year a power that the PJCIS has recommended should be repealed. It's understood, and the committee has noted that it understands, that in extending both ASIO's powersthe questioning and detention warrant power and the questioning warrant powerthe government simply is seeking to leave the whole regime in place for a period of 12 months while the government works through what is to replace that regime. It's not entirely clear why the government has chosen to retain the questioning and detention warrants power at all, given that it has never been used, but Labor accepts that that short extension of the whole regime is appropriate, as did the intelligence committee, in order to allow time for a reformed compulsory questioning framework to be developed.

It is worth noting that the government has accepted all of the Intelligence and Security Committee's recommendations in respect of the approximately 10 national security bills that have been brought to this parliament since 2014. This is the first occasion that I can think of that the government has seen fit to extend a power that is the subject of a repeal recommendation. Notwithstanding that, we in Labor, and I as a member of the committee, thank the government for continued implementation of PJCIS report recommendations and I look forward to the government bringing forward legislation that gives effect to the particular recommendation of the committee that the questioning and detention warrants power be repealed, as was recommended by the committee. The recommendation for this repeal of an extraordinary power does reflect a matter of which the House is already well awarethe fact that our enforcement of security laws must be regularly reviewed is not a reason in any way for them to be expanded, let alone made permanent. As I've said of the powers recently reviewed by the intelligence committee, extraordinary powers introduced to meet an extraordinary threat should be periodically reviewed and repealed, if it is clear that those powers are no longer needed.

There is no doubt that Australians could perhaps always be made safer by stricter security arrangements. Australians, perhaps, could be made safer by stricter laws, but Australia is a democracy and we value our freedoms as well as we value our security. It's Labor's view that finding the right balance between our security and our rights and freedoms is a critical ongoing task that all parliamentarians must engage in. Because new threats to our national security may suddenly arise or diminish as a consequence of events unfolding overseas, or indeed in our country, it is particularly important that our national security laws and capabilities are, to some extent at least, never taken for granted as a set-and-forget proposition.

It was in recognition of the need for ongoing review of our national security laws that Labor established the Office of the Independent National Security Legislation Monitor and it was in recognition of the ongoing nature of this function that Labor fought hard for the retention of the monitor, even as the Abbott government announced in 2014 that the office would be abolished, in the misguided belief that its purpose was somehow complete. I'm pleased that the then Abbott government backed down on its proposal to abolish the Independent National Security Legislation Monitor. The continued worth of the monitor has been shown in this bill, which picked up, in a very real sense, on the 2017 review of the stop, search and seizure powers by the then Independent National Security Legislation Monitor, the honourable Roger Giles AO.

Similarly, the government's own independent intelligence review, conducted by Michael L'Estrange and Stephen Merchant, which reported in the middle of last year, recommended that the Intelligence and Security Committee should be given much broader powers of oversight.

I think that there would be general support in this place for the expansion of the intelligence and security committee's oversight role in the light of that recommendation of the government's Independent Intelligence Review report.

On 13 June 2017, shortly before the report of the Independent Intelligence Review was received by government, the Prime Minister, in a national security statement, said this:

I will soon receive the review of the Australian Intelligence Community that I tasked last year. This is a regular review, and it is a critical look at how our world-class intelligence agencies and structures must adapt to stay ahead of the threat, anticipate evolving challenges and continue to reassure us of our future security, freedom and opportunities. I will report back to the House with the government's response to these initiatives

It's a little over 12 months since the Prime Minister made this commitment, and it appears that there may be some road block to the implementation of the recommendations.

I can refer to the fact that on 23 October 2017, during supplementary budget estimates, Labor senator Jenny McAllister asked Mr Allan McKinnon, from the Department of the Prime Minister and Cabinet, whether a response of the government to the L'Estrange and Merchant report was to be forthcoming. At that hearing, Mr McKinnon, a deputy secretary of the Department of the Prime Minister and Cabinet, stated that all the L'Estrange and Merchant recommendations were being implemented, saying 'almost all of them in their original form; a couple in slightly amended form'. On 7 May this year, after Senator McAllister had written to the Attorney-General on 4 April 2018 seeking an update on the implementation of the recommendations, the deputy secretary of the department Mr McKinnon wrote to Senator McAllister withdrawing his evidence given during estimates in October 2017. There is as a consequence no longer any government response to the essential recommendations regarding greater oversight of the Australian intelligence community by the intelligence and security committee of this parliament. This House is still waiting for the fulfilment of the government's commitment to respond to its own review.

Crucially, while the government has responded positively to the limited review powers recommended by now several PJCIS inquiries, the broader oversight responsibilities for the PJCIS recommended by the government's own review have yet to be responded to, let alone introduced as legislation to the parliament. We await the formal response and look forward to the PJCIS being given the recommended oversight powers necessary to ensure that the powers of our agencies and law enforcement bodies are proportionate and balanced by the need to protect the rights and freedoms that all Australians value.

Finally, I should in this context mention what have been described as the Faulkner reforms, some of which have been realised in other ways but which nevertheless provide a useful framework which the parliament should commit to. Senator John Faulkner, who retired from the parliament in February 2015, was a fierce advocate for improved governmental transparency and accountability in our nation. He argued that in recent years Australia has benefited from professional and well-run intelligence and security agencies that have respected the parliament, the government of the day and our laws. But Senator Faulkner also argued that effective safeguards against the abuse of security powers cannot depend on the personal integrity and quality of the leaders of our agencies. Rather, it is the responsibility of the federal parliament to prescribe safeguards that keep pace with the expansion of security powers.

I agree entirely. While I personally have great respect for the law enforcement and national security officers who are currently serving our nation, it is the laws of the nation that must safeguard our rights and freedoms, and it is these laws that we are now debating. Members of the federal parliamentary Labor Party recognise that in Australia, as in many other similar democracies, the powers of intelligence and security agencies have been strengthened and expanded significantly in recent years as a consequence of the increasingly complex and unpredictable security environment.

Labor agrees that the maintenance of public safety in the current security environment requires enhanced powers for the agencies charged with this critical responsibility. However, with legislative changes extending those powers, the requirement for reliable, effective external oversight and other safeguards becomes critical to maintaining an essential level of trust in the community about agency operations.

It was Senator Faulkner's view that it is the parliament to which agencies are accountable and it is the parliament's responsibility to oversee their priorities and effectiveness and to ensure that agencies meet the requirements and standards it sets. I agree. Senator Faulkner developed a set of reforms designed to ensure that the effectiveness of parliamentary oversight of intelligence and security agencies keeps pace with any enhanced powers being given to the agencies. Labor brought forward legislation in 2015 to give affect to these important reforms. One key reform proposed by Senator Faulkner was for the Parliamentary Joint Committee on Intelligence and Security to have oversight of some operational matters of the security agencies. He came to this view before the government's own review into the intelligence committee, which I've already discussed, recommended similar powers of review.

Labor continues to press for the significant changes to the role of the intelligence and security committee that were recommended by Senator John Faulkner in reforms, which were subsequently have been taken up in a private senator's bill by Senator Penny Wong, and by the independent intelligence review of 2017. These powers of oversight go beyond the expanded powers provided for in this bill, because necessarily the reviews which are reflected in this legislation are limited to the powers that are reviewed. We look forward to the government positively responding to its own review and assisting Labor with the implementation of the Faulkner reforms.

Labor will always work to keep Australians safe and, at the same time, we will ensure that the rights and freedoms enjoyed by all Australians are upheld. Getting this balance right can be a challenging task, but that we always approach the work of the intelligence and security committee in a bipartisan and constructive manner should leave the Australian community in no doubt that Labor will always seek to ensure that the needs of safety and security are proportionate and balanced against fundamental rights and freedoms. I commend the bill to the House.