ABC Radio National Drive With Waleed Aly

SUBJECT/S: Foreign Fighters Bill; National Security; National Security Legislation Monitor.

WALEED ALY: I’m delighted to welcome to the program Mark Dreyfus, who’s the Shadow Attorney-General. Thank you for joining us on a busy, busy day.

 

MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thank you for having me Waleed.

 

ALY: Just before we get to the laws themselves, the news concerning Mohammad Ali Baryalei, this is unconfirmed, but if it were true, as seems to be the case that he’s been killed, is that actually significant?

 

DREYFUS: If these reports are true, he will be the sixteenth Australian to die while fighting with a terrorist group in Syria or Iraq. And it demonstrates why Labor in Government and the current Government are trying everything possible to stop Australians from going to participate in these conflicts. Not only, obviously, you have the consequence that it’s very possible you’ll be killed, but also the return of people battle hardened and further radicalised is a concern for security at home.

 

ALY: But does the fact that 16 of these people have been killed make us any safer?

 

DREYFUS: Well, not all of the people who have gone, the last number I think is something like 60 Australians are now there fighting, some have already returned home. Not all of them are going to be killed, some will be killed, and of course we have to be concerned about Australians being killed, we have to be concerned about Australians going over there fighting with terrorist groups and then returning to Australia, possibly with intent to do harm back here in Australia.

 

ALY: The legislation that I was talking about which would allow greater cooperation between intelligence services and the Defence Force began the day as rumour and then I understand there was legislation introduced into Parliament today that detailed that. Have you seen that legislation?

 

DREYFUS: I’ve just seen it. The Government wanted to introduce three significant amendments to the Foreign Fighters Bill, which as you said Waleed has passed through the Senate today, it’s about to come to the House, and Labor objected.

 

Labor objected because it’s not appropriate to introduce new measures that haven’t been the subject of any public scrutiny, haven’t been looked at by the Intelligence Committee, to a Bill that’s been working its way through the Parliament. We think that for every piece of legislation that the Australian Parliament is asked to debate, there needs to be an opportunity for the public to participate in that consideration. The Government was offering none, and we said that’s not the right way to proceed.

 

ALY: So you’re not opposed though in principle, at least at this stage, to the idea of this cooperation and the potential consequence, which might be that Defence can kill Australians citizens in this role, in fact actively seek them out on the basis of intelligence.

 

DREYFUS: As we understand the proposal, it builds on, and as I’ve said I’ve just now had the bill provided to me. As we understand the proposal, it builds on cooperation that’s occurred for many years between ASIS, which is our foreign intelligence service, the Australian Secret Intelligence Service, and the Defence Forces in Afghanistan.

 

What’s different about the possible involvement of the Australia Defence Forces in Iraq is that there are Australians involved, on whom ASIS may be collecting intelligence, and what’s sought here is to put a legislative arrangement around that cooperation, or potential cooperation between ASIS and the Australian Defence Forces.

 

ALY: The Foreign Fighters Bill that has passed, I understand that you proposed an amendment, a last-minute amendment, you moved one on this Bill that was ultimately rejected. What was the amendment, what were you trying to fix?

 

DREYFUS: We did, and it built on a whole lot of changes that we made to the original Foreign Fighters Bill, brought to Parliament by the Government. I’m pleased with the very many changes that were made, some of them were very significant, such as a much shorter sunset clause for a number of the extra powers.

 

But the amendment we moved today, or the two amendments we moved today, because we were not satisfied, even with all of those changes that the Government made at our insistence, and the particular provision that you asked about is in relation to the declared areas.

 

ALY: The no-go zones.

 

DREYFUS: Yes, we thought that the list of excuses, or purposes that form part of the defence in the Bill weren’t adequate. This was something that was raised in the hearing process, in the Intelligence Committee, something that very many people across Australia have raised with me. So we moved an amendment which would have provided a general legitimate purposes defence, to make sure that no innocent person’s convicted under this provision.

 

ALY: Which the Coalition then said defeats the whole purpose of the Bill.

 

DREYFUS: The Coalition rejected it and unfortunately some of the crossbenchers chose to vote with the Government and as a consequence the amendment was defeated.

 

We’ll be looking very closely at how this offence works out, whether it does produce injustice. Clearly there’s a problem about creating a criminal offence out of going to a place. That’s what it is, and it would be a criminal offence simply because the Foreign Minister declared that area to be a place to which Australians are not to go without a list of reasons that you have to come within.

 

ALY: If it’s a problem, why did you vote for it?

 

DREYFUS: We voted for the Bill because on balance, the measures that are contained in the Bill, particularly with the improvements we achieved on the Intelligence Committee, are measures that are needed to, in our view, keep Australians safe.

 

Many of the measures were suggested over the last 18 months by the Independent National Security Legislation Monitor. They’re focused on the particular problem we have of an unprecedented number of Australians going to fight in a foreign conflict, so there’s measures like improvements to the Foreign Evidence Act, changes to the process for an interim cancellation of a passport. Some of them are quite minor measures, but we think they will assist in both prosecuting people who do go to fight and, we hope, preventing people from going in the first place.

 

ALY: You mentioned safeguards that are being put in place, sunset clauses and the like. Why should Australians feel comforted by that, given I can’t think of any counter-terrorism legislation that has been marked for sunsetting that has actually been allowed to sunset. You talk about the Legislative Monitor, that operated under the previous Labor Governments, who made recommendations that certain measures such as control orders be abolished, and yet we see them only expanded. Isn’t the logic of this area actually that whatever sunset clauses you put in there and whatever monitoring you put in there, the laws only ever move in one direction and that is to encroach further?

 

DREYFUS: The Government wanted to make these three sets of powers permanent, and then it introduced a Bill that said ten years more without any review. What we’ve got is a sunset clause that brings these powers to an end two years after the next election, and legislative reviews to be carried out by the Intelligence Committee and the Independent Monitor.

 

ALY: But those reviews are routinely ignored, at least as far as the Monitor’s opinions are concerned, and on this particular Bill you had a bipartisan Senate Committee saying that it violates human rights, and the Parliament said ‘sure, we don’t care.’

 

DREYFUS: The Committee did point out there were a number of breaches of international human rights conventions that Australia’s a party to. Those same conventions say that national security may be a reason why those human rights breaches can be put to one side. And, of course, it’s good that we’ve got scrutiny by the Human Rights Committee, but we have to put it in context.

 

Labor’s view is that this Foreign Fighters Bill, as improved by the work that we’ve done on it, is an appropriate set of measures to deal with what the Director General of ASIO described recently as a real threat. It’s a threat that he also described as manageable, I think that’s important, but we have to make sure that our agencies have the power to deal with this real threat. Some of them are extraordinary measures, that’s why we need to keep them under review and not make them permanent, because they’re extraordinary measures to deal with exceptional circumstances.

 

ALY: Right, what I’m saying is that I can’t think of, maybe you can give me an example to illustrate it, but I can’t think of a case where such a review and even quite firm recommendations by those who are charged with monitoring and evaluating these things, has actually led to an amelioration of these powers.

 

DREYFUS: I think we’re in a perhaps, a relatively new environment, where we’re dealing with a particular threat of terrorism here in Australia and to some extent overseas. This started really after 2001 and there’s been a range of counter-terrorism measures put in place which are accompanied by sunset provisions. Labor has always argued very hard that there needed to be sunset provisions. We had a very large argument with the Howard Government in 2005 about the length of the sunset provision. As it’s happened, one of the powers has only been used twice, that’s the control orders power. The preventative detention orders power has never been used, and the questioning and detention warrants also not used to any degree. It was very much our position that they shouldn’t be simply extended for another ten years, certainly they shouldn’t be extended without review, and that’s why I think that where we’ve got the Government to come back to, which is sunsetting two years after the next election, following reviews, is a far preferable position.

 

ALY: All right, we’ll see what practical difference that makes, I suppose when the time arrives. Mark Dreyfus, thank you very much for speaking to us tonight, I appreciate it.

 

DREYFUS: Thanks Waleed.