SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS
Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019
30 JULY 2019
Every debate about national security legislation in this country should begin with a recognition that the powers we have given our security agencies in Australia are broader and subject to fewer restrictions and less oversight than the powers that have been given to agencies in any similar country anywhere in the world. There are no greater examples of this than ASIO's questioning and detention warrant powers. No comparable jurisdiction in the world—by that I mean Western democracies—gives such powers to its intelligence agencies.
Both powers are due to sunset on 7 September 2019 as recommended in March 2018 by the bipartisan and government-majority Parliamentary Joint Committee on Intelligence and Security. Yet, under this bill, both powers would be extended for another year. In its current form, the bill constitutes a serious breach, the second in two weeks, of the bipartisan working arrangements between the government and the Labor Party which had been premised on an understanding that the recommendations of the Intelligence and Security Committee are to be respected and implemented.
The questioning and detention powers in the ASIO Act were first proposed in 2002 and first enacted in 2003. At that time, they were regarded as extraordinary. Because they were extraordinary powers, they were introduced as temporary measures rather than as a regime defining the new normal under which Australians would have to permanently live. There are two powers at issue here: one that allows ASIO to compulsorily question an individual for the purpose of obtaining intelligence in relation to a terrorism offence, which is the questioning warrant power, and another that allows ASIO to compulsorily detain and question a person for the same purposes, the questioning and detention warrant power.
I will start by saying something about the first of these powers, the questioning warrant power. Although it has been used sparingly, we believe that ASIO should continue to have the power to compulsorily question people in appropriate circumstances subject to appropriate safeguards and oversight. But, as ASIO itself has said, the current form of the questioning warrant power is not fit for purpose and needs to be amended. The best evidence of this is that, as at May 2018, the questioning warrant power had not been used since 2010. There has been no suggestion from the government that it has been used since.
ASIO made numerous submissions to the Parliamentary Joint Committee on Intelligence and Security about how it would like to see the power amended. One of the key amendments that ASIO has asked for would enable the questioning warrant power to be used to gather intelligence in relation to espionage and foreign interference investigations. Currently, it can only be used to gather counterterrorism intelligence. ASIO has for some time been sounding the alarm over the threat of espionage and foreign interference. It is a threat that the Director-General of Security and head of ASIO, Duncan Lewis, has described as one that can 'inflict catastrophic harm on our country's interests'. In May 2018, a few months after the intelligence and security committee handed down its report in relation to the questioning warrant power, Mr Lewis said in relation to counter-espionage:
… as I've stated publicly, foreign powers are actively undertaking espionage and foreign interference in Australia. I've said before ASIO assesses that the current scale of foreign intelligence activity against Australian interest is unprecedented. Espionage, interference, sabotage and malicious insider activities can inflict catastrophic harm on our country's interests. They potentially undermine our sovereignty, our security and our prosperity. Foreign actors covertly attempt to influence and shape the views of members of the Australian public, the Australian media, officials in the Australian government and members of the diaspora communities here in Australia. Foreign states maintain an enduring interest in a range of strategically important commercial, political, economic, defence, security, foreign policy and diaspora issues. Clandestine interference is designed to advance the objectives of the foreign actor, to the detriment of Australia and to our national interests. In some instances, the harm from espionage and foreign interference is immediately evident and in other instances, of course, the harm doesn't materialise for years and potentially for decades.
In a recent interview, Mr Lewis said that the threat of terrorism has 'plateaued' and reiterated that foreign interference in Australia is at 'an unprecedented level of activity'.
It is against this backdrop that the bipartisan intelligence and security committee gave the Minister for Home Affairs until 7 September 2019 to propose appropriate amendments to the questioning warrant power to empower ASIO to better respond to this rapidly growing threat to our national interest. With the 7 September 2019 deadline fast approaching, the minister has finally provided his response to the bipartisan intelligence and security committee's—and ASIO's—recommendations. And what is that response? In essence, the Minister for Home Affairs says—and it's the Minister for Home Affairs in what can only be regarded as a very tired, third-term government—'I haven't got around to giving ASIO the powers it needs, but maybe I'll get around to doing it in another year.' Perhaps the minister was too busy planning his career advancement by bringing down Prime Minister Turnbull rather than focusing on his urgent ministerial responsibilities.
This bill highlights two things very clearly: the Minister for Home Affairs' incompetence as the minister responsible for Australia's national security, and the minister's indifference to the role of parliament and fundamental democratic principles. In relation to the minister's competence, the House should note that the then Independent National Security Legislation Monitor, Roger Gyles QC, told the government more than three years ago that the questioning warrant power needed to be updated, and offered detailed guidance as to how to do this—that was three years ago. And it's worth repeating that the Parliamentary Joint Committee on Intelligence and Security told the Minister for Home Affairs in March 2018 that the questioning warrant power needed to be updated urgently, with a deadline of 7 September 2019. ASIO told the Minister for Home Affairs that the questioning warrant power needed to be updated by 7 September 2019. The intelligence and security committee and ASIO also offered the minister detailed guidance about how to do this. For well over a year, the Labor and Liberal members of the intelligence and security committee have been waiting for the minister to introduce a bill that would make the necessary amendments to the questioning warrant power. He has failed to do so.
I now turn to the second of the powers in question, the questioning and detention warrant power, and this minister's indifference to parliament and foundational democratic principles. The intelligence and security committee—which, it's worth saying again, is a government majority committee that, up until now, has been able to proceed on a bipartisan basis, with the government accepting its recommendations—also told the minister in March 2018 that the questioning and detention warrant power should be repealed on 7 September 2019. Three different Independent National Security Legislation Monitors—that's every Independent National Security Legislation Monitor since that office was created—and ASIO itself have also said that the questioning and detention warrant power should be repealed.
Under the questioning and detention warrant power, the executive government of Australia has the power to pick up a person without warning, detain them in a secret security facility and question them there for up to seven days. This power can be exercised against any Australian resident without any requirement that the person be suspected of any wrongdoing. The detained person may also be imprisoned if he or she fails to give any information required by the government, and they enjoy no privilege against self-incrimination and may be sent to prison for disclosing the fact that he or she has been detained or questioned. So an Australian woman could be taken off the street for seven days, held and questioned in a secret detention facility and then be sent to prison for five years for simply telling her boss why she couldn't come to work for a week. Even if her boss threatened to fire her for her absence, she couldn't say anything. A man could be sent to prison for telling his wife why he hadn't come home for seven nights. Even if she threatened to leave him, he couldn't say anything about where he'd been without committing a very serious criminal offence. The power is wrong in principle.
The national security legislation monitor appointed by Tony Abbott as Prime Minister, the Hon. Roger Gyles AO QC, described the power in the following terms:
A warrant enabling a person to be detained in custody, virtually in communicado, without even being accused of involvement in terrorist activity, on grounds which are kept secret and without effective opportunity to challenge the basis of his or her detention.
To use the words of former High Court Chief Justice Sir Gerard Brennan: 'on the basis of intelligence' in relation to a terrorism offence is an extraordinary power. Further, the decision on whether the grounds to make a questioning and detention warrant application, rather than a questioning warrant application, lies with a member of the executive. No precedent in any comparable country has been identified. Mr Gyles went on to describe the power as 'odious'—and, as a practical matter, the power has never been used. It has played no role in keeping Australians safe since it became part of Australian law in 2003. Let me repeat that: the questioning and detention warrant power has never been is by the government—not once. It has played no role in keeping Australians safe.
As a result of his own rank incompetence the Minister for Home Affairs and his Prime Minister have unconscionably sought to place the Parliament of Australia in the position of having to choose between rejecting this bill, and thereby leaving ASIO without any questioning power at all for however long it takes the Minister for Home Affairs to get his act together, or agreeing to the bill and, in so doing, leaving an extraordinary, odious and totally unnecessary power on the statute books for another year despite receiving and accepting multiple recommendations for its repeal. Labor will not help the government cover up for the Minister for Home Affairs' incompetence, but nor will we allow ASIO or the Australian people to bear the consequences of that incompetence. That's why I'll be moving an amendment to the bill to extend the sunset date on the questioning power—a power ASIO has used before and for which ASIO has said there is a continuing need—to December of this year. That will give the Minister for Home Affairs, and the 20,000 or so people who work for him, time to propose a revised questioning framework as recommended by the intelligence and security committee, as recommended by the government's own national security legislation monitors and as recommended by ASIO.
If there is a very good reason why the minister has not done anything in the three years he has had notice of this, since Mr Gyles told him that this needed to be done—or, to take a lesser period, in the 18 months or so since the minister has been told by the intelligence and security committee that this power needs to be amended—if there is some reason why he needs more time, he needs to make that case. And he hasn't made that case. Contemptuously, the Minister for Home Affairs has simply failed to explain anything about why this bill is before the parliament and about why he is not following the recommendations he has had from multiple sources. The amendment I will move will also ensure the repeal of the odious questioning and detention warrant power on 7 September 2019—a power which has never been used, has played no role in keeping Australian safe and has no place in Australian law.
No doubt, the minister and his mates will seek to falsely characterise Labor's position on this bill as an attack on the agencies or as undermining national security. There is apparently no limit to what the Liberal Party will say in order to cover for the incompetence of this Minister for Home Affairs. The truth, of course, is that Labor has an extraordinarily good record on national security and we support the work of our agencies. It was a Labor government that established ASIO. It was a Labor government that had the courage and foresight to establish the first and second Hope royal commissions in the 1970s and 1980s. As every independent review of Australia's security and intelligence framework in the last three decades has acknowledged, the governance framework of the entire Australian intelligence community is based on the findings and recommendations of those Labor established royal commissions. The strength of our intelligence agencies, including ASIO, is built in those foundations.
It was a Labor government that established the Office of the Inspector-General of Intelligence and Security. It was a Labor government that established the Office of the Independent National Security Legislation Monitor and that successfully resisted an attempt, in the first term of this terrible third-term government, to repeal that vital office as mere 'red tape'. It was a Labor government that established a parliamentary committee in relation to intelligence and security committees. Today, that committee is called the Parliamentary Joint Committee on Intelligence and Security. The irresponsible and ignorant suggestion by the Minister for Home Affairs that Labor's record on national security is anything but outstanding does not withstand even the slightest scrutiny.
As I said last week, all of us in this parliament love Australia. All of us in this parliament want Australia to be safe and secure. All of us want to see Australians prosper. None of us want to see Australia lose its character as a confident, free and democratic country. All we in Labor are asking the government to do today is to stop seeking to exploit national security matters for a base marketing ploy to pump up the government's flaccid tyres and to stop trashing longstanding bipartisanship and cooperation on national security matters in an attempt to continue to promote its party political interests, because bipartisanship on national security matters has served our nation well for many years and partisanship—including the recent denigration of the Parliamentary Joint Committee on Intelligence and Security as 'just another committee', the recommendations of which the government thinks it can ignore—does not serve our nation's interests. We are asking the government to quietly and efficiently get on with doing its job—no more, no less.
Finally, in terms of what a revised questioning warrant framework might look like, the Intelligence and Security Committee and the Independent National Security Legislation Monitor, Mr Gyles, have provided the minister with considerable guidance. In fact, the Intelligence and Security Committee has an entire chapter in its report which considers the principles that should underpin a future compulsory questioning model. The 2016 Independent National Security Legislation Monitor, the Hon. Roger Gyles AO QC, recommended that the questioning warrant power be replaced with a questioning power following the model available to the Australian Criminal Intelligence Commission. The Law Council of Australia supported that recommendation, partly on the basis that it would be desirable to have consistent, compulsory questioning models across agencies. There is considerable merit in that proposal. That said, and as I noted earlier, ASIO itself put forward a preferred model, which is set out in summary form in the intelligence committee's report. That proposal also warrants careful consideration.
I encourage the Minister for Home Affairs to read the committee's report. Perhaps I should encourage the Minister for Home Affairs to also read the report of the Independent National Security Legislation Monitor. I implore the minister to stop making excuses and to get on with the job of designing a revised questioning warrant framework for 2019. When he does so, I give my commitment that Labor members of the parliament will engage in the task of assessing that framework in the spirit of constructive bipartisanship on national security that has served our nation for many years. I now move the amendment to the motion for the second reading:
That all words after "That" be omitted with a view to substituting the following words:
"whilst not declining to give the bill a second reading, the House:
(1) notes that:
(a) the Government has failed to implement any of the recommendations made by the bipartisan Parliamentary Joint Committee on Intelligence and Security in relation to the Act in March 2018;
(b) the committee recommended that the questioning and detention warrant power be repealed by 7 September 2019;
(c) the committee and ASIO also told the Government that the questioning warrant power needed to be amended by 7 September 2019 because, in its current form, it is not fit for purpose; and
(d) the Minister for Home Affairs has failed to produce a revised framework for the questioning warrant power; and
(2) is of the view that:
(a) this bill highlights the Minister for Home Affairs' incompetence as the minister responsible for Australia's national security and his indifference to Parliament and foundational democratic principles;
(b) the Government should get on with the job of amending the questioning warrant power as a priority, as recommended by the Committee and by ASIO;
(c) legislation to amend the questioning warrant power framework in the Act should be introduced during the first sitting week of September 2019 and referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 18 November 2019, with a view to the legislation being considered by the House during the last sitting fortnight of 2019; and
(d) the Government should repeal the questioning and detention warrant power, which ASIO has never used".