Counter-Terrorism (Temporary Exclusion Orders) Bill 2019

 

Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 2nd Reading

MARK DREYFUS
SHADOW ATTORNEY-GENERAL
SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS

 

Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 2nd Reading

 

23 JULY 2019

 

Mr DREYFUS (Isaacs—Deputy Manager of Opposition Business):  I move:

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 in full at least 10 recommendations of the bipartisan Parliamentary Joint Committee on Intelligence and Security, without explanation;

(b) this is the first time since 2013 that this Government has ever openly rejected recommendations of the bipartisan committee; and

(c) this rejection constitutes a significant breach of the compact between the Opposition and the Government on national security bills, which is premised on an understanding that the recommendations of the bipartisan committee are to be respected and implemented; and

 (2) is of the view that:

(a) it is not the job of this Parliament to act as a rubber stamp for Government bills; the Parliament's job is to get legislation right;

(b) this bill should therefore be amended so that it conforms faithfully to the detailed recommendations of the bipartisan Parliamentary Joint Committee on Intelligence and Security; and

(c) this bill should be referred back to the bipartisan Parliamentary Joint Committee on Intelligence and Security for further scrutiny".

When the Hawke Government introduced legislation in 1986 to establish the first parliamentary committee to oversee Australia's intelligence services, the then Deputy Leader of the Liberal Party expressed outrage. He declared that the then Labor government's modest proposal for parliamentary oversight gave 'one very grave doubt about whether they are loyal to this country'. Seriously.

The National Party MP, Peter McGauran, who would go on to become a cabinet minister in the Howard Government, called the Hawke Government ‘traitors’ during the same debate. Some things never change.

In relation to this bill Senator Mathias Cormann told reporters yesterday:

‘The Labor Party needs to decide which side they're on. The Australian government, we are on the side of keeping Australians safe.’

This Prime Minister backed those comments. I need to make a few things clear. When Labor stands up for parliamentary oversight and scrutiny of legislation to ensure that laws operate as intended and do not result in unintended and undesirable consequences and are subject to proper safeguards, the Liberals resort to cheap smears and questioning of allegiance.

The parliamentary committee established by the Hawke Government in 1986 is now called the Parliamentary Joint Committee on Intelligence and Security. A lot has changed since then.

The Liberals have liked to say that they respect the role of the Parliamentary Joint Committee on Intelligence and Security. And, in fact, up until the end of last year, I think it was fair to say that the Liberals lived up to what they say they like to do, which is to respect the recommendations of the Parliamentary Joint Committee on Intelligence and Security on which, of course, they have a majority. There are 11 members of the Parliamentary Joint Committee on Intelligence and Security - five senators, and six members of the House of Representatives - and six of the members of the committee are from the government. It's a government controlled committee. And consistently with that, this Liberal government, now in its third term, up until the end of, really, 2018 when we got into difficulty over the assistance and access bill, has not openly rejected a single one of the committee's recommendations to improve national security bills.

When they failed to implement all of the recommendations of the committee, in relation to the assistance and access bill in December of 2018, the Prime Minister and the Minister for Home Affairs—perhaps because of their repeated claim that they liked to respect the recommendations of the Parliamentary Joint Committee on Intelligence and Security—felt compelled to at least pretend on that occasion that they had fully implemented all of the committee's recommendations, and they haven't stopped pretending completely.

On this bill, the Minister for Home Affairs has made the claim - it's a false claim but it's his claim - that the Government has only rejected two of the committee's recommendations in relation to this bill. That's what he said in his largely misleading second reading speech given on 4 July in respect of this bill.

It's regrettable that the minister has chosen to simply gloss over the very detailed work that was done by the Parliamentary Joint Committee on Intelligence and Security, detailed work that was done at the urging of the government in a great hurry, because although this bill is claimed by the government to be modelled on an English piece of legislation, that English piece of legislation was passed in 2015.

This government announced that it was going to do this legislation late last year. They finally got around to bringing legislation into the House in February. They insisted the parliamentary joint committee conduct urgent hearings and provide an urgent report, which the committee did. The committee worked hard together in its bipartisan fashion, as the committee has done for so long, to produce 19 recommendations, the 19th of which was that the bill be passed. But, regrettably, of the 18 remaining recommendations, in the first sitting fortnight of this 46th Parliament we have this Prime Minister proposing to reject 10 and possibly 11 bipartisan recommendations that related to this bill.

It doesn't actually stop with this bill. Just to mention it, on a separate bill that we are going to be debating during this sitting fortnight, which is the sunsetting of special powers relating to terrorism offences bill, the Prime Minister's there proposing to reject two bipartisan recommendations of the Parliamentary Joint Committee on Intelligence and Security.

With a wave of the hand we've had the Prime Minister and his Minister for Home Affairs breaching the compact that has existed for so many years between the Coalition and Labor on national security legislation, which is based on the understanding that the recommendations of the committee are to be respected and implemented. This is no small thing that the government is doing in breaching this compact.

The national interest is served by this committee working to achieve bipartisan recommendations. The national interest is served by this committee working in a bipartisan fashion, because when that occurs it builds the confidence of the Australian community that the national security laws, which is being passed in this place - many of which provide extraordinary powers for our agencies and many of which permit our agencies to act in secret on our behalf - bipartisanship builds confidence in the Australian community that the laws that are being passed are good laws, are appropriate laws and are laws that are truly going to work in the national interest.

Before continuing, I'd like to say a little bit more about the way in which the government has sought to frame this debate and the techniques that they've employed to do it, techniques that include the impugning of the motives of anyone who disagrees with them, and misleading journalists and misleading the Australian people about what the bill does, who it would apply to and why it's needed.

In his eulogy to Bob Hawke, delivered recently, the Prime Minister of Australia declared:

we will rightly honour Bob Hawke’s many achievements for our economy, for our security, for Indigenous Australians, for our society, and Australia's place in the world.

And as a Liberal, I'm honoured to acknowledge these achievements, as I know others would be.

But if the Prime Minister, who lauded Hawke's many achievements for the security of Australia, had been in the parliament in 1986 would he have joined his Liberal colleagues to ask Bob Hawke whose side he was on?

As Prime Minister, Bob Hawke understood the need to keep this nation safe. Labor to this day understands the need to keep this nation safe. Bob Hawke understood that in a democracy the job of parliament is not to act as a rubber stamp for government bills. The job of this parliament is to scrutinise legislation. The job of this parliament is so debate legislation. The job of this parliament is to improve legislation which is brought to it by the government.

That understanding did not make Bob Hawke weak. It made him strong and it made Australia strong, and this government seems to have completely lost its way in understanding what the role of this parliament is and in understanding what the role of parliamentary committees is. I hope that those on the other side, the Liberal members of the House of Representatives who are members of the Parliamentary Joint Committee on Intelligence and Security - one of whom is present in the chamber right now, the member for Berowra - will understand that it's incumbent on them to back in the recommendations that they made to this parliament.

And when they have agreed in unanimous recommendations - and we have there also the chair of the committee, the member for Canning, Mr Hastie - when they have signed up to those recommendations, I am expecting to hear from them in this debate that they back in the recommendations that they made not two years ago, not one year ago, but in April of this year.

The Minister for Home Affairs has read an extraordinarily short second reading speech. He hasn't explained why it is that the Government is ignoring the recommendations of the committee. He's put forward no evidence to this parliament, let alone agreed for the matter to go back to the committee, which is what should happen. The minister has put nothing before this parliament as to why these recommendations - all 11 of them - that the Government is ignoring should be ignored, or disagreed with, or changed, or something quite different. Because, make no mistake, the bill that's before this parliament is a very different bill to the bill that was brought to the parliament in February, the bill that was examined by the Parliamentary Joint Committee on Intelligence and Security. And it's not a different bill because the Government has chosen to accept the recommendations of the committee; it's a different bill because the Government wants to make it different, for reasons that it is choosing not to explain to this parliament and not to explain to the people of Australia.

This Liberal Party, including the so-called constitutional conservatives in their ranks, appear to be unable to grasp basic principles about the functioning of this parliament basic principles about the functioning of the Parliamentary Joint Committee on Intelligence and Security. And instead of engaging with the parliament - which you would think that the very least this incompetent Minister for Home Affairs might think he should do when coming to the parliament with a bill that is as different to the bill brought in February - the very least would be to deign to explain to the parliament why it's different, perhaps in an attempt to at least convince his own members - the Liberal members of the House of Representatives who are members of the parliamentary joint committee - as to why the bill in the form he's bringing it to the parliament should be supported. But instead of engaging in argument, instead of playing the proper role that a minister of the crown should be playing in this place, we see this Prime Minister and all of this ministerial colleagues resorting to the same cheap smears about patriotism and loyalty to this country.

There is a very long and very sorry history of accusations of treason and disloyalty being thrown about for base political purposes, and worse. And I have in mind authoritarian governments around the world that throw those accusations around. By doing down that path, this government is aping a political technique that's been used by some of the worst regimes in history.

It's a sorry day that this Liberal Party has come to - that they will behave in the way that they are choosing to behave on this bill. And I say to the Prime Minister: 'You, Prime Minister, need to stop it. You need to tell your ministers to stop it. You need to remember that you are governing for Australia, governing for the Australian people and not constantly looking just to score a cheap headline.' Because that's all we've seen from this Prime Minister since the day that he was elected Prime Minister by the Liberal Party.

We've certainly seen no change from that looking to score cheap political points and looking for the cheap headline and seeking to say all the time, not that they are governing for Australia, not that legislation is being brought in because it is in the national interest but that the legislation presents a test for Labor. That is no way to use the processes of this parliament. This parliament is not set up to provide a test for the political opposition of Australia and it's not set up to provide a test for Labor; it's set up so that this parliament can bring into law legislation that is actually in the national interest, and that's what we expect to hear from this government.

When Labor was last in government, we kept Australians safe. There was not a single death due to an Islamist-inspired terrorist attack in Australia during Labor's six years in office, between 2007 and 2013. By contrast, seven Australians have lost their lives to terrorist attacks on Australian soil in the six years since the Coalition came to power.

If those lives had been lost under a Labor government, I have no doubt that this incompetent Minister for Home Affairs would say that the blood of those Australians was on my hands or on my colleagues' hands. Regrettably, from his conduct I have little doubt that the Prime Minister would stand behind his Minister for Home Affairs.

But Labor does not engage in that damaging rhetoric. I will not engage in that sort of rhetoric now, because all of us in this parliament love Australia. All of us in this parliament want Australians to be safe and secure, all of us want to see Australians prosper, and none of us want to see Australia lose its character as a confident, free and democratic country. Let's have no more talk that suggests anything other than that sentiment—the belief, the feeling of every single member of this parliament.

The debate over this bill, and over every other national security bill that comes to be debated in this place, is not, and it never is, a debate over 'Whose side are you on?' It's a debate about how: how do we ensure that our agencies have the powers they need to keep Australians safe; how do we ensure that the powers that we are choosing to give to our agencies will not be abused or misapplied; how do we balance Australia's national security with the need to uphold the rule of law and the rights and freedoms that define us as a democratic nation?

Labor's concerns with this bill - the form in which it was brought to the parliament by the Minister for Home Affairs on 4 July - are about the how. We are concerned that this bill may be unconstitutional. The government has done nothing to address those concerns. Just to pause on that for a moment, in the additional comments that Labor members made in the report of the Parliamentary Joint Committee on Intelligence and Security - and it's rare for Labor members to make additional comments; usually the reports are simply unanimous reports and there's no additional comment, unlike in many reports of committees of the Senate - what we said was this:

While we have ultimately decided to recommend that this Bill be passed (with amendments), Labor members are concerned that a number of issues have not been adequately scrutinised by this Committee in the limited time available.

Most fundamentally, Labor members note that the President of the Law Council of Australia, Arthur Moses SC, and Professor Helen Irving (among others) have stated that the Bill is unconstitutional on the basis that it infringes the constitutional right of abode. Neither the Department of Home Affairs nor any other government representative has sought to engage with - or has disagreed with - the arguments put forward by Mr Moses or Professor Irving.

Clearly, Australians are not made safer by laws found to be unconstitutional.

The committee has sought to address the constitutional concerns that have been raised by submitters by recommending that the government obtain legal advice from the Solicitor-General on the constitutional validity of the final form of the bill. Labor members of the committee do not believe that this recommendation goes far enough.

The reason for that is that this government has form for misleading the committee, for misleading the parliament and for misleading the people of Australia about the constitutionality of an earlier national security bill. We know that because the former Solicitor-General, Justin Gleeson SC, said so in a Senate committee inquiry hearing.

He explained that the former Attorney-General, Senator Brandis, had misled the committee, this parliament and the public of Australia as to his own - that is, Mr Gleeson's - advice about the constitutionality of a particular piece of legislation.

It's not good enough for the government to simply assert, 'Nothing to see here' or 'No problems here.' We've had cogent arguments put forward in public by eminent constitutional lawyers. This government owes it to the parliament to explain why it is that this bill is in fact constitutional. Up until now, it has done nothing of the kind.

We are concerned that the bill as presented to parliament contains basic drafting errors. That was so in respect of the bill that the committee reported on in April. The government has refused to fix those basic drafting errors. We are concerned that the government has released at least 10 and proper 11 recommendations of the Intelligence and Security Committee without any explanation, because nothing in the second reading speech - the short second reading speech - made to this place by the Minister for Home Affairs on 4 July goes even close to explaining why it is that the government has rejected these recommendations.

We are concerned that the government is falsely claiming that it is rejecting only two recommendations of the committee, as if to minimise the significance of the government's breach of bipartisanship on national security. I hope that we are going to hear from all three of the Liberal members of the committee who unanimously voted for the recommendations that the committee made on a bipartisan basis. I hope that we're going to hear from all of them. I see the member for Berowra is next in line. No doubt he's going to be telling this parliament that he intends to cross the floor to support the amendments that we have foreshadowed - I see the minister's adviser looking anxiously from the box towards the member for Berowra, perhaps worrying that he might in fact cross the floor to keep faith with the recommendations that he made as a member of the committee - and he has to, because he wanted the bill to be amended in the fashion that the committee set out in its report, and it'll be very disappointing if we don't hear support from the member for Berowra as to why it is that the Government has got this wrong.

We are concerned that, in an effect to avoid debate on the very considerable merits of the committee's recommendations, the Government resorted to misleading journalists and the Australian people about what the bill does, who it would apply to, and why it's needed.

Our overriding concern is the Government is more interested in playing politics with the national security of Australia than it is in getting national security laws right. And let's be clear - I need to state it again - Labor supports the intent of this bill, we want to work with the government to get this bill right.

The amendments that I'll be moving in respect of the bill will ensure that the bill confirms to the unanimous and bipartisan recommendations of the Labor and government members of the intelligence committee, no more, no less. But we don't pretend that our amendments address every concern that's been raised about this bill.

For instance, it's been increasingly suggested that the use of the powers in the bill could in some circumstances actually increase the likelihood of innocent Australians being the target of terrorist attacks overseas. Clearly a suspected terrorist who has freedom of movement in a foreign country will pose a much greater danger to innocent Australians than the same person would pose to Australians from a prison cell at home.

We've seen numerous examples, during the time that the caliphate was ruling over Raqqa province in Syria. We've seen numerous examples of Australian nationals broadcasting messages to Australians at home, from Raqqa, in an endeavour to recruit them to the Islamist cause, to the cause of ISIL.

One could want no better example than the recruiting activities of Neil Prakash, an Australian who served in the forces of ISIL, who is now languishing in a Turkish jail, who is the subject of an extradition request by Australia which, I would hope, will again be activated when Mr Prakash has served the prison term that's been imposed on him by a Turkish court. We can find no better example than the activities of Mr Prakash, broadcasting to Australians using, in particular, social media and other resources of the Internet to endeavour to recruit Australians to carry out acts of terror here in Australia or to travel to join him in the service of Islamic State in Raqqa province. Happily, a regime that has now come to an end.

That's the point about saying that the Government really needs to consider, if this bill passes, and if the provisions that are contained in these bills become law, that they do, after all, create only a discretionary set of powers. I would be urging the government, and Labor would be urging the government, to ensure that, if these powers do become part of Australian law, that the powers are used sparingly.

I perhaps need hardly remind the government, and remind this parliament, that the greatest loss of Australian lives in a terrorist attack did not happen on Australian soil but happened in Bali. Many, many more Australian lives have been lost to terrorism overseas than on our shores and that's why we've had the call from our great ally, the United States of America, through Secretary of State Mike Pompeo, who has called on all countries of the world who have nationals in camps in Syria or nationals who are in detention centres that are having maintained in Syria, Mike Pompeo, as Secretary of State of the United States, has called on all countries of the world to take their nationals back.

We in Labor accept the need for a power in some form to enable the management of what now appears to be a very small number of Australians who are seeking to return to Australia having engaged in terrorist acts overseas, Australians who have fought with ISIL, Australians who put themselves at the service of the caliphate and engaged in terrorism there.

The reason why, and it's apparent from his words and the words of other officials of the United States Government, it's also apparent from the words of the officials of the Kurdish regime, they want countries to take their nationals back because they are concerned about the impact of those people who have been engaged in terrorism continuing to be at large, posing a threat, not only to Australians overseas but posing a threat potentially still to Australians here in Australia and posing a threat to all peoples of the world if they are not brought under control, if they are not brought back and charged with the criminal offences that, under our law, they did commit in Raqqa in the service of the caliphate and that’s primarily what ought to happen.

At the moment, regrettably, the Government's bill does not even require the minister to turn his mind to the risks posed to innocent Australians overseas.

That's one of the reasons why we are asking for this bill to be referred back to the Intelligence and Security Committee for further scrutiny. It is one of the reasons why the Prime Minister should agree to this request that the bill be referred back to the committee.

Labor is focused on working towards a bill that will withstand constitutional challenge, a bill that is subject to appropriate safeguards and oversight and a bill that actually does what it intends to do, that is, to keep Australians safe. We ask the government to abandon the cheap politics, to start acting like a government that governs in the national interest and to join us in this endeavour.

 

ENDS


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