Doorstop, Canberra 24 September 2014

SUBJECT/S: Foreign Fighters Bill; National Security.

MARK DREYFUS, SHADOW ATTORNEY-GENERAL: There is no higher responsibility for an Australian government than protecting the safety of our citizens. Labor welcomes the release by the Government of the Foreign Fighters Bill, which is, we understand, going to be introduced in the Senate this afternoon.

While we can say that we recognise the responsibility that government has to protect against threats posed, for example, ISIL, equally there is a need for public scrutiny, public discussion, public consultation about measures such as we see in the Foreign Fighters Bill.


The Government has called for the bill to receive expedited treatment. We think that it is possible for, we agree there should expedition in the handling of this bill. We think going to be possible to shorten the public consultation to perhaps four weeks and expedited public hearings could follow after that period of public consultation.


The Government has agreed to refer the Foreign Fighters Bill to the Intelligence Committee, something that Labor has asked for.


JOURNALIST: How would you describe the incident last night?


DREYFUS: The incident last night is obviously very, very concerning. We’re still waiting to hear the condition of the officer who last night was in a critical condition and our thoughts go out to both officers who were involved in what was a terrible incident. We’re still waiting to receive more details of what actually occurred.


JOURNALIST: Just on the Foreign Fighters legislation, can you just go through what reservations Labor does have and if you anticipate any amendments at this stage?


DREYFUS: I think it’s better to start positive and say that there are some measures in this bill which are simple, practical measures that have been suggested some months back, that Labor will be readily able to support. And what I have in mind there, by way of example is a proposal to allow for the temporary suspension of passports to prevent people from going to join in a conflict at the present time in Syria or in Iraq.


That’s a proposal that was put forward by the Independent National Security Legislation Monitor back in March. It seems a very practical proposal. We know it’s something the agencies have asked for. They have been cancelling passports for about two years now, but the process is a little bit cumbersome and that’s why the Independent National Security Legislation Monitor suggested that it be speeded up.


So that’s something that is a practical proposal. Another one is some proposals in the bill that would change the provisions in the Foreign Evidence Act, to make it easier to charge people who have participated in these foreign conflicts. And again that is likely to be – we’ve got to look at the detail, obviously - but that’s likely to be something that Labor would support.


JOURNALIST: That is now in black and white now, though isn’t it, the evidentiary proof is in this bill and I think there is a line in there that actually says “subverting society” and that’s the descriptor that is used for anyone that goes overseas. Is that acceptable in your eyes?


DREYFUS: I’d have to see the exact context. It does seem an unusual phrase. If I could just go on to say, so there’s a couple of examples of practical proposals that I think it’s likely that Labor will support. There are other proposals in this bill about which there have been concerns expressed for some time, since the Prime Minister announced them on 5 August, and that would be the so called designated areas provision, where it’s proposed to bring in a new law – and it would be an unprecedented law in Australian terms, and I suspect on an international basis it’s unprecedented – that a government would be able to designate an area to which no Australian citizen could travel without committing a criminal offence.


There’s a list of reasons offered in the bill which would be accepted as legitimate reasons and thus you wouldn’t be committing a criminal offence if that was your reason for going to the particular area. But it’s readily apparent to anyone who reads this that it’s not a complete list.


I was able to think straight away on reading the provision that, I’ll just give couple of examples, if you’re home was in Syria, if you were a dual Australian Syrian citizen, and there are many people who have that status. Perhaps you’re a doctor living in some part of Syria with your family and children, you might have been living there for five years. At present that wouldn’t be a proper reason for being in the designated area.


JOURNALIST: (inaudible) family reasons, though, in the legislation.


DREYFUS: It doesn’t say family reasons. It talks about family members, but there if you were visiting your-


JOURNALIST: (inaudible) family members-


DREYFUS: -If you were visiting your girlfriend. I’m talking about it being your home, you’re not visiting, it’s being your home.


Another example that readily sprang to mind, you might be visiting your girlfriend or you might have some religious reason. There’s a whole host of reasons, perfectly legitimate reasons, that Australians might have for being in a particular area. It’s a provision that as presently drafted says that it doesn’t matter if whether you know of the designation or not, that’s got to be a concern. So, on its face it’s a provision which appears to conflict with the right to freedom of movement, the right to the presumption of innocence, the right to silence. That’s clearly something, because it’s an unprecedented provision, that Australians are entitled to be properly consulted about, participate in a discussion about, and have a big think about whether or not it’s in fact workable, unlike the passports provision, which clearly adds to the useful powers that are available to our authorities to stop people going to Syria and fighting. It’s not absolutely clear that this would be of great use to the authorities in any event.


Another provision that would be of concern that’s one of the proposals that we now see in this bill is a proposal to remove the sunset provision from an existing power, which is the preventative detention orders power. Now, the curiosity about that is that both the Independent National Security Legislation Monitor and a COAG review last year both recommended that this power be repealed. There’s been a number of concerns expressed by senior officers of police forces around Australia, saying that it is a useless power because you cannot question, you cannot take forward the ordinary police and intelligence investigation processes once you’ve used that power.


JOURNALIST: So those two provisions, the designated areas plus the changes to the sunset clause, is that something that Labor would want to strike out of the changes, or something would you be willing to negotiate?


DREYFUS: The question was, are there matters in this bill that warrant further scrutiny and possibly raise concerns. I’ve identified two. We have not adopted a final position on any of the provisions in this bill, nor should we because that’s why we have public consultation. We’ve been given, up until late last night when we got the bill, very, very little indications of what it would contain, or how the provisions in it would work.


It’s appropriate when governments are proposing to curtail Australians rights and freedoms, rights and freedoms that are a very important part of our way of life, that the Government make the case for why those changes should occur.


JOURNALIST: Can I just bring up changes in the legislation that might not sit well with people as well is that the legislation would allow for the AFP to apply for secret warrants to search someone’s place without them knowing, and completely separate to that, the legislation would seem to suggest that the Government wants to keep for a period of time those infrared photos that are taken of people’s bodies at the airport. What do you think about that?


DREYFUS: That’s something you’ve picked up on a close reading of 158 page bill, which amends more than 20 acts of Parliament. I think that the second point you’ve made there is something that comes out of the changes to provisions for biometric information to be stored. We are moving towards the use of biometric information for screening at airports, as part of passport processes, border control processes.


It’s a matter for the fine detail to be looked at as, as I say, we got this bill late last night. You’ve said that that’s something that people might be concerned about. That’s something we need to have a public discussion about and that’s why it’s appropriate that this bill go to the Intelligence Committee, that there is a period for public consultation, so that legal organisations, community organisations, human rights organisations, can closely scrutinise the provisions of the bill. Because I don’t think anyone would suggest, with the best will in the world, that when you produce legislation like this, between a press conference on 5 August and releasing it to the public on 23 September, you are necessarily are going to have got every single provision right. I think one of the things we saw from the last bill, which is now going through the Parliament, which Labor is supporting with the amendments that came out of the scrutiny process of the Intelligence Committee, you can see from that that there is a value in having parliamentary and public scrutiny because it produces beneficial changes.


The Intelligence Committee recommended some 16 changes to that first National Security Bill that’s now being debated in the Senate and the Government accepted all those amendments.


JOURNALIST: The man who was fatally shot last night, he was 18 years old. Does that underline the sickening and tragic nature of what’s happened?


DREYFUS: As I said we’re waiting for more details, of course this-


JOURNALIST: (inaudible)


DREYFUS: I understand that he’s 18 years old, but we’re waiting for more details about the event. I know little more at this stage than what I’ve heard in news reports, which is that the man was acting alone, that this was an isolated incident. Of course it’s tragic, of course we’re very concerned about the two police officers who were injured in this dreadful attack and it is a concern.


JOURNALIST: Just one more question, just on the face of it when it comes to the legislation, it replaces in the legislation “engaging in armed hostilities in a foreign state” with “engages in subverting society”. I know you haven’t been through all the pages of it, but on the face of it why is that change necessary, do you think?


DREYFUS: That’s a question – I can see you’ve really studied the detail Laura, that’s good – and I’m still working through it. As I said it’s 158 page bill.


That’s really a question that has to be directed to the Government. On the face of it, it is somewhat curious language to be using. I’m in favour of plain English drafting in legislation. This is an old favourite of mine. I think we should say what we mean in the laws of Australia and if our task here is to criminalise fighting with terrorist organisations in foreign countries, in incursions and in civil conflicts, then we should say so in the legislation. I’m going to have to look at the phrase you’ve mentioned “subverting society” to try to work out what the Government intends by it, but it’s, I hope, a question that the Government will be able to answer later today or in coming days as to why this phrase has been used.


JOURNALIST: This all sounds like a legal minefield, doesn’t it?


DREYFUS: It sounds like what it is, which is a very substantial piece of legislation that amends more than 20 acts, ranging from the Crimes Act to the Paid Parental Leave Act and given the breadth of the legislation it warrants some serious public consultation and some serious scrutiny.


Thanks very much.