National Security Legislation

The security of our community and our nation is of paramount concern for all parliamentarians, regardless of political affiliation.  It is with this responsibility in mind that Labor has been working constructively with the Government to improve our national security legislation, and to ensure that our security agencies and police have the powers they need to meet the changing national security threats that we face as a nation.

However, Labor has also been working to ensure that the powers we confer on our security agencies and police to fight terrorism and to meet other national security threats are consistent with the long-standing values and hard-won liberties that help to define Australia as a democratic nation that upholds the freedoms and the privacy of its citizens. 

The first national security Bill introduced by the Abbott Government was the National Security Legislation Amendment (No 1) Bill 2014.  This Bill was based on work commenced by the previous Labor Government, and was largely comprised of updates and adjustments to national security legislation that had already been subject to an extensive and open process of parliamentary and public scrutiny under Labor.  However, Labor had a number of concerns about certain measures and drafting issues in the Abbott Government’s Bill, and so we insisted on a full review of that Bill by the bipartisan Parliamentary Joint Committee on Intelligence and Security (‘the Intelligence Committee’). After taking evidence from security agencies, legal experts and members of the public, the Intelligence Committee recommended a number of substantial improvements to the Bill, particularly with respect to improved oversight on the use of ASIO powers.  Labor agreed to support the Bill, subject to the Government implementing all of these improvements, and the amended Bill was passed by the Parliament on 1 October.

The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (‘Foreign Fighters Bill’) was the second national security Bill brought forward by the Government in this Parliament.  Introduced on 24 September, a number of measures in this Bill were based on recommendations of previous reports to the Parliament, including the reports of the Independent National Security Legislation Monitor, Mr Bret Walker SC, who was appointed by the previous Labor Government.  However, a number of other measures in the Foreign Fighters Bill were formulated by the Abbott Government without public consultation, including the following more controversial measures:

 

  • An extension of the powers to issue control orders, preventative detention orders and ASIO questioning and detention warrants by ten years, without any provision for review;

  • An expansion of the power of the Government to collect biometric information on Australian citizens at airports; and

  • A new serious criminal offence for entering or remaining in a ‘declared area’;

 

As with the first Bill, Labor made clear from the outset that we believe national security is a matter that should be handled in a bipartisan manner. In this respect, Labor has never agreed with Mr Abbott’s view while Opposition Leader that it is the job of the Opposition to oppose whatever the Government is doing.  As the Leader of the Opposition, Bill Shorten has made it clear that Labor believes that our security agencies and national institutions should have the powers and resources they need to keep Australians safe from the threat of terrorism, and that Labor will continue to work constructively with the Government to ensure those powers and resources are available.

However, approaching our task from the position of constructive bipartisanship does not mean that Labor will give the Government a blank cheque on national security legislation. Labor accepts the assessment of the security threat facing Australia provided by our national security agencies, and Labor will support necessary and effective measures to address that threat. However, constructive bipartisanship does not mean that Labor will support every measure the Government proposes. Nor does it mean that Labor will not work to address problems in the legislation proposed by the Government.

 Applying this approach to the Foreign Fighters Bill, Labor engaged with the Government in a constructive manner to support the new measures we agreed with, and we argued for improvements where we thought improvement was required.  In particular, Labor fought hard to ensure that the new powers conferred by the Foreign Fighters Bill would operate effectively to assist our agencies in addressing security threats, while at the same time insisting on necessary safeguards to maintain the democratic freedoms and principles of justice that characterise our society, and our way of life in Australia.

Once again Labor insisted that the Foreign Fighters Bill be referred to the Intelligence Committee for review, so that members of the public, security agencies, civil society groups and legal experts could also examine and provide feedback on the new laws being proposed.  Through the Intelligence Committee process Labor Members and Senators closely scrutinised the Bill and tested the case for each new measure, and in cooperation with the Government members of the Committee recommended 36 substantive improvements to the Bill.  Labor insisted that the Government implement all of those recommendations as a condition of our support for the Bill.

If you are interested in detail of the findings and recommendations made by the Intelligence Committee, they can be found at this web address:  http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Counter-Terrorism_Legislation_Amendment_Foreign_Fighters_Bill_2014/Report1

Labor achieved a number of significant changes to the Bill through the Intelligence Committee process.  First, Labor obtained a very significant reduction in the sunset period that the Abbott Government had sought for measures including control orders, preventative detention orders and ASIO questioning and detention warrants. Labor was concerned that the Abbott Government had provided for the extension by 10 years of the sunset clauses for these extraordinary powers. Senator Brandis has since confirmed that he had wanted those powers to be made permanent. 

In contrast, it is Labor’s strong view that these powers, which were first introduced in response to the September 11 attacks and the Bali and London bombings, should not be accepted as the new status quo for our nation. Following robust debate, the Intelligence Committee recommended that these provisions be subject to mandatory reviews in the next term of Parliament, and sunset two years after the next federal election unless the Australian Parliament decides it is appropriate to further extend them in light of the findings of the mandated independent review.

By insisting on dramatically shortened sunset periods and on statutory reviews of these powers Labor has ensured that no matter the attitude of the Australian Government in the next parliamentary term, there will be a sober and considered review of these powers ahead of their scheduled sunset.

A second change to the Foreign Fighters Bill was in relation to the collection of biometric data from Australians travelling overseas. As originally drafted, the Foreign Fighters Bill allowed the Government to expand the range of biometric data collected from Australian travellers. This would have allowed the Government to order the collection of biometrics such as fingerprints or iris scans without seeking parliamentary approval for this intrusive data collection. Labor voiced its objection to this during the Intelligence Committee process, arguing that it was not acceptable that such an expansion of power, with serious consequences for the privacy of Australian citizens, could be imposed by the Government without legislation in the Parliament. Indeed, it is worrying that this aspect of the Bill only became apparent during Committee scrutiny, and it is a vindication of that scrutiny process that it did come to light before the Bill was passed.

Once again the Intelligence Committee agreed with Labor, and recommended the removal of the Government’s power to prescribe further biometric collection by regulation.  The Intelligence Committee also recommended that the Privacy Commissioner oversee both the biometric database that is provided for in the Bill, and any future legislative proposal to expand it to other forms of data.

A third measure in the Bill in relation to which Labor raised significant concerns was the new criminal offence created for entering or remaining in a declared area. Labor made it clear from the outset that we were not convinced that it was necessary to reverse the evidential burden of proof, which is a defining feature of this new criminal offence. It is a very significant step to place the onus on a defendant accused of a crime to disprove the key element of a very serious criminal offence.  Although the Government continued to argue that this reversal of the onus of proof was necessary, and at other times denied that it reversed the onus of proof at all, there is no doubt that this provision effectively abrogates the accused’s right to silence in the face of a very serious criminal charge. 

Although Labor ultimately accepted this provision, Labor argued forcefully throughout the Intelligence Committee’s deliberations and the subsequent parliamentary debate that the Government did not have capacity to foresee all possible legitimate reasons why a person might travel to a ‘declared area’, and that it should be left to the courts to decide whether a person accused of this offence had a legitimate reason that could justify their presence in a declared area.  The Government opposed at all times this sensible and practical improvement to the offence, and voted against an amendment moved by Labor to ensure that the law would operate in a more just way.

Although Labor’s proposed amendment was defeated by the Government’s numbers, Labor worked hard through the Intelligence Committee to improve this offence in other ways.  In its Report the Committee recommended removing the ability of the Foreign Minister to declare an entire country a ‘declared area’, resolving a prospect that had caused significant community concern.  The Committee also recommended that declarations by the Foreign Minister be disallowable, and that review of each declaration by the Committee must be disallowable by the Parliament within the disallowance period.

Crucially, and reflecting Labor’s concern that this is an extraordinary and unprecedented offence, Labor insisted that the declared areas offence be sunsetted two years after the next Federal election. Again, this is a significant achievement and reflects Labor’s conviction that extraordinary measures like this criminal offence must endure no longer than the immediate threat at which they are aimed.

Labor understands that new laws may be required to address the changing national security threats that we face as a nation.  But Labor also understands that bad laws can also become part of the problem.  That is why Labor worked hard to improve both the the National Security Legislation Amendment (No 1) Bill and the Foreign Fighters Bill, insisting through both the work of the Intelligence Committee and subsequent negotiations with the Government that a number of important improvements be made to these Bills.  In particular, Labor worked to ensure that the new laws will operate as intended to protect our nation, and that the new powers conferred by this legislation are also subject to limits and accountability measures appropriate to the free and democratic society that Australians are justly proud of having built.