Bills: Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019 - Second Reading

25 July 2019

Senator Patrick By any standards the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 is an extraordinary piece of legislation. The government's proposed law is designed to establish a temporary exclusion order, or TEO, scheme to delay Australians of counterterrorism interest from re-entering Australia until what it regards as appropriate protections are in place. In large part, the bill has been developed as a measure to prevent or otherwise control the return to Australia of Australian former Islamic State fighters and supporters from Syria and elsewhere in the Middle East. This is a serious security issue and requires a serious response. But that response must be proportionate, constitutionally sound and incorporate appropriate safeguards against the arbitrary executive power consistent with our democratic society.

There are two core components to the TEO scheme as set out in the bill. First, an Australian citizen who is overseas may be subject to a TEO prohibiting them from returning to Australia for up to two years at a time. The TEO can be made when the minister, the Minister for Home Affairs, suspects on reasonable grounds that the order would substantially assist in preventing terrorism related activities or if ASIO assesses the person to be a risk to security for reasons related to politically motivated violence. Entering Australia if a TEO is in force would be a criminal offence, punishable by imprisonment for two years.

The second component of the scheme, a return permit, provides that, while a TEO is in force, a person will only be able to return to Australia where a return permit is issued by the minister. So the process is: a TEO is issued, a person subject to the TEO can seek a return order, and the minister will then provide one. Under a return permit, the minister can impose conditions to control the manner in which a person subject to the TEO may return to Australia. The return permit may specify when and how the person is to return to Australia. The bill also provides that a return permit may specify conditions with which the person must comply once they return to Australia. Failure to comply with a condition will constitute a criminal offence punishable by two years imprisonment.

So there's no doubt that the bill, as now before the Senate, is a very forceful security measure—an Australian citizen may be excluded from his or her own country. Under conditions set by a return permit, a person who has not been charged with any criminal offence may be subject to conditions that amount to house arrest. Like a number of other pieces of counterterrorism legislation, the bill provides the Minister for Home Affairs powers in relation to Australian citizens that would only ever be contemplated in time of war.

Centre Alliance is prepared to support the intent of the bill as a necessary security measure, but only with considerable reservation, and it is essential that the legislation, as it is before the parliament this week, be subjected to further and more rigorous scrutiny. The outcome must be absolutely sound, not only from a national security perspective but also in the proportionality of its effects. It must not give the minister arbitrary power and it must have robust constitutional and legal validity.

The bill was introduced into the 45th Parliament and, as senators are aware, the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, conducted an extensive review and produced a detailed report that recommended substantive changes to the legislation. The government has now reintroduced the bill with changes that implement some of the PJCIS recommendations. The government has not fully implemented all of the recommendations of the committee's bipartisan report. In some cases, where the government has indicated in-principle support in the PJCIS, its changes fall well short. In this regard, it must be clearly understood that the bill now before the parliament is qualitatively different from both the original TEO legislation considered by the PJCIS last year and from the bipartisan recommendations made by that committee.

Although, from the viewpoint of the crossbench, bipartisanship between the government and the opposition can be a double-edged sword, it is important that both the coalition and Labor work cooperatively on national security measures. This week, through the statements made by the Prime Minister and the Minister for Home Affairs, and through the government's rejection in the House of Representatives of the amendments moved by Labor to bring the bill in line with the PJCIS's recommendations, there has been a significant fraying of that bipartisan approach. This is an unfortunate development that augurs ill for consideration of national security issues in this parliament.

Certainly no-one should be rushing to pass flawed legislation, especially when the bill deals with national security and the fundamental rights of Australians. Of course, this morning during the motion to suspend I have talked of Centre Alliance's concerns in respect of the constitutionality of the bill. The PJCIS strongly recommended that the government obtain legal advice from the Solicitor-General or an equivalent legal authority on the constitutional validity of the final form of this bill. That recommendation was consistent with the committee's approach to other constitutionally uncertain counterterrorist measures. The government has accepted that recommendation but has not made any legal advice public or available to members of parliament.

I heard Senator Birmingham suggest that the release of this advice would assist terrorists. Look, if the advice is solid, in fact, it would deter terrorists from seeking to litigate. And, indeed, if this legislation is flawed or if the advice is in some way flawed, don't think for a moment that people can't just engage a very learned QC or SC, and they'll come up with the holes. So it's a bit disingenuous for Senator Birmingham to suggest that releasing this advice would be of some advantage to a terrorist. If there are shortfalls or constitutional uncertainties, let them be laid before the table and let us deal with those concerns. Let's not pass into law things that we know will end up in the High Court.

There is no shortage of precedents where the government has publicly released or otherwise made available to non-government parliamentarians advice from the Solicitor-General concerning the constitutional standing of proposed laws. The government should make its legal advice available to the parliament and to the Senate and it should do so today. I note that Senator Hanson indicated that she's been briefed on that legal advice. I point out to the government that that means privilege has been waived. You can no longer claim privilege over a document whereby you have surrendered confidentiality.

While the ultimate determination of constitutional validity would rest with the High Court, the parliament is duty-bound to satisfy itself that proposed laws are constitutional, and the government is duty-bound to share that advice concerning what are, I repeat, by any standards extraordinary legislative measures. Among the other significant departures from the PJCIS's recommendations, the government has not accepted the PJCIS's recommendation that the minister must not make a temporary exclusion order in respect of a person unless the minister reasonably suspects that the person is or has been involved in terrorism-related activities outside Australia and making the order would substantially assist in preventing the provision, support or facilitation of a terrorist act. That would be, in my view, a more appropriate threshold for the exercise of the power contained in this bill. Yet, as the bill presently stands, the mere existence of adverse ASIO security advice could allow the Minister for Home Affairs to rubber-stamp a TEO.

Secret intelligence, it should be noted, is very far from being infallible. ASIO is by and large a professional organisation, but mistakes do take place. Reliance on flawed, incorrect or fabricated information can have serious consequences and can give rise to serious injustice—the scandal around the detention of Dr Mohamed Haneef being but one example. The government has also not accepted the PJCIS's recommendation that the issuing authority for a TEO should be a judge, retired judge or senior AAT member. Instead, the bill proposes that the minister make the decision to issue the TEO, and then his decision is subject to a very narrowly defined review process by a judge, retired judge or senior AAT member. In this regard, it is important to note the observations of the Law Council yesterday. Mr Moses made this point:

A Commonwealth law may be unconstitutional if it authorises the Executive to determine and impose punishment for criminal conduct. A ministerial decision to grant a TEO is arguably punitive, and arguably invalid. In granting a TEO, a minister is effectively determining and imposing punishment for a citizen’s alleged conduct – or prospective offence - in the form of an order preventing re-entry. If such an order is to be made to exclude an Australian citizen from entering Australia, it is the Law Council’s view it should be made by a court, not a Minister.

The government's review authority is also deeply problematic in many other ways. It will not necessarily be able to examine the full scope of ASIO material available to the minister and, indeed, may effectively be denied access to the material. This is a funny thing about our system: the person that would be asked to review the minister's decision will have to have a security clearance. The minister can decide not to pass information on if it's not in the public interest to do so, yet the minister doesn't have a security clearance. It's a crazy situation that we have in our current regime, and I have a bill before the parliament trying to rectify that.

The review authority may amount to little more than a rubber stamp process for the minister's decision, and it raises its own constitutional issues, in addition to those raised by the TEO scheme as a whole. If we look at section 30 of the bill—I read it out before—it says that it's in the event that this law is not valid. The government know that there's a problem here; they put a provision in the bill in the event that it's unconstitutional. Let's stop and make provisions that prevent that unconstitutionality. In effect, the bill, as now presented to the parliament, could result in the Minister for Home Affair rubberstamping an exclusion order and another reviewer or authority just rubberstamping his decisions.

At every level, this legislation requires much further scrutiny. The bill, as now constructed by the government, should be referred back to the PJCIS for further detailed examination. This approach is strongly supported by the Law Council, which said yesterday:

But rushed laws at risk of Constitutional challenge pose an unnecessary risk to national security.

…   …   …

When it comes to matters of national security, Parliament must take the time to get laws right. That is why we are calling on the Senate to send it back to the PJCIS for further scrutiny.

We also need to look again at the question of the parliament's oversight of ASIO and other parts of the Australian intelligence community. Time and time again, the government has asked the parliament to give them new national security powers—many of them exercised in secret. Home affairs minister, Peter Dutton, and his security portfolio agency now exercise an array of powers greater than any of those exercised by any government since the national emergency of the Second World War.

However, parliament must not merely hand over power to the executive. Parliament must play its role in the scrutiny of our intelligence agencies, and we must end the self-imposed restriction on parliament's scrutiny of the operational performance of our intelligence and national security agencies. At present the PJCIS's role is limited to considering matters of finance and administration, and is explicitly prohibited from reviewing operational performance. This limitation is in contrast to parliamentary oversight in the other Five Eyes countries—the United States, the United Kingdom, New Zealand and Canada. Centre Alliance has sought to remedy this deficiency through its Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Bill 2018, and I have circulated amendments to the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019 that, again, seek to expand the role of the PJCIS in a way closely modelled on the Canadian oversight arrangements.

In addition, Centre Alliance will also move a second reading amendment that provides the bill and any circulated amendments to this bill be referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 11 September 2019. Further, Centre Alliance's motion will propose that further consideration of the bill be made an order of the day for the first sitting day after the PJCIS has reported. The government's—

The ACTING DEPUTY PRESIDENT ( Senator Farrell ): Senator Patrick, can I confirm that you are moving that motion now?

Senator Patrick: No, I'm just foreshadowing a second reading amendment. The government has demanded that the Senate pass this legislation this week. The opposition has spoken out loudly about the flaws of the bill, the government's refusal to adopt all of the PJCIS's recommendations and the importance of bipartisanship in national security policy. The government has refused to engage and has said, 'Take it or leave it.' As I've said, no-one should be rushing to pass this legislation, especially when the bill deals with national security and the fundamental rights of Australian citizens. The PJCIS should do its job and review the legislation again, and the Senate should do its job properly as well.

Labor should do its job and not just talk and pontificate but oppose measures that they have said are flawed, likely unconstitutional and, consequently, unlikely to properly support national security. I seem to recall, when we were talking about the media raids, Mr Albanese saying to the media that no longer would the Labor Party just tick and flick legislation. They know there are problems with this bill, yet they're going to tick and flick it. They know there are problems; I listened to Senator Keneally's speech. We'll be supporting their amendments because they seek to rectify the bill. And, if those amendments are successful, we will support the bill.

I get what we're trying to do here. We're trying to stop those bad eggs getting to Australia and causing security issues. What Centre Alliance is concerned about is the innocent person who might just happened to have been in Jordan doing some work with a mission and happened to be photographed in a bar—probably not a bar, there, but in a place or at an event—where there might be people who are bad eggs. That photograph is then presented to the minister. That person may be completely innocent but the way it works at the moment is that the minister can make a determination and that determination gets reviewed, but not on the merits. There's no challenge to whether or not the photograph is correct. The review authority simply says, 'Did the minister make his decision informed by an ASIO brief?' That means that that very innocent citizen is now in a position where, in order to challenge the TEO, in order to challenge the re-entry permit conditions, they have to take the matter to the Federal Court or the High Court, at great expense.

In every other scenario where we have the executive making a decision, we give them an avenue like the AAT so they can present their position. There's not even a chance for the person subject to the TEO to put up a case and say, 'That photograph was taken, but I don't even know these people.' That's the problem that Centre Alliance has. It's not about the way in which you're trying to stop bad eggs getting to Australia and making sure we control them if they're Australian citizens; it's about protecting the innocent people. As such, we won't be supporting the bill. We will be abstaining unless the amendments Labor have moved are passed.

The ACTING DEPUTY PRESIDENT: Senator Patrick, if you wish to move a second reading amendment, you need to move that before the minister rises.

Senator Patrick: I move:

At the end of the motion, add: ", and:

(a) the bills and any circulated amendments to the bills be referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 11 September 2019; and

(b) further consideration of the bills be made an order of the day for the first sitting day after the committee has reported."