Bills: Ministers of State (Checks for Security Purposes) Bill 2019 Second Reading

29 July 2019

Senator Patrick: 

I think most people would be quite surprised to learn that ministers of state do not require a security clearance, that ministers of state get access to the most sensitive of government information, including having access to cabinet information, yet there is no security check. So I'm pleased to have this opportunity to add to the observations I made in my second reading speech when I first introduced the Ministers of State (Checks for Security Purposes) Bill 2019.

On 4 July, the Senate referred the bill to the Finance and Public Administration Legislation Committee for inquiry and report, due by 11 November. That committee will, one hopes, conduct a thorough and long overdue examination of the important issue this bill seeks to address, which is security at the highest levels of government.

The exemption of ministers from any mandatory security-checking process is a dangerous anomaly and a significant gap in Australia's protective security framework. The bill establishes a framework for ministers to undergo a security-checking process by ASIO that is equivalent to and as rigorous as that imposed on all other persons with access to our nation's most sensitive and highly classified secrets. The purpose would be to provide security advice to the Prime Minister.

In the event that the security background check reveals an area of security concern, the Prime Minister would be free to determine what steps might be required to resolve the matter. The PM is, and would remain, the absolute decision-maker with regard to who is recommended to the Governor-General to serve in a ministerial office and have access to our nation's innermost decision-making and most sensitive secrets. What this bill will do is ensure that the PM is fully advised of any security issues that may arise from a comprehensive background check—something that is not mandatory now. To be very clear, this security check could not be used for any other purpose other than to inform the Prime Minister, and only the Prime Minister, of the day—and it's so framed in the bill. If the Prime Minister changes, the new Prime Minister cannot have access to previous assessments, only to assessments on ministers who are members of their cabinet.

The necessity for improving security across the board was again highlighted last week by the outgoing Director-General of Security, Duncan Lewis, who, in an interview with The Australian newspaper, warned in blunt terms that Australia faces an 'unprecedented' wave of espionage and foreign interference. Mr Lewis warned that 'the espionage threat showed no sign of abating/, while 'unwelcome influence within Australia’s political system is now widespread'. He said:

It is an unprecedented level of activity … it’s not visible to most people.

The government and the parliament have already responded to these national security challenges, notably with the introduction of new laws to deal with foreign espionage and covert political interference and with the establishment of a foreign influence transparency scheme, which is administered by the Attorney-General. This bill supports the objective of the recent legislation by providing the Australian public with greater assurance that security will be maintained at the highest levels of the Australian government.

Regrettably, it cannot be assumed that persons appointed to high political office will always be free of characteristics, activities, associations, connections or obligations that may compromise or risk the compromise of national security within the executive government. Human frailty being what it is, elected parliamentarians and ministers are not immune to weaknesses and temptations that in rare but significant cases may lead to involvement in espionage and, indeed, treason. At the end of the Cold War, the publication of secret Soviet intelligence files showed that the KGB had enjoyed success in recruiting as agents not just Western government officials but also parliamentarians and ministers in a number of Western countries. In the United Kingdom, for example, at least two former British Labour MPs were identified as agents recruited by the KGB. Two other Labour MPs, including one minister in the Harold Wilson government, have also been confirmed as having been paid agents of the communist Czechoslovakian intelligence service, the StB. Here in Australia, the publication of KGB archives, as well as the release of ASIO files by the National Archives, revealed that a former federal member for Hunter, the late Bert James, was a covert source for the Soviet embassy. Another Labor MP, the late senator John Wheeldon, was involved in a sex espionage scandal involving the chief KGB officer in Canberra and a French embassy official. Wheeldon was later a minister in the Whitlam government.

The Cold War is long over, but, if anything, the counterespionage and challenges that Australia now faces a much greater than ever before. China, the rising regional power, already enjoys considerable access to and influence within the Australian political system, from local governments to state parliaments and here, the national parliament. Security issues involving elected MPs and ministers have always been politically sensitive, and there has long been a reluctance to require ministers who are elected representatives to undergo any security checking processes. I might point out that there are some suggested constitutional concerns because of the separation of powers, but we must remember that members of parliament and senators, who are in a separate pillar in respect of our government, are occasionally ministers, and it is when they are ministers that they fill a role in the executive, so there is no constitutional impediment to this bill proceeding. We don't have security clearances. In the current security environment, this can no longer be acceptable.

Recent experience concerning the noncompliance of MPs and senators with constitutional requirements for election to parliament shows that the party preselection processes and electoral and media scrutiny, as well as selection to serve on the ministry cannot be relied on to identify matters that would be an issue in a security background checking process. Instances of corruption or other embarrassing incidents involving Australian political figures show that ministers may succumb to temptations that may make them vulnerable to compromise. Over the past decades, specific security issues have arisen in relation to ministers and shadow ministers. One case which I have previously discussed in the Senate, in an adjournment speech, is the relationship between member for Hunter and former defence minister Joel Fitzgibbon and Chinese Australian property developer Helen Liu, a person who is directly linked to senior Chinese military intelligence operatives. Senators would also be familiar with matters that lead to the resignation of former senator Sam Dastyari. He was a very buoyant chap, and I'm sure he would have gone on to become a Labor minister. I make no judgement about the member for Hunter, or, indeed, former Senator Dastyari. Suffice to say, these matters are precisely the sorts of issues that would be appropriately addressed by a security checking regime.

As I pointed out in my second reading speech, Canada has taken up the practice of security checking its federal ministers. That process has been adopted by successive Canadian governments and also extends to security checking MPs who serve on Canada's National Security and Intelligence Committee of Parliamentarians, the equivalent of our Parliamentary Joint Committee on Intelligence and Security. Once again, we now see in legislation, slowly creeping in as we introduce more powers, the ability of the PJCIS to examine some elements of what it is that our security services do. Yet, none of the members who are on that committee are required to have a security check of any sort. So, an additional issue which the Finance and Public Administration Legislation Committee might wish to consider is the question of security checks for members of the PJCIS.

This bill is designed to be fully consistent with the Prime Minister's responsibilities in selecting and leading the cabinet and ministry. It would be naive to think that Australian ministers of state will always be immune from failings that may make them vulnerable to compromise or tempt them into behaviour that may harm national security. They should be subject to security checking equivalent to what is done by or that applies to many thousands of public servants and Defence Force personnel who have access to highly classified information.

I'm not suggesting, and the bill does not suggest, that the security services have any vetting role over a minister—to be very, very clear about that. The bill requires that a report be compiled for the Prime Minister and only for the Prime Minister, and what the Prime Minister does to deal with any concerns that may be raised in the report it is at the discretion of the Prime Minister. When he has finished with that report, it returns to the Director-General of Security, where it will be locked away, and the bill explicitly states that report can be used for no other purpose.

I might just reflect on last week when we were discussing the TEO bill, the temporary exclusion order bill. A process has been enacted in law now—unfortunately, in my view, on account of the lack of protections for flawed evidence. In that particular bill, the home affairs minister makes a determination based upon advice from ASIO—presumably classified advice. He or she then passes their decision to a review authority, who is security cleared, to conduct a quick review. But the bill allows for the minister not to pass on the ASIO assessment if it's not in the public interest to do so. The irony—the dichotomy—of that particular arrangement is that the review authority is required to be security cleared, but the minister who makes the decision, who sees the most sensitive information, is not required to be cleared. That creates an anomaly. I'm not suggesting anything in relation to our current home affairs minister; I'm just using that as an example that most people would say is odd.

At the very start I suggested that most Australians would be unaware and would think it very odd that our ministers who access briefings from all of our intelligence services, see sensitive information from foreign governments, get access to sensitive information from companies, and generate their own sensitive information are not security cleared. This bill will plug a major gap in Australia's protective security framework, and I commend it to the Senate.

Senator Paterson: I rise also to speak on the Ministers of State (Checks for Security Purposes) Bill 2019. As the Chair of the Senate Finance and Public Administration Legislation Committee, I look forward to our forthcoming inquiries into this bill and no doubt considering the evidence and submissions we receive. Although Senator Patrick's well-known interest and concern for national security is laudable, the government does not support this bill. I will briefly outline why this morning.

The government already has extensive vetting processes in place for ministerial staff and public servants which Senator Patrick proposes be effectively extended to also include ministers. Senator Patrick's bill would require the Prime Minister, within 14 days of the appointment of a minister, to direct the Director-General of ASIO to investigate and provide a report on matters relating to security, including the personal background and circumstances of a minister. The director-general must then provide the report to the Prime Minister within 120 days, and it must be returned to ASIO upon the Prime Minister ceasing to hold that office.

The existing process for ministerial staff and public servants is comprehensive and appropriate. Depending on the level of clearance required, it can involve identity and citizenship verification, a police check, statutory declarations, referee checks, a digital footprint check, a financial history check, an ASIO assessment, a security interview and a psychological assessment. However, there are very good reasons why ministers and their staff and public servants should be treated differently when it comes to security vetting. In the Westminster system, the only qualifications for ministerial office are, first, election by the people as a member of parliament and, second, an invitation from the Prime Minister to join their ministry. Along with every other member of parliament, ministers are required to publicly declare any relevant interest that they may have which could influence them in the exercise of their duties. Ministers are also accountable to the parliament and have to front up on a regular basis to question time, estimates and other forums to be questioned on their conduct and performance in their role. Introducing a third qualification, whereby ministers would be required, in effect, to pass a bureaucratic process in order to hold office, undermines the Westminster system.

It is entirely appropriate for ministerial staff and public servants to undergo security vetting because they are entering into an employment relationship. But ministers are not employees; they are public officials. With that status comes the public scrutiny and accountability that cannot and should not be equally applied to staff or public servants. Public servants and ministerial staff do not stand for election and, therefore, do not expose themselves to the public and media scrutiny that comes with that. The burden for ensuring that ministers are qualified and appropriate for their role rightly falls squarely with the Prime Minister. Any Prime Minister knows that their appointments will be scrutinised through the democratic parliamentary and political processes that we have in place.

Of course, party leaders must exercise good judgement in choosing their frontbench teams, and I acknowledge, as Senator Patrick has pointed out, that has not always been the case. Senator Patrick raises the case of Senator Dastyari, and I was also planning to raise it in my remarks because I think it is a salutary lesson, although for different reasons than Senator Patrick does. I think it is, in the last parliament at least, the most infamous example of an inclusion of an inappropriate person in, in this case, an opposition shadow ministry. Yet, even in this instance, the best protection that our political system has against an unsuitable appointment remains public scrutiny. After adverse media coverage and parliamentary scrutiny, Senator Dastyari first stepped down from the Labor front bench in September 2016, then again stepped down from the Labor front bench in November 2017 following further revelations, and ultimately resigned from the Senate entirely in December 2017. This is a good example of how the public and parliamentary scrutiny processes that we already have in place are the best and most effective mechanism for ensuring that an unsuitable person is not appointed, in this instance, to a shadow ministry; it would equally apply had the Labor Party been successful at the last election and won government and had Senator Dastyari aspired to serve in the ministry in government.

A confidential security vetting process as proposed by Senator Patrick is no substitute for this robust process of public and parliamentary scrutiny and the Westminster principles of ministerial accountability. It is for these reasons that the government will not be supporting the bill.

Senator Farrell: I rise to speak on the Ministers of State (Checks for Security Purposes) Bill 2019 on behalf of the opposition. I notice Senator Patrick's rather cowardly attack on the member for Hunter once again in this place. Can I suggest, Senator, that, if you are going to make these allegations, at least do them outside of parliament where people can at least have the opportunity to defend themselves from these allegations.

Senator Patrick interjecting

Senator Farrell: I know, Senator Patrick, that you're trying to push yourself up on the Centre Alliance ticket in South Australia for the next election. I've seen the poor performance of your party at the last election, so I understand why you're doing it, Senator Patrick, but, again, can I offer you a little bit of advice? Try to focus on issues that affect South Australians, like the River Murray and like defence contracts. Stick to something that might try to improve the status of people in South Australia.

This bill seeks to impose security checks and processes on members of the executive and to allow the Prime Minister to receive this information confidentially in the form of reports from the Director-General of Security. As highlighted in the bill's explanatory memorandum, ministers occupy a position of both authority and trust in our democratic framework. Cabinet ministers are privy to the highest levels of sensitive material, including involving matters of national security and classified information. In the view of the opposition, the bill proposed by Senator Patrick does not achieve any of the substantial improvements to the ministerial or cabinet processes.

The bill highlights the contrast between public servants and ministerial staff acquiring security clearances and procedures while elected members and appointed ministers are exempt from this process. This ignores the obvious conventions in our democratic system that all elected members are placed under significant public scrutiny while seeking public office and in any subsequent election or re-election.

Senator Patrick interjecting

Senator Farrell: I sat quietly and listened to Senator Patrick, Deputy President; could you please ask him to provide the same courtesy?

The DEPUTY PRESIDENT: Thank you, Senator Farrell. Yes, I remind senators not to interject when other senators are speaking. Thank you.

Senator Farrell: Thank you, Deputy President. Our system deliberately differs from, for example, the United States, where members of the executive branch are not drawn from the legislature and, therefore, are spared the scrutiny of the electoral process. As the bill references, Australia's constitutional framework ensures a minister shall not hold office for more than three months unless he or she becomes a senator or member of the House of Representatives and, therefore, subject to the scrutiny of the electoral process. Additionally, there exists a clear conflict with the role and the supremacy of the elected legislature and the appointed executive by the government of the day.

Although the bill does not seek to impose any real or practical obligation on members on the executive as a result of the checks for security purposes, there still exists a conflict on what basis an independent ministerial appointment should be made by the Prime Minister of the day. For these reasons, the opposition will not be supporting the bill proposed by Senator Patrick. Labor remains committed to further consideration of our security processes and democratic integrity measures. However, these changes must be considered carefully and take into consideration the democratic principles on which our system of government is founded.

Senator Dean Smith: (Chief Government Whip in the Senate) (10:24): I rise to add some comments to Senator Patrick's bill, to reiterate some of the very wise remarks that Senator Paterson made in his contribution and to put the government's position clearly with regard to this.

I think we'd all agree that Senator Patrick's interest in national security matters is laudable. In the previous parliament, he and I sat together on the Joint Committee of Public Accounts and Audit, which, interestingly, in the course of the last parliament, conducted a number of inquiries into the Auditor-General's work around security matters and the security framework that operates in our country. While I don't doubt or dismiss Senator Patrick's forensic approach to issues like this, I think on this matter he's wrong and the bill doesn't deserve to be supported.

I think it is worth reiterating some of the comments Senator Paterson made in his contribution. The first of those, of course, was that the government already does have extensive vetting processes in place for ministerial staff and for public servants which Senator Patrick proposes to, effectively, be extended to include ministers. Senator Patrick's bill would require the Prime Minister, within 14 days of the appointment of a minister, to direct the director-general of ASIO to investigate and provide a report on 'matters relating to security'—which is a direct quote from his proposed legislation—including the personal background and circumstances of ministers. The director-general must then provide the report to the Prime Minister within 120 days, which must be returned to ASIO upon the Prime Minister ceasing to hold that office. The existing process for ministerial staff and public servants is comprehensive and appropriate, we on the government side would argue. Depending on the level of clearance required, it can involve identity and citizenship verification, a police check, statutory declarations, referee checks, a digital footprint check, financial history check, an ASIO assessment, a security interview and a psychological assessment, so there is a very extensive list of tests that need to be applied.

However, there are very good reasons why ministers and their staff and public servants should be treated differently when it comes to security vetting. In the Westminster system, the only qualification for ministerial office is, first, election by the people to be a member of parliament and, second, an invitation by the Prime Minister to join the ministry. Along with every other member of parliament, ministers are required to publicly declare any relevant interests they may have which could influence them in the exercise of their duties. Ministers are accountable to this parliament and have to front up on a regular basis in question time, estimates and other forums to be questioned on their conduct and performance in the role. So there is already in our country a high level of transparency and with that transparency, I would argue, comes a high level of public and private accountability. Introducing a third qualification whereby ministers would be required, in effect, to pass a bureaucratic process in order to hold office undermines the Westminster system of government, and I think that was a point that Senator Farrell was trying to make in his contribution.

It is entirely appropriate, we argue, for ministerial staff and public servants to undergo security vetting because they are entering into an employment relationship. But ministers are not employees; they are public officials. With that status comes public scrutiny and accountability that cannot be equally applied to staff. I am someone, like Senator Paterson, who would argue that that public scrutiny and accountability is at a higher level and is more intense than is applied to staff. Public servants and ministerial staff do not stand for election and expose themselves to public and media scrutiny. And I think it's fair to say that, in our country, that public and media scrutiny is robust, is intense and serves the public interest well.

The burden for ensuring that ministers are qualified and appropriate for their role rightly falls to the Prime Minister. Any prime minister knows their appointments will be scrutinised through the democratic parliamentary and political processes we have in place. Of course, party leaders also must exercise good judgement in choosing their front-bench teams, and that has not always been the case. And, while I don't want to reflect too much on some of the high personalities and high stakes, this chamber has seen some people become very real and very public casualties as a result of what were private matters that were subsequently properly exposed through the media in appropriate public scrutiny. Of course, Senator Dastyari's name is one that comes to mind most immediately when we think about that set of circumstances. Yet, even in that instance, the best protection our political system has against unsuitable appointments remains public scrutiny.

To your credit, Senator Patrick, I don't mind saying that you are, have been and will continue to be a very strong advocate for increased levels of public scrutiny and increased levels of transparency. But, like I said, on this particular point I think that your concern is unwarranted and that this legislative proposal is unnecessary. A confidential security vetting process as proposed by Senator Patrick is no substitution for a robust process of public and parliamentary scrutiny and the Westminster principles of ministerial accountability.

I think this is a very critical point: some people have the false belief that, by putting something into law or regulation, you somehow improve the transparency processes in our country. I caution that. Often I hear people say, 'Oh, because it's in the law or because it's in regulation, we don't have to have the same level of intensity around our other scrutiny processes,' like the media process, like the public process or, indeed, like parliamentary scrutiny and adhering to the principles of the Westminster system of government. So I think sometimes we can find false comfort, false sanctuary in more regulations and more legislation because people then take their eye off the existing mechanisms for high levels of public scrutiny, like our Senate processes and our parliamentary processes more generally. For these reasons the government's not inclined to support this particular piece of legislation.

Although it is worth reminding the Senate that Senator Patrick's bill is before a committee. That committee process is ongoing, and, through that process, the onus will be on Senator Patrick and those people in the community who support his proposition to bring forward information that might allow people in this Senate to review their position. If the evidence is more conclusive than it currently is—I doubt that will be the outcome of the committee process but it's not my place to predict what the final outcome will be—let's see that and let's put that evidence through the proper lens of public scrutiny as well.

With regard to that, I'll leave my comments there. The bill will, no doubt, come back to the Senate after the committee has concluded its deliberations and then we'll see what the committee process has revealed.

Senator Patrick: I see that both the government and the alternative government don't, under any circumstances, want ministers to be subject to any particular security checking. However, I thank the contributors to this debate on the Ministers of State (Checks for Security Purposes) Bill 2019 because it does enliven me to questions and nooks and crannies that will need to be explored in the context of the committee. I do want to address a couple of the points that were raised in the chamber, and I thank people for making their contribution and raising these issues.

Firstly, I do appreciate that the Westminster system is a good system of government. However, to suggest that security checking ministers breaks that down is to just ignore what is happening in Canada. Canada does check its ministers from a security perspective and, indeed, operates under the Westminster system. So I think we can put any concerns in that regard to one side.

The point made by all contributors that ministers are subject to public scrutiny, media scrutiny and parliamentary scrutiny ignores the fact that, when people are being influenced by foreign officials or conducting activities that are not proper, they tend to do that covertly. They don't come into the chamber, they don't do that in sight of the media and they don't do that in the face of public scrutiny. They actually try to do that in secret. Senators would be aware that's especially problematic as our police forces and our intelligence forces are very aware of their responsibilities and the difficulties in watching what a minister may or may not be doing because it causes a considerable difficulty in respect of parliamentary privilege. We have a situation where these activities will not be done in the daylight. To the extent that they are done in secret, for good reasons, we already tie our security forces hands behind their backs. I reject some of the propositions that have been made but appreciate the early notice of the issues that will no doubt be raised in the committee. Thank you.

Debate adjourned.