Member for Isaacs

Counter-Terrorism Legislation Amendment (No.1) Bill 2014 - Mark Dreyfus QC MP

17 December 2014

This is now the third time that I have spoken to national security legislation in this term of the Parliament. My approach, and Labors approach, has been consistent on each occasion.

This is now the third time that I have spoken to national security legislation in this term of the Parliament. My approach, and Labors approach, has been consistent on each occasion.

As the Leader of the Opposition has said many times now, 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 we will support the government in providing those powers and resources. This is what Labor did in Government, and this is what we have been doing in Opposition.

Our record on this is clear.

Labor supported the Governments first national security Bill, the National Security Legislation Amendment Bill (No 1), which passed the Parliament on 25 September. That Bill arose out of a Parliamentary Joint Committee on Intelligence and Security report commissioned by the former Labor Government. The Bill updated and adjusted, in a general way unconnected with any particular threat, the architecture of our national security organisations so that they will be better able to meet demands on them well into the future.

Labor also supported the Governments second Bill, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, which passed the Parliament on 29 October. As I said when speaking to that legislation, the Foreign Fighters Bill was of a different character to the first Bill. The Foreign Fighters Bill directly addressed the threats to Australian security which have arisen out of present circumstances in Iraq and Syria. Where the first Bill focused on the structure of our national security institutions in the long view, the Foreign Fighters Bill focused on the discrete powers most relevant to addressing the immediate threat arising from Australians travelling to fight with overseas terrorist organisations, and potentially returning to Australia.

In neither of these cases was our support for the Governments objective protecting Australia against genuine security threats in any sense a blank cheque of support for the particular measures the Government proposed to deal with these threats.

In each case we insisted that the Governments legislation be closely scrutinised by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), and through this process, subject to consideration by legal experts, community groups and the wider public. In each case the Committee recommended a number of significant improvements to the legislation, which we insisted the Government implement. In the case of the Foreign Fighters Bill, the concerns Labor members expressed in the Committee process were not addressed by the Government, and Labor moved amendments in the Senate which the Government opposed.

This is constructive bipartisanship. Though we share the commitment of the government to taking the necessary steps to ensure the safety of the community, our own Labor values inform the approach we take to fulfilling this commitment.

We have taken that same approach with the Bill I am speaking to today, the Counter-Terrorism Legislation Amendment (No 1) Bill 2014.

Though this is the third national security Bill the Government has introduced into this Parliament, it is essentially ancillary to the second the Foreign Fighters Bill.

This Bill, introduced into the Parliament the same day the Foreign Fighters Bill was passed 29 October contains one measure recommended by the PJCIS in its report on the Foreign Fighters Bill, but which was not able to be legislated in that Bill due to a need to consult with the States and Territories.

The Bill also contains three new measures:

  • Further changes to the control order scheme, streamlining the process for the AFP to apply to the A-G for consent to seek a control order from an issuing court, and expanding control orders to apply to persons involved in supporting or facilitating terrorist activities;

  • Provision for emergency ministerial authorisation for Australian Secret Intelligence Service (ASIS), Australian Geospatial-Intelligence Organisation (AGO) and Australian Signals Directorate (ASD) activities; and

  • Provision for cooperation between ASIS and the Australian Defence Force (ADF) on military operations.

The three new measures were developed in response to operational needs identified by Australias anti-terror agencies after the Foreign Fighter Bill was introduced into the Parliament. The Government sought to include these three measures in that Bill without first revealing these measures to the Australian people and without full scrutiny by the PJCIS.

As I have said, it is Labors consistent position that all national security legislation should be rigorously examined to make sure not only that it will be effective in protecting our nation but also that it does not unduly infringe on important rights and freedoms. In keeping with that position, Labor insisted to the Government that these three new measures be introduced in a separate Bill and subject to public scrutiny and a full PJCIS inquiry.

Accordingly, this Bill was introduced into the Senate on 29 October and referred to the PJCIS. The PJCIS sought submissions, held brief hearings and tabled its report on 20 November.

In its report, the PJCIS recommended the Bill be passed and made 15 substantive recommendations. Significant recommendations include:

  • Amendment of the Bill to require the AFP to provide the Attorney-General with a summary of facts when seeking consent to apply to the court for an interim control order, including any facts indicating why such an order should not be made;

  • Retention of the requirement for the AFP to explain to the issuing court the reasons justifying each condition in a draft control order. The Bill as introduced would have effectively reduced judicial oversight by only requiring the AFP to justify the control order as a whole;

  • Shortening of periods for notification of the relevant Minister where agencies issue emergency authorisations;

  • That the Government urgently appoint a new Independent National Security Legislation Monitor and task it with reviewing whether recommendations for safeguards on the control order regime recommended by the 2013 COAG Review should be implemented; and

  • A range of additional oversight measures.

Importantly, the recommendations will improve the accountability and transparency of decision-making by national security agencies.

The recommendations will also ensure that control order applications are closely and appropriately scrutinised.

With the Governments agreement to implement all of the Committees recommendations, Labor is willing to support this Bill.

As amended, this Bill makes some sensible changes to our national security laws. It is one that a responsible Opposition and ours is a responsible Opposition should and does support.

As I have said, this is now the third national security Bill proposed by the Government and supported, with amendment, by the Labor Opposition. That is three Bills in around four and a half months. Though each was, as I said, given due scrutiny at Labors insistence, each has been dealt with in an expedited manner.

We should be very clear, though, that the security threat posed to Australia by recent events in Iraq and Syria will not and cannot be solved by legislation.

In its Counter-Terrorism White Paper released in 2010, the former Labor Government set out the four key elements of Australias counter-terror strategy:

1. Analysis: an intelligence-led response to terrorism driven by a properly connected and properly informed national security community.

2. Protection: taking all necessary and practical action to protect Australia and Australians from terrorism at home and abroad.

3. Response: providing an immediate and targeted response to specific terrorist threats and terrorist attacks should they occur.

4. Resilience: building a strong and resilient Australian community to resist the development of any form of violent extremism and terrorism on the home front.

New and stronger laws can support those first three elements.

But legislation alone will not support the fourth. More pages in the statute books will not make ours a more resilient community. It is worth quoting the White Papers explanation of that concept resilience:

Australias counter-terrorism efforts are supported by our open democratic society. There are inherent strengths in our society that make Australia resilient to the divisive worldview of al-Qaida and like-minded groups.

However, we know from experience that the terrorist narrative may resonate with a small number of Australians. It is incumbent upon all Australians to work together to reject ideologies that promote violence, no matter from where they arise or to what purpose they aspire. We must all support and protect the values and freedoms from which all Australians benefit. By reducing disadvantage, addressing real or perceived grievances and encouraging full participation in Australias social and economic life, government policies can help to mitigate any marginalisation and radicalisation that may otherwise occur within the Australian community.

Building this sort of resilience must, in the context of the foreign fighter threat, be an even higher priority now than it was in 2010 when the White Paper was written. This is a threat which we fear will emerge from amongst our own. Already some young men and women in our community have become ensnared in the violence and the chaos occurring in Iraq and Syria. There is clearly a risk that more young men and women will be similarly ensnared. And there is a risk that some of those who participate in terrorist activities overseas will return to Australia with an intent to do harm here.

We must, of course, have the powers necessary to investigate, prosecute and convict those members of our community who become radicalised and who participate in terrorist acts or planning. We should, as this Bill ensures, have the powers necessary to restrain those who would participate in or support terrorist activity, from threatening our society.

Of course. We all agree on this.

But Australia will be far safer still if we dont ever need to apply extraordinary legal powers to our own. We will be safer if we can inoculate our young men and women against radicalism, extremism and violence in the first place. We will be safer if we can prevent disaffection and make sure all members of our community feel part of the open, democratic society we want our country to be.

This task building resilience requires concerted Government action.

In response to the White Paper, in 2010 the Labor Government set up a range of programs under the Countering Violent Extremism initiative.

Those programs included the Building Community Resilience Program, which delivered grants to community groups across Australia to fund a range of programs designed to encourage people to resist or disengage from intolerant and radical ideologies. This Program recognised that local communities are key in fighting radicalisation. Often, it is local communities who first become aware that individuals are at risk of falling into radicalism. And it is local communities who are able, with proper support and resources, to bring those people back into the fold.

The Building Community Resilience Program funded initiatives such as the Bachar Houli Cup, which provides an AFL program for Islamic young people and encourages engagement with mainstream community groups. It funded a range of programs working sometimes through sport as with the Bachar Houli Cup, sometimes through internet based programs, sometimes through mentoring or counselling programs. A diverse range of programs were funded, and that was one of the strengths of Building Community Resilience. Countering violent extremism is sensitive, nuanced work. It is important that this work be innovative and adaptive, working through different programs to see what works best, and to improve programs in response to our experience.

In a horribly short-sighted decision, the Abbott Government cut all funding to the Building Community Resilience Program in its Budget earlier this year. No thought was put into this decision. No alternative way of carrying on the work of countering violent extremism was proposed.

As the present crisis in Iraq and Syria unfolded, I am happy to say that the Government revisited its decision. On 26 August, the Attorney-General announced that the Abbott Government would return to the good Labor Government policy work in countering violent extremism, and would fund $13 million dollars of Building Community Resilience programs.

We welcome the Governments reversal in this area. But I must say that it has now been more than three months since this change of policy was announced, and to date there is little indication that the Government has made much progress on getting the Building Community Resilience programs back into operation. We dont yet have any detail on exactly what the Government will be doing with that $13 million dollars.

The Government should explain to the Parliament and to the Australian people exactly what it is doing in this area. This is, as I say, sensitive work. It is in some senses a new approach to counter-terrorism work, though there are precedents overseas, for example in work done with white supremacists in the United States or with right-wing extremists in Germany. Wresting young men and women in our community away from violent jihadist ideology is a new challenge. It is one that comparable nations such as the United Kingdom are also trying to address through programs of this kind.

It is important work that recognises the nexus between our national security and our social cohesion. The Government should clearly explain what it proposes to do. And just as Labor has engaged constructively with the Government in developing and passing new counter-terrorism laws, Labor will engage constructively to assist the Government in implementing this more subtle side of our nations fight against terrorism.

Of course, building resilience requires more than just programs and funding, though that is certainly important. It requires some of the more intangible products of Government too. If we are to build resilience in our community we must have leadership from our Government and those who serve in it. The words that they use, the values they profess, and the approach they take to dealing with the community these things are just as important as any program. They are in fact probably even more important.

When the Prime Minister stood up at a press conference in Canberra on 5 August with the Minister for Foreign Affairs and the Attorney-General to announce the government's response to the terrorist threat arising out of the conflict in Iraq and Syria. The Prime Minister said:

When it comes to counter-terrorism, everyone needs to be part of team Australia, and I have to say that the government's proposals to change 18C of the Racial Discrimination Act have become a complication in that respect. I don't want to do anything that puts our national unity at risk at this time, and so those proposals are now off the table.

The Prime Minister said that the decision to shelve Senator Brandis's attack on the Racial Discrimination Act was a leadership call that he had made. He went on to talk about what political leadership meant. He said, and this is important:

In the end, leadership is about preserving national unity on the essentials

I have said this before and I will repeat it. I absolutely agree with the Prime Minister on the importance of leadership in this context, on the importance of senior political leaders in fostering community cohesion and harmony.

Unfortunately, the Government has not lived up to this standard. The Government has not shown the leadership we should expect.

In the last few months I have spoken with a number of representatives of the Muslim community across different parts of Australia. They are anxious to assist in combatting the threat of terrorism. Of course they are. These are their communities! No community wants its young men to travel abroad to be put in harms way, to be exposed to the horrors of war, to be further radicalised and battle-hardened and if they survive to return to endanger their own communities and the broader Australian community.

The Government should be working with those communities. It should be standing alongside the Muslim community in this country.

I applaud the Government for abandoning its attack on the Racial Discrimination Act. To its credit, the Government recognised that this ill-conceived policy jeopardised community harmony at a time when harmony is what we need more than ever. But why wont the Government take a firm stand on those in its ranks who continue to prosecute this attack? The Government backbench Senators Bernardi and Smith have reopened this divisive issue with their own Bill to amend the Racial Discrimination Act. We have seen the organisational wing of the Queensland Liberal National Party officially endorse a renewed attack on the Racial Discrimination Act. When will the Prime Minister admonish his colleagues? When will he take responsibility for what his own party says and does?

The Prime Minister has also failed to show leadership on the debate about the burqa, so irresponsibly opened up by the Liberal backbenchers, including the member for Dawson, George Christensen, and the usual suspect, Senator Bernardi. At a time when Muslim women feel, because of their dress, particularly conspicuous and vulnerable to attack and to discrimination, these two Liberals have done their best to exacerbate that fear. Appallingly, they have used the megaphones that they hold as federal politicians to single out Australian Muslim women as different, even dangerous.

When the issue was put to the Prime Minister, the best he could manage was:

I find it a fairly confronting form of attire. Frankly, I wish it was not worn.

The Prime Minister said, 'We can all have an opinion on the issue.' We certainly can, but the Prime Minister, I hasten to remind him, is not just a private citizen. He is not just a political operator for the conservative cause. He is supposed to be a national leader. He occupies the highest public office in Australia.

His leadership role is particularly important with respect to Australian Muslims. The Muslim community is more intimately affected than any other community in our country by the problems emanating from the strife in Iraq and Syria. The broader Australian community and the Australian Government must work together with the Muslim community to resolve those problems.

But it is understandable that the Governments new national security laws have caused some agitation in the Muslim community.

In no small part this is because Senator Bernardi, the Member for Dawson and others like them have done their best to sow division and distrust between Muslim Australians and the broader community. It is no surprise that some Australian Muslims feel targeted or singled out when our public debate stoops to this sort of low.

But this agitation is also caused by a failure of Government to clearly explain its new national security laws.

As I have said, Labor has supported each of those laws, with appropriate amendments.

But I must say I am disappointed with the way the Government has failed to make the case for those laws. Those who watched this Bill pass the Senate last week would have seen the Attorney-General flatly refuse to answer questions from the cross-bench about the substance of this Bill. It fell to the Labor Opposition to put on the record the purpose and effect of the Governments own amendments, arising out of the PJCIS Report, which we supported. It fell to the Labor Opposition to explain why further amendments proposed by the cross-bench were unnecessary or undesirable.

Labor is very happy to explain its position on this and other national security issues. But it is the role of the Government to lead the debate. If the Government does its job properly, Australians should feel reassured that the Parliament, the Government and the security agencies can be trusted to serve the national interest without trampling on individual liberties. If the Government does its job properly, public debate should be sufficiently well informed that wildly exaggerated claims about the effect of new national security measures can be calmly and logically dismissed.

As we have said consistently throughout recent months, Labor approaches national security legislation as a responsible Opposition should.

Having carefully considered the Bill but forward by the Government, and having ensured a number of significant improvements to that Bill through the Intelligence Committee inquiry process, Labor has agreed to support the measures being proposed to bolster our national security laws.

Here, as previously, Labor has insisted on proper scrutiny. Here, as previously, Labor has worked constructively as an Opposition to assist the Government in getting this Bill right.Here, as previously, Labor is willing to support changes to our national security laws that are necessary and proportionate to meet the changing threats that our nation faces.

But I want to reiterate that we require more than legislation such as this to address the threat of terrorism. We require a coherent strategy from our political leaders to build a more cohesive community. We need to be intervening among disaffected and marginalised youth well before control orders and other extraordinary measures are required. I call on the Government to explain what it will do on this crucial part of counter-terror policy.