Division Description Changes — Bills — Counter-Terrorism Legislation Amendment Bill (No. 1) 2016; Second Reading — 8th Nov 2016

Change	Division
senate vote 2016-11-08#2 Edited by mackay staff on 2016-11-19 04:07:01	Title Bills — Counter-Terrorism Legislation Amendment Bill (No. 1) 2016; Second Reading Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 - Second Reading - Agree to the bill's main idea Description ~~<p class="speaker">Nick Xenophon</p>~~ ~~<p>I continue my remarks on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016.</p>~~ <p>Moreover, the evidence presented may well be derived solely from information provided by foreign intelligence agencies, without our own security and intelligence having completed their own investigations or analysis. No doubt the government is thinking of the need to act quickly in response to intelligence, especially highly classified communications or signals intelligence obtained from Australia's primary intelligence partners, the so-called 'Five Eyes' of the United States, the United Kingdom, Canada and New Zealand. There may well be cases where urgent action is required. It is also the case, however, that signals intelligence often requires careful analysis, understanding of context and, frequently, extensive additional research.</p> The majority [voted to support](http://www.openaustralia.org.au/senate/?id=2016-11-08.139.2) the main idea of the [bill](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/s1038)'s main idea. In parliamentary jargon, they voted against giving the bill a [second reading](http://www.peo.gov.au/learning/fact-sheets/making-a-law.html). This means that the Senate can now discuss the bill in more detail. ### What is the bill's main idea? According to the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1617a/17bd020), the bill: *> is the latest in a series of reforms to national security and counter-terrorism laws since mid-2014. The Government state*s the Bill would address issues that have come to light through recent counter-terrorism investigations and operational activity. A key part of the bill relates to [control orders](https://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/Controlorders.aspx). For example, the bill would lower the minimum age that a control order can be imposed from 16 to 14 years of age. It would also [introduce new ‘monitoring powers’](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1617a/17bd020) to: > allow police to use entry, search and seizure, telecommunications interception and surveillance device powers in relation to a person subject to a control order to monitor their compliance with the order and prevent terrorist related conduct A [concerning part of the bill](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1617a/17bd020) relates to procedural fairness and will: *> allow courts to consider information that is not disclosed to the person subject to a control order or their representative for security reasons, in control order proceedings ... and introduce a system of special advocates to represent the interests of those people in proceedings from which they and their leg*al representatives have been excluded ... <p>Moreover, intelligence from foreign sources is not only from our Five Eyes partners. Australia's intelligence agencies have broad liaison relationships, including with some foreign intelligence and security services, some of whom have reputations that are, at best, mixed. The government keeps the details of those relationships highly classified, but it is not unreasonable to consider the possibility that a person might be subject to an application for a control order on the basis of information not from the British Security Service or the US Central Intelligence Agency, but from, for instance, the Jordanian General Intelligence Directorate or Pakistan's notorious Inter-Services Intelligence. The potential for injustice similar to that involved in the Haneef case is clear. However, we will never know the story because the whole process will be secret.</p> <p>More broadly, the implementation of this regime—the arguments and decisions for imposing control orders—will be a further step in the development of a body of secret legal opinion and precedent. Courts will take secret decisions on the basis of secret information; precedents will be set. Secret courts and secret law are never a desirable development. Senators should be very clear in their understanding of what is proposed here.</p> <p>While the Law Council of Australia has welcomed the inclusion of the special advocate scheme as a measure that will mitigate the procedural unfairness identified in the original bill—and I welcome it—it has also recommended an immediate review by the Parliamentary Joint Committee on Intelligence and Security. I note that there are no crossbenchers on that committee.</p> <p>There are certainly very significant issues raised by these provisions of the bill. To take but one example in relation to legal professional privilege in communications between the special advocate and the person subject to a control order: the court will be responsible for on-forwarding communications between the special advocate and the party, with a responsibility to ensure that such communications do not prejudice national security. Significantly, there is provision for the court to consult with the Attorney-General or his or her representative in determining whether a communication may prejudice national security. The Attorney-General and his representatives will thus be privy to communications between the special advocates and persons subject to a control order. Significantly, while special advocates will be appointed by the courts, it is the executive that will prescribe by regulation the requirements a person must meet in order to be appointed as a special advocate.</p> ~~<p>The Attorney-General has acknowledged that while the bill creates the architecture for a special advocate role:</p>~~ ~~<p class="italic">… some time will be needed for the supporting regulations and administrative arrangements to be established for the regime to work.</p>~~ <p>Given the obvious importance of the special advocate role in what is proposed, it would be much better if these arrangements were incorporated within the bill and the entire proposal subject to further parliamentary committee scrutiny. These are matters that ought quite reasonably to be asked of the Attorney in the committee stage.</p> <p>The other provisions I wish to focus on now are those relating to the secrecy provisions of section 35P of the Australian Security Intelligence Organisation Act 1979, which implement the government's response to recommendations made by the Independent National Security Legislation Monitor. Schedule 18 broadly implements the recommendations made by the Independent National Security Legislation Monitor in his report on section 35P of the ASIO Act, which was a scathing report on section 35P.</p> <p>That report arose from the previous failure of the parliament and the Parliamentary Joint Committee on Intelligence Services in considering the government's original proposals for draconian secrecy provisions relating to the conduct of special intelligence operations by ASIO. I voted against those provisions. They were something the joint committee said ought to be passed, and they were passed by the parliament. But that change was subsequently referred to the Independent National Security Legislation Monitor, the Hon. Roger Giles AO QC, a former Federal Court judge and eminent lawyer and jurist. Quite frankly, I am sad to see him go. He has retired or resigned from that position.</p> <p>Professor Clinton Fernandes, a former army intelligence officer, now a professor of the University of New South Wales at the Australian Defence Force Academy, and I made a joint submission to that inquiry. No other members of parliament made a submission at that time. Our main concern was the chilling effect that the new law would have on scrutiny of ASIO's operations, especially through media reporting. After conducting his inquiry, Mr Giles observed that section 35P:</p> <p class="italic">... creates uncertainty as to what may be published about the activities of ASIO without fear of prosecution. The so-called chilling effect of that uncertainty is exacerbated because it also applies in relation to disclosures made to editors for the purpose of discussion before publication.</p> ~~<p>Mr Giles went on to say:</p>~~ <p class="italic">Journalists are prohibited from publishing anywhere at any time any information relating to an SIO, regardless of whether it has any, or any continuing, operational significance and even if it discloses reprehensible conduct by ASIO insiders.</p> ~~<p>That is quite chilling. The underlying issues were summed up by the INSLM as follows:</p>~~ <p class="italic">The basic problem with section 35P is that it does not distinguish between journalists and others (outsiders) and ASIO insiders. The application in this manner of broad secrecy prohibitions to outsiders is not satisfactorily justified, including by precedents in Australia or elsewhere.</p> ~~<p>Mr Giles also made this point:</p>~~ <p class="italic">Section 35P is arguably invalid on the basis that it infringes the constitutional protection of freedom of political communication. Section 35P is also arguably inconsistent with article 19 of the International Covenant on Civil and Political Rights and so not in accordance with Australia's international obligations.</p> <p>The fact that that legislation got a tick of approval from the PJCIS and enjoyed bipartisan support from the coalition government and the Labor opposition tells me that parliamentary scrutiny of new counterterrorism and national security legislation needs to be much more rigorous and robust.</p> <p>We now have before us the government's effort to put things right on the basis of recommendations made by the INSLM, Mr Giles. These amendments aim to introduce new protections to section 35P by establishing two separate offence regimes, with one regime to apply to persons who came to the knowledge or into the possession of the relevant information in their capacity as an entrusted person and a separate regime for outsiders. Under these new regimes the disclosure of information made by members of the community, except those who received information in their capacity as an entrusted person, will only constitute an offence if the information will endanger the health or safety of a person or prejudice the effective conduct of a special intelligence operation. The amendments will also establish a defence of prior publication available only to persons who did not receive the relevant information in their capacity as an entrusted person. This bill reflects the INSLM's view that it is appropriate to retain disclosure offences, and that the special intelligence operation scheme is both necessary and proportionate.</p> <p>The government argues that its agreement to implement all of the INSLM's recommendations regarding section 35P demonstrates its commitment to ensuring that we are achieving 'the right balance between the public interest and our national security requirements'. I agree that the amendments within the present bill are an improvement on the provisions of section 35P that were previously passed by the parliament. However, I do make the point that they are measures of considerable complexity and some ambiguity. Some significant stakeholders have certainly expressed the view that the INSLM's recommendations, and by implication the provisions of this bill, do not go far enough to provide certainty to journalists and others to know what information may be published without exposure to criminal liability or to protect journalists and whistleblowers who might seek to disclose allegations of wrongdoing in the course of a special intelligence operation. These are matters that I hope to raise with the Attorney in the committee stage. For example Paul Murphy, CEO of the Media, Entertainment and Arts Alliance, stated:</p> ~~<p class="italic">The Monitor’s report, while welcome, has not changed the fundamental intent of section 35P which is to intimidate whistleblowers and journalists.</p>~~ <p>These amendments are certainly worthy of further close and critical scrutiny, if not by the PJCIS then by the Senate Legal and Constitutional Affairs Legislation Committee. That would certainly allow media organisations, journalists, legal experts and other interested parties to make detailed submissions in relation to the precise amendments that are before the Senate now.</p> <p>There are many other complex and potentially controversial provisions within this bill. While some have been reviewed by the PJCIS, others have not. If we are serious about the balance between security and accountability, between secrecy and scrutiny of our intelligence legislation, there needs to be further debate and review. This is a duty that the parliament, and especially the Senate, needs to commit itself to with every new piece of counterterrorism and national security legislation. With each of these bills we are asked to strike the right balance. With each of them we are asked to trade off hard-won rights and long-established principles in favour of public safety and security. I do not think anyone doubts the importance of public safety. The threat of terrorism is real and persistent, but that does not diminish our responsibility to look at every measure with objectivity, scepticism and a determination to not lightly deviate from fundamental principles upon which our legal system and democracy rest.</p> ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Nick Xenophon~~
~~I continue my remarks on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016.~~
Moreover, the evidence presented may well be derived solely from information provided by foreign intelligence agencies, without our own security and intelligence having completed their own investigations or analysis. No doubt the government is thinking of the need to act quickly in response to intelligence, especially highly classified communications or signals intelligence obtained from Australia's primary intelligence partners, the so-called 'Five Eyes' of the United States, the United Kingdom, Canada and New Zealand. There may well be cases where urgent action is required. It is also the case, however, that signals intelligence often requires careful analysis, understanding of context and, frequently, extensive additional research.
The majority [voted to support](http://www.openaustralia.org.au/senate/?id=2016-11-08.139.2) the main idea of the [bill](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/s1038)'s main idea. In parliamentary jargon, they voted against giving the bill a [second reading](http://www.peo.gov.au/learning/fact-sheets/making-a-law.html).
This means that the Senate can now discuss the bill in more detail.
### What is the bill's main idea?
According to the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1617a/17bd020), the bill:
> *is the latest in a series of reforms to national security and counter-terrorism laws since mid-2014. The Government states the Bill would address issues that have come to light through recent counter-terrorism investigations and operational activity.*
A key part of the bill relates to [control orders](https://www.ag.gov.au/NationalSecurity/Counterterrorismlaw/Pages/Controlorders.aspx). For example, the bill would lower the minimum age that a control order can be imposed from 16 to 14 years of age. It would also [introduce new ‘monitoring powers’](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1617a/17bd020) to:
> *allow police to use entry, search and seizure, telecommunications interception and surveillance device powers in relation to a person subject to a control order to monitor their compliance with the order and prevent terrorist related conduct*
A [concerning part of the bill](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1617a/17bd020) relates to procedural fairness and will:
> *allow courts to consider information that is not disclosed to the person subject to a control order or their representative for security reasons, in control order proceedings ... and introduce a system of special advocates to represent the interests of those people in proceedings from which they and their legal representatives have been excluded ...*
Moreover, intelligence from foreign sources is not only from our Five Eyes partners. Australia's intelligence agencies have broad liaison relationships, including with some foreign intelligence and security services, some of whom have reputations that are, at best, mixed. The government keeps the details of those relationships highly classified, but it is not unreasonable to consider the possibility that a person might be subject to an application for a control order on the basis of information not from the British Security Service or the US Central Intelligence Agency, but from, for instance, the Jordanian General Intelligence Directorate or Pakistan's notorious Inter-Services Intelligence. The potential for injustice similar to that involved in the Haneef case is clear. However, we will never know the story because the whole process will be secret.
More broadly, the implementation of this regime—the arguments and decisions for imposing control orders—will be a further step in the development of a body of secret legal opinion and precedent. Courts will take secret decisions on the basis of secret information; precedents will be set. Secret courts and secret law are never a desirable development. Senators should be very clear in their understanding of what is proposed here.
While the Law Council of Australia has welcomed the inclusion of the special advocate scheme as a measure that will mitigate the procedural unfairness identified in the original bill—and I welcome it—it has also recommended an immediate review by the Parliamentary Joint Committee on Intelligence and Security. I note that there are no crossbenchers on that committee.
There are certainly very significant issues raised by these provisions of the bill. To take but one example in relation to legal professional privilege in communications between the special advocate and the person subject to a control order: the court will be responsible for on-forwarding communications between the special advocate and the party, with a responsibility to ensure that such communications do not prejudice national security. Significantly, there is provision for the court to consult with the Attorney-General or his or her representative in determining whether a communication may prejudice national security. The Attorney-General and his representatives will thus be privy to communications between the special advocates and persons subject to a control order. Significantly, while special advocates will be appointed by the courts, it is the executive that will prescribe by regulation the requirements a person must meet in order to be appointed as a special advocate.
~~The Attorney-General has acknowledged that while the bill creates the architecture for a special advocate role:~~
~~… some time will be needed for the supporting regulations and administrative arrangements to be established for the regime to work.~~
Given the obvious importance of the special advocate role in what is proposed, it would be much better if these arrangements were incorporated within the bill and the entire proposal subject to further parliamentary committee scrutiny. These are matters that ought quite reasonably to be asked of the Attorney in the committee stage.
The other provisions I wish to focus on now are those relating to the secrecy provisions of section 35P of the Australian Security Intelligence Organisation Act 1979, which implement the government's response to recommendations made by the Independent National Security Legislation Monitor. Schedule 18 broadly implements the recommendations made by the Independent National Security Legislation Monitor in his report on section 35P of the ASIO Act, which was a scathing report on section 35P.
That report arose from the previous failure of the parliament and the Parliamentary Joint Committee on Intelligence Services in considering the government's original proposals for draconian secrecy provisions relating to the conduct of special intelligence operations by ASIO. I voted against those provisions. They were something the joint committee said ought to be passed, and they were passed by the parliament. But that change was subsequently referred to the Independent National Security Legislation Monitor, the Hon. Roger Giles AO QC, a former Federal Court judge and eminent lawyer and jurist. Quite frankly, I am sad to see him go. He has retired or resigned from that position.
Professor Clinton Fernandes, a former army intelligence officer, now a professor of the University of New South Wales at the Australian Defence Force Academy, and I made a joint submission to that inquiry. No other members of parliament made a submission at that time. Our main concern was the chilling effect that the new law would have on scrutiny of ASIO's operations, especially through media reporting. After conducting his inquiry, Mr Giles observed that section 35P:
... creates uncertainty as to what may be published about the activities of ASIO without fear of prosecution. The so-called chilling effect of that uncertainty is exacerbated because it also applies in relation to disclosures made to editors for the purpose of discussion before publication.
~~Mr Giles went on to say:~~
Journalists are prohibited from publishing anywhere at any time any information relating to an SIO, regardless of whether it has any, or any continuing, operational significance and even if it discloses reprehensible conduct by ASIO insiders.
~~That is quite chilling. The underlying issues were summed up by the INSLM as follows:~~
The basic problem with section 35P is that it does not distinguish between journalists and others (outsiders) and ASIO insiders. The application in this manner of broad secrecy prohibitions to outsiders is not satisfactorily justified, including by precedents in Australia or elsewhere.
~~Mr Giles also made this point:~~
Section 35P is arguably invalid on the basis that it infringes the constitutional protection of freedom of political communication. Section 35P is also arguably inconsistent with article 19 of the International Covenant on Civil and Political Rights and so not in accordance with Australia's international obligations.
The fact that that legislation got a tick of approval from the PJCIS and enjoyed bipartisan support from the coalition government and the Labor opposition tells me that parliamentary scrutiny of new counterterrorism and national security legislation needs to be much more rigorous and robust.
We now have before us the government's effort to put things right on the basis of recommendations made by the INSLM, Mr Giles. These amendments aim to introduce new protections to section 35P by establishing two separate offence regimes, with one regime to apply to persons who came to the knowledge or into the possession of the relevant information in their capacity as an entrusted person and a separate regime for outsiders. Under these new regimes the disclosure of information made by members of the community, except those who received information in their capacity as an entrusted person, will only constitute an offence if the information will endanger the health or safety of a person or prejudice the effective conduct of a special intelligence operation. The amendments will also establish a defence of prior publication available only to persons who did not receive the relevant information in their capacity as an entrusted person. This bill reflects the INSLM's view that it is appropriate to retain disclosure offences, and that the special intelligence operation scheme is both necessary and proportionate.
The government argues that its agreement to implement all of the INSLM's recommendations regarding section 35P demonstrates its commitment to ensuring that we are achieving 'the right balance between the public interest and our national security requirements'. I agree that the amendments within the present bill are an improvement on the provisions of section 35P that were previously passed by the parliament. However, I do make the point that they are measures of considerable complexity and some ambiguity. Some significant stakeholders have certainly expressed the view that the INSLM's recommendations, and by implication the provisions of this bill, do not go far enough to provide certainty to journalists and others to know what information may be published without exposure to criminal liability or to protect journalists and whistleblowers who might seek to disclose allegations of wrongdoing in the course of a special intelligence operation. These are matters that I hope to raise with the Attorney in the committee stage. For example Paul Murphy, CEO of the Media, Entertainment and Arts Alliance, stated:
~~The Monitor’s report, while welcome, has not changed the fundamental intent of section 35P which is to intimidate whistleblowers and journalists.~~
These amendments are certainly worthy of further close and critical scrutiny, if not by the PJCIS then by the Senate Legal and Constitutional Affairs Legislation Committee. That would certainly allow media organisations, journalists, legal experts and other interested parties to make detailed submissions in relation to the precise amendments that are before the Senate now.
There are many other complex and potentially controversial provisions within this bill. While some have been reviewed by the PJCIS, others have not. If we are serious about the balance between security and accountability, between secrecy and scrutiny of our intelligence legislation, there needs to be further debate and review. This is a duty that the parliament, and especially the Senate, needs to commit itself to with every new piece of counterterrorism and national security legislation. With each of these bills we are asked to strike the right balance. With each of them we are asked to trade off hard-won rights and long-established principles in favour of public safety and security. I do not think anyone doubts the importance of public safety. The threat of terrorism is real and persistent, but that does not diminish our responsibility to look at every measure with objectivity, scepticism and a determination to not lightly deviate from fundamental principles upon which our legal system and democracy rest.
~~Long debate text truncated.~~