Back to All News

We can be vigilant against acts of terror without undermining the very freedoms we seek to protect

Speeches in Parliament
Penny Wright 24 Sep 2014

Senator WRIGHT (South Australia) (13:32):  I rise to speak today on an extremely significant piece of legislation, the National Security Legislation Amendment Bill (No. 1) 2014. Indeed, this legislation has been characterised as the most significant change to security laws in Australia since the far-reaching antiterrorism laws introduced by Prime Minister John Howard in 2005.

Let me say clearly and right at the outset, the Australian Greens understand the need for intelligence agencies to have appropriate powers to protect Australia's national security interests. We also understand of course the serious nature of current threats to national security. After all, we are part of this society we are wanting to protect. We live in the community. My kids and my friends and my neighbours live in our community. We share an interest with all other Australians in living safely and securely.

But we also share an interest with our fellow Australians and, indeed, the good fortune, to live in a democracy with a legal system that has developed over centuries to uphold individual liberties and comply with the rule of law. As the Prime Minister said yesterday, regrettably, for some time to come the delicate balance between freedom and security may have to shift. It is in that balance and that shift that lies our task as a responsible representative body and as legislators to consider what the implications of that statement will be and how it will be manifested in legislation that comes before this chamber. That is why this legislation and the legislation that is coming down the track is significant and that is why it is vital that there are those of us in this parliament who are willing to look carefully at the substance of what is being proposed. We must explore all its possible consequences, intended and otherwise, to ensure that the rights of Australians-the rights of all of us-are not being unduly compromised or eroded.

Among other measures, this bill seeks to expand the power of intelligence agencies. If that is to occur, the Australian Greens believe that those expansions must be necessary. There must be compelling evidence to justify enhanced security powers and the expansions must be coupled with appropriate safeguards.

I have serious concerns about some of the proposals in this bill which would significantly expand the power of intelligence agencies without the necessary safeguards and that, as a result of this legislation, the privacy and other rights of average Australians will be compromised. As stated in the Gilbert + Tobin Centre of Public Law submission to the Parliamentary Joint Committee on Intelligence and Security, the PJCIS:

There is a need, in the intelligence context, to maintain a strong accountability framework so as to ensure that corruption and abuses of power do not occur (or are at least can be detected and minimised).

Their submission goes on to note that the legislation in its current form lacks accountability by:

... establishing vague and unduly broad criteria for the issue of a warrant, internalising the process for authorising intelligence-gathering activities and cloaking these activities in even greater secrecy than that which they have historically enjoyed.

As well as concerns about accountability, the Australia Greens have concerns that many of the measures that we are being asked to vote on today have not been subject to appropriate parliamentary scrutiny. Unlike other legislation, this bill has not been considered by the Senate Standing Committee on Legal and Constitutional Affairs, a committee in which all senators are able to participate. Instead it was referred to the Parliamentary Joint Committee on Intelligence and Security, the very committee which had originally come up with the recommendations for reform to national security legislation on which it is based. If passed, this bill will implement the majority of the recommendations in chapter 4 of the Parliamentary Joint Committee on Intelligence and Security 2013 report of the inquiry into potential reforms of Australia's national security legislation. So we have a parliamentary committee scrutinising a bill which was largely written by itself.

Our concerns do not finish there. It is a parliamentary committee from which the Australian Greens and all other crossbenchers have been actively excluded. What justification can there be for the exclusion of representatives of a significant proportion of the Australian public from considering the implications and effects of laws that will change Australian people's rights in unprecedented ways? Then there is the short consultation period, again noting that this is legislation which will change the rights of security agencies and individuals in Australia in unprecedented ways. Various organisations and individuals making submissions have commented on their inability to consider that legislation in detail due to the short time frame provided for public consultation.

Similarly, there is concern about the speed with which this legislation has been introduced to parliament and the fact that we have not yet seen some of the significant amendments. We are being assured that they will meet the concerns that have been raised and, yet, we have not seen them yet. It also means that the parliamentary watchdog on human rights, the Parliamentary Joint Committee on Human Rights, has not been able to assess the human rights implications of this legislation as yet. In my view, it is likely that many of the provisions of this bill will be found to be incompatible with various human rights in Australia. It is likely that the committee will actually make the same finding at the end of its process. But it is also likely that the government and the opposition will have dispensed with this and will pass the bill before it has even been canvassed by the human rights committee, making a mockery of the process that is designed to give appropriate consideration to human rights in the law-making of our national parliament.

Given the complexity and consequences of this legislation, it is impossible to fully articulate all of the Australian Greens' concerns in a short speech. However, I concur with many of the concerns made in submissions by the Gilbert + Tobin Centre of Public Law, the Media, Entertainment & Arts Alliance, the Law Council of Australia and other credible bodies, who have invested a great deal of time and expertise in analysing this legislation.

I will go to three of the most controversial measures being proposed in this National Security Legislation Amendment Bill (No. 1) 2014. First, there is the proposed special intelligence operations, or SIO, scheme, which would provide for criminal and civil immunity, provided that certain conditions are met, for ASIO officers and affiliates who are involved in criminal activity during the course of an undercover operation. It should be noted that the safeguards and accountability requirements for the special intelligence operations scheme are less stringent than that recommended by the PJCIS. There has also been plausible speculation that this scheme could open the door to impunity for actions that amount to torture. Obviously, such ambiguity is totally unacceptable. The Attorney-General has said that he will be moving amendments to rectify this concern, but we have not seen the amendments yet, so how do we know what they will say? Clearly, given the scandal and shocking situation that arose in the United States in relation to the question around torture in Guantanamo Bay, that is something that the Australian Greens and the Australian public would never canvass in Australia.

A more general concern from some submitters to the PJCIS noted that the government should provide concrete evidence as to why an SIO scheme-a special intelligence operations scheme-is required in the first place. The Attorney-General's second reading speech canvassed the idea that corresponding protections to those available to the Australian Federal Police should be extended to participants in covert intelligence operations. This logic was refuted by Gilbert + Tobin in their submission, which said that ASIO should not automatically receive the same powers as the AFP as it is not analogous. It is not a law enforcement agency and it is not accountable through the criminal trial process in the way that a law enforcement agency is.

Secondly, as we have already heard from my colleague Senator Ludlam, the Australian Greens are also highly concerned about the proposed new offences and increased penalties for existing offences relating to the unauthorised disclosure of a special intelligence operation. This provision has been met with criticism by the Media, Entertainment & Arts Alliance, among others, who are concerned it could chill national security reporting. The penalty for existing offences will be increased from two years to 10 years imprisonment. We also have concerns about parts of the proposals regarding ASIO's warrant powers, including the ability of ASIO to access an innocent third party's computer or an entire computer network, or to disrupt such systems to target a suspect-again, as has been discussed by my colleague Senator Ludlam.

The Australian Greens echo the calls of experts in this space to urgently engage the next appointed Independent National Security Legislation Monitor to review existing legislation in light of the amendments proposed in this bill. This independent scrutiny is critical and should be abided by. The advice should be heeded, unlike the sorry history that we have seen with both governments in ignoring previous reports of this monitor-when the position was actually filled. We should not make amendments of this nature lightly. Our national security legislation should receive proper public and parliamentary scrutiny and should strike a real balance between freedom and security.

I would like to revisit the issue of proposed offences for unauthorised disclosure of information about special intelligence operations, with reference to the potential implications for journalists and freedom of speech more broadly. I believe this has dangerous implications for freedom of speech and the transparency and accountability of government that we have a right to expect in a democracy. Schedule 6 of the bill will create two new offence provisions and update existing offences for the unauthorised communication of intelligence information.

As outlined in a submission to the PJCIS by the Gilbert + Tobin Centre of Public Law, a person may be imprisoned for a maximum of five years for disclosing any information relating to a SIO, a special intelligence operation. This is an exceptionally broad offence that will apply to any person, not just an ASIO employee or contractor. There is no requirement that the person is aware that a SIO has been authorised-and this knowledge would actually be very unlikely given the secrecy around a SIO authorisation. There is also no requirement that there be evidence of adverse consequences or even possible consequences arising from a disclosure.

The Australian Greens share the concerns of the MEAA and other organisations that have raised the possibility that a journalist may face up to five years imprisonment for publishing information that relates even vaguely and inadvertently to a SIO. This could have a chilling effect on national security reporting, with journalists understandably wary about reporting on issues that are well within the public interest. Under this offence it is enough that the person is aware of a substantial risk that the disclosed information is connected in even a minor way with a SIO. It is a very low standard indeed.

In relation to the second and more aggravated offence for unauthorised disclosure of information about a SIO, the Gilbert + Tobin Centre of Public Law summarise that the offence occurs when a person intends or the disclosure will endanger the health or safety of any person or prejudice conduct of a special intelligence operation; however, a number of submissions to the PJCIS say that the penalty for this offence is excessive, provides limited excuses and in particular is missing any defence in the public interest. As I often say, accurate information is the currency of democracy. The Australian Greens do not support the chilling of national security reporting through introducing broad offences with serious penalties as well as increasing penalties for existing offences. It is the crucial role of the media to scrutinise government and its agencies.

As reported in The Australian back in July, Senator Brandis has insisted that the new offences are not aimed at journalists or placing restrictions on freedom of speech. However, it was noted in that editorial that the legislation makes no exemptions that could open the way for its misuse by a government or bureaucracy intent on secrecy to avoid embarrassment. Indeed, under the first offence I mentioned-the inadvertent offence, where a person inadvertently discloses information about a SIO-the Gilbert + Tobin Centre of Public Law used the example of a teacher who uses an article written by a journalist that mentions an ongoing terrorism investigation relating to a SIO as a teaching aid, for example, in a legal studies class. As suggested in their submission, the teacher may be caught by this offence. That is how broad it is.

As mentioned earlier, the Australian Greens are concerned about the lack of independent scrutiny for this significant legislation. The bill is extremely complex and it is only the first of three national security bills foreshadowed by the government this year. It was recommended in the 2013 Parliamentary Joint Committee on Intelligence and Security report that amendments implementing the committee's recommended changes to Australian intelligence community legislation be released as an exposure draft for public consultation, as well as being subject to parliamentary committee scrutiny and targeted consultation with the Independent National Security Legislation Monitor and the Inspector General of Intelligence and Security. This has not happened.

We can and we must remain vigilant against acts of terror in Australia but we must also remain vigilant about protecting the rights and freedoms of Australians. As Human Rights Watch Australia Director Elaine Pearson wrote in The Guardian yesterday:

... parliament shouldn't rush to adopt laws that infringe on basic rights and that risk criminalising the legitimate actions of whistle-blowers, journalists and human rights activists.

These changes must not be made lightly. They must not be made in a rushed way. Every possible scenario must be considered. Every possible gap or unintended consequence deserves our utmost attention.

This legislation engages a number of human rights, as outlined in the statement of compatibility with human rights that accompanies the bill. A number of submitters to the inquiry voiced concerns about the human rights implications of the bill. There is the unacceptable erosion of freedom of communication and freedom of the press, as suggested in a joint submission from numerous media organisations; there are the undue restrictions on freedom of political communications, as expressed by the Pirate Party in their submission; and there is the undermining of the right to freedom of expression and the right to protection from arbitrary and unlawful interferences with privacy, as outlined in the submission made by the councils for civil liberties. The Human Rights Commission in their submission also raised a number of human rights concerns which the commission suggest require further consideration prior to the enactment of the bill.

This bill represents the most significant change in security law in almost a decade. We must responsibly and carefully analyse and scrutinise this legislation to ensure it does not disproportionately restrict the rights and freedoms of Australia. We can be vigilant against acts of terror without undermining the very freedoms we seek to protect. We must be steadfast in protecting the fourth estate. Accurate information is the currency of democracy, and journalists must not be prevented from publishing information that may be embarrassing for the government of the day. Journalists must be empowered to tell uncomfortable truths. For this reason and many others the Senate must subject this bill and any further national security legislation to the highest level of scrutiny. For this reason I will not be supporting this bill.

Back to All News