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Thursday, 28 June 2018
Page: 4263


Senator BARTLETT (Queensland) (09:31): According to the speakers list, I am the final speaker before the government's representative concludes the second reading debate on these two pieces of legislation. We will then move into the Committee of the Whole, where there will be a number of amendments and, of course, an obligation on the Senate to query at length the government and, potentially, the Labor opposition about the actual impact of the 280-odd amendments that were made to these pieces of legislation in the House of Representatives just two days ago.

Just to recap for people: we are talking about two very significant pieces of legislation, the Foreign Influence Transparency Scheme Bill 2018 and the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018. These have been around since late last year. They were the subject of an inquiry by the Parliamentary Joint Committee on Intelligence and Security, but, as multiple speakers have noted, that committee excludes anybody other than the Labor and coalition parties, which means that no other party, no other member of the Senate, has had any opportunity to be part of those deliberations. So what we are, in effect, dealing with, given that 280 amendments were made to these two pieces of legislation just two days ago in the House of Representatives, is pretty much new legislation. From all reports, it is improved legislation compared to the original version from last year—and thank heavens for that is all I can say, because they were abominations. But nonetheless, in effect, this is new legislation that the Senate is now having to consider in detail, just a couple of days later. That is the situation we are faced with. It's not the first time that's happened, of course. I am not particularly interested in doing a lot of faux outrage about that. I'm simply describing the situation as it stands.

I will take the opportunity to put on the record again, as I have multiple times in the last few months and as I did multiple times 10 or more years ago, that I think it is completely inappropriate that the Parliamentary Joint Committee on Intelligence and Security excludes people other than the Labor and coalition parties. It has been the case for that committee and its predecessors for a long period of time, apart from a brief interregnum when Andrew Wilkie was on it, at the time when there was a minority government and he was able to use that situation to get himself on it. I think that is correct.

I recall raising this many times when I was here in the past. Senator Robert Ray, in particular, would put the case then that Senator Wong put yesterday—that this is a committee that really is only for people from parties of government. I think those were the precise words she used. And that is clearly the view of the Labor Party and the coalition parties. It perhaps has its own internal logic, but it also demonstrates a serious part of the problem here. We have the Labor Party and the non-Labor parties in their various forms over the years that have basically been part of the political establishment and the governing class for decades—in fact, for over a century. They basically see defence matters, security matters, intelligence matters as their domain, and the public just have to trust them. Some of the time, that is fine, but you honestly don't need to be much of a student of political history to demonstrate that that agency has, at times, acted in a way that's quite clearly inappropriate. In fact, all you need to do is read the actual history that's been put and written or authorised by the actual agencies, such as ASIO—the history of ASIO, for example, that's been quite thoroughly written in recent times and published. The agency has quite clearly been acting in the interests of the governing class against the interests of the public and against people's basic civil liberties.

When I came back into this place towards the end of last year and made what would loosely be called my first speech, in the formal sense of the word, I made the comment that this parliament as a whole—and, historically, parliaments around the world—far too often operates to actually continue to keep the community under the thumb and to suppress people and oppress people in the interests of the establishment and the governing classes. That applies even more to the executive and government, where the executive class and the government class, over time, basically just assume that their interests equate to the public interest. History has shown time and time again that, in our own country, let alone so many other countries that like to call themselves a democracy, that has not been the case. The state operates to protect its own interests against the public, and, where necessary, oppresses and suppresses the public if the state sees its interests are threatened. Time and time again, that has been shown to happen. It's not some conspiracy theory; that's just a natural consequence of how an embedded governing class will operate if there is insufficient transparency. And one of the reasons that is able to happen is precisely because the relevant committee that can examine this stuff is contained and is exclusively for those people from the parties of government, who basically operate as their own separate club on these issues, and the public are excluded from it. The fact that that is happening again now should not be a surprise. In fact, it would be an extraordinary surprise if something different had happened. We all hoped something different might have happened this time. There was a huge amount of civil society outrage about what was being proposed. There were strong calls, particularly on the Labor Party, not to do a deal on this and to just scrap these bills, start again properly and involve civil society in putting forward a better alternative, but the status quo always comes back around each time.

That is not to deny, let me say, that there have no doubt been some good improvements. I'd again use historical equivalence. The former senator John Faulkner, who was widely respected in this place and who did take that role seriously, definitely reduced some of the very dangerous provisions of security legislation in their original form that were put forward by the government of the day. I acknowledge that, and I'm sure that has happened again here. Nonetheless, the simple fact is that, particularly in regard to the espionage and foreign interference bill, this is delivering another massive expansion of state powers with completely inadequate scrutiny and transparency and with completely inadequate opportunity to scrutinise what is happening and to test some of the assertions that will be put forward, I'm sure, by the relevant minister over the course of this debate.

Nowhere is that shown more clearly than if we go back to just yesterday and the reasons given as to why this is urgent. Forget about the procedural issues—whether or not a motion was needed. This is still being pushed through on the last day of the sitting period. We could just as easily deal with this in August. There's plenty of other legislation to deal with today—in particular the Higher Education Support Legislation Amendment (Student Loan Sustainability) Bill 2018, which the Greens and Labor opposes and which has a 1 July start date, so it has to get through if it's going to be operating; although I certainly hope it doesn't get through—but somehow or other it's this national security legislation amendment bill that is urgent, and with no justification.

The only justification, and we all know it, is the political imperative of the by-elections—the so-called super Saturday coming up in four or five weeks. The only reason for the urgency we been given is a very short statement from the government yesterday saying that it's urgent because they say it's urgent in response to an 'unprecedented threat of espionage and foreign interference'. You don't need to have been here for years and years or to have followed these proceedings for years and years like I have to know how hollow the comment of 'unprecedented threat of espionage and foreign interference' is. Any basic student of history in this country, let alone anywhere around the world, knows that Western democracies—anywhere as authoritarian as you like—always fall back on the excuse of 'unprecedented threat of espionage or foreign interference'. It goes back to the history of Federation—'We've got to federate to protect ourselves against foreign interference.' It's the one thing that all governments use to try to justify giving themselves more power and to put fear in the community—they say, 'We have to do this because of this scary thing over there.'

Again, I'm not saying that there are no threats. Of course there are threats. But the issue here is: why do we need these extra powers to deal with those threats? And that question has been asked time and time again for 20 or more years now, for—Senator McKim told me the number yesterday.

Senator McKim: Over 200.

Senator BARTLETT: Over 200 times this has happened with different pieces of legislation and amendments at both state and federal levels over 20 years. At the federal level it would be well into double figures. We've amended these pieces of legislation 30 or 40 times. And each time I'm sure we heard 'unprecedented threat'. Each time I'm sure we heard 'urgent'. We've certainly heard them time and time again. I quoted yesterday from an example from August 2004, under the shadow of the same non-existent urgency to ban same-sex marriage. We also had the non-existent urgency to deal with an 'unspecified threat' that suddenly had to be dealt with.

Each time, we've never really had the opportunity to test why these specific powers are needed. And, inasmuch as there have been reviews of some of the extra powers that have been provided to agencies, like ASIO and espionage and intelligence agencies, very rarely has it been said, 'Yes, it was really good that that change was made because otherwise—' Some of these powers have never been used. But what they do give governments is more and more power to use and act in their own interests. This is the political class and the establishment class and the governing class and the state acting in their own interests against anybody they see as a threat.

I saw an interesting quote in an interview yesterday that Mr Hastie, the Chair of the Parliamentary Joint Committee on Intelligence and Security, gave to the ABC. The interviewer was asking, in respect of journalists, about how much transparency is okay, because the government's likely to say it's made amendments now that makes it okay for journalists—it's safe now, if it's in the national interest. It's the old national interest test that's used in so many pieces of legislation. It's all over the place. It's in the Migration Act as well. It never has any meaning. The government can interpret it to mean whatever it likes. National interest means what the government says it means, which means national interest is the government's interest. And that's how it has basically operated in a legal sense time and time again. But the particular quote that caught my eye was Mr Hastie saying that apparently, under these amended bills, there's robust defence for journalists, and another check and balance is that the Attorney-General has to consent for a prosecution. That's okay then! The Attorney-General has to consent! That makes me feel much more relaxed—not.

We saw—I spoke about this last year, and I think we'll see about a specific case later today—the Pine Gap protesters and the way the Attorney-General not only explicitly consented to pursuing but also tried to get peaceful, harmless protesters, who presented absolutely no security threat at all, jailed for years. On the matter of consent, the Attorney-General enthusiastically pursued the powers that they had—powers that hadn't been used for decades that were set up for completely different purposes under an act during the Cold War—and used those powers totally for political purposes. If they can use powers under a 60-year-old act that had been set up for completely separate purposes, in the context of the Cold War, to pursue harmless protesters conducting prayers and singing songs inside Pine Gap but nowhere near the actual facilities, imagine what they can do with all of the powers that this Senate keeps giving them time and time and time again.

Mr Hastie also said there was protection, saying:

… the Attorney-General actually has to consent for a prosecution, so there's a number of different things that have to be done for a prosecution to proceed, and that's designed to prevent a chilling effect on the media because a free media is critical to democracy and we don't want to diminish that at all, in fact we want to enhance it and I think we've struck the right balance …

The ABC host said, 'Given you've made such bold statements about the need for free reporting of these matters, I'm curious as to whether you are uncomfortable with codifying jail time for journalists for doing just that—for acting as a free media.' Mr Hastie said:

What we can’t have is radical transparency.

This is a new concept—not just any old garden-variety transparency but 'radical transparency'. He said the whole point of the secrecy offences was 'to prevent privileged and classified information from being inappropriately disclosed'. Of course, it will be the government that will decide what is inappropriately disclosed. We all know the government itself, over time, has repeatedly disclosed classified information. When it's in their interests, they're happy to do it. They just don't want anybody else to do it if it's against their interests—and those are the interests of the government of the day. The ABC person said, 'So where do you draw a line? What is "radical transparency"?' Mr Hastie said:

Radical transparency is Julian Assange dropping a whole bunch of commonwealth secrets out for public consumption …

That's what it is. That's just one example. But he is, of course, an Australian citizen—from Queensland originally, I might say—who has basically been abandoned by this government. I'm not giving him a character reference, but I am certainly saying he has a right as an Australian citizen to receive proper support against what has clearly been an international conspiracy by governments to try and silence him. He has been kept in isolation for years. He has been basically silenced already because of the threat he poses to the state—not to the community, not to the public. The things that he exposed and, more specifically and definitely, that Edward Snowden exposed are things that governments wanted hidden, things so-called democratic governments were doing to their own people. So we have that definition: 'Radical transparency is Julian Assange.' These laws are attempts to criminalise and attack people like Julian Assange. Let's not forget that Julian Assange is acknowledged as and registered as a journalist, and actually won a Walkley Award for his work exposing governments acting against their own citizens. We've seen this time and time again in the United States; it's a case of great debate at the moment.

Let's not forget the other very significant thing. We've had this march over the last couple of decades towards more and more powers for our intelligence agencies. The size of ASIO and relevant organisations has expanded, and the size of their budget has gone through the roof over the last couple of decades—and that's in the context of ASIO's own history, their published history, showing the number of times they've clearly overstepped their legal authority. They have clearly acted against the rights of citizens in this country, based on their own belief, their own internal little bubble. I'm not saying they're bad people; I'm saying that's what happens when people are put in a bubble and made to think that their views are the only views that matter, and where there is no transparency and the powers that people are given are absolute. It is almost inevitable that, regardless of the good character of those involved, if people are put in a situation where they're given such absolute powers with such minimal accountability and transparency, you will get abuse of those powers. So, to expand those powers further, particularly without proper scrutiny and genuine opportunity to test the assertions made by the government of the day as to what those powers will and won't mean, is incredibly dangerous. That's why the Senate should have supported Senator McKim's motion to have these new pieces of legislation scrutinised by a Senate committee.

I'm sure the minister will give answers he believes are true, as he's advised, over the course of the committee stage of this debate. However, there is no capacity for those answers to be tested by a range of other people and all of the legal experts in this country who have a whole range of different political views, ideological perspectives and philosophical ideals. We will do the best we can but, as good as Senator McKim and others in this chamber might be with their forensic minds, it would be much better to open that up to all of the forensic minds around this country to properly test all of the amendments that have been put forward to make sure they do what they say they are going to do. Even if you totally agree philosophically with the intent of what's being proposed here—which I do not—this would make sure that there are not broader powers than are intended, that they're worded the right way and that there are commas in the right places. We all know of times when this has gone wrong in the past. I'm deeply concerned about what is being done here. It is deeply disappointing that the Labor opposition is going along with the government in this process, although it is unfortunately not surprising because it's happened so many times before. (Time expired)