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Thursday, 28 June 2018
Page: 4395

Senator PATRICK (South Australia) (17:24): Yes. I will perhaps discuss oversight in that regard. I'm really just trying to understand where we would sit right now if the bill were to pass unamended—the reason I'm asking those questions now. I just want to talk you through a real situation and the idea that, as a result of the passage of this bill, we may end up with a situation where we have various different intelligence agencies operating, perhaps in new areas, carrying out different sorts of operations, using the same powers that I accept you've advised me of. I'll just talk through the situation. In fact, I'll use the matter raised by Senator McKim earlier today. I know he was talking about a matter that's before the courts; I will avoid the matter that is before the court. Here is a little bit of background on that matter from listening to Senator McKim. Back in 2004, the Howard government sought to bug the East Timor cabinet buildings in order to gain advantage during a negotiation in respect of the maritime boundary between East Timor and Australia. Of course, all these sorts of negotiations are conducted in good faith—that's the normal regime when doing so—and if you fail to do so you perhaps may, in some sense, be committing a fraud.

In that instance we had a particular agent who raised a concern with the IGIS. I note that you've suggested that there is greater funding for the IGIS in respect of the many changes that are going through the parliament now in relation to national security and intelligence and indeed for this bill. He raised a concern. The IGIS actually took the matter, received the agent—who we know as Witness K—and took his concerns, and passed them or authorised some independent legal action. So we now had a situation where we had counsel and we had an agent authorised by the IGIS to explore a matter that eventually led to a situation where Australia was actually taken to The Hague. Some quite extraordinary orders ended up getting made against Australia. You'll recall that there was a raid on the Attorney's office at that time. A whole range of documents were taken, and in fact the tribunal in The Hague ordered that those documents be returned. There was also an order that was placed restricting Australia's electronic surveillance of the ongoing negotiations.

Unfortunately for Witness K, there was a fallout there, in that he was then denied a passport application; and the person who denied that application was the Director-General of ASIS. The director-general—who it's not unlawful to name, who was then Nick Warner—acted as what is referred to as a competent authority to cancel someone's passport. So now someone's liberties had been constrained. And there's an irony there because it turned out that Mr Nick Warner was actually involved in the original bugging operation, so there was an issue of bias involved in terms of that decision. That matter is before the AAT, and unfortunately that's been stayed now as a result of criminal proceedings being implemented.

But there's an example where we have an intelligence officer who sticks up his hand and says, 'I think something's going wrong,' and goes to the right authority—the IGIS, in this instance. You've indicated in relation to this bill that IGIS has been given extra resources. But in this instance resources weren't the issue. This person followed through and did exactly what the IGIS suggested that he do, yet we now have a controversy that's developed as a result of the sequence of events. We've had claims about bugging. We've had passports cancelled. We've had people involved in the cancellation of the passport with, at the very least, an apprehended bias. And now we've introduced a piece of legislation into the parliament which expands the scope for operations to be carried out but with no additional oversight mechanisms, as you've suggested.

How do we guarantee or establish a trust with the Australian people as we increase the scope and areas that agencies can operate in, if we're not addressing the oversight of the agencies at the same time? You can see that, in that particular instance, the executive has had a look at all of this. Indeed, the AAT is also an executive arm of government, not a judicial arm. We have a great controversy. I've received advice from the Parliamentary Library as to how East Timor now views Australia as a result of some of these negotiations. You can see it's really important that we have proper oversight of these agencies, yet you're suggesting in this instance that there is no increase. You're increasing the operational space for these agencies but you're not increasing the oversight.