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senate vote 2019-08-01#10

Edited by mackay

on 2019-08-08 13:55:29

Title

  • Bills — Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019; in Committee
  • Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019 - in Committee - Sunset clause

Description

  • <p class="speaker">Catryna Bilyk</p>
  • <p>The committee is considering the Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019 The question is that the amendment moved by Senator Keneally be agreed to.</p>
  • <p class="speaker">Michaelia Cash</p>
  • The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2019-08-01.48.2) introduced by NSW Senator [Kristina Keneally](https://theyvoteforyou.org.au/people/senate/nsw/kristina_keneally) (Labor), which means it failed.
  • Senator Keneally [explained that](https://www.openaustralia.org.au/senate/?gid=2019-08-01.48.2):
  • > *The government are proposing to not act on the requirements put on them by the Parliamentary Joint Committee on Intelligence and Security some 18 months ago, the requests made of them by three Independent National Security Legislation Monitors and, indeed, the evidence given by ASIO to the Parliamentary Joint Committee on Intelligence and Security to repeal questioning and detention warrants and to reform questioning warrants.*
  • >
  • > *[...]*
  • >
  • > *So Labor are moving an amendment to say the government don't need 365 days; they've already had 1,000 days. Our amendment is that the government should have three more months—90 more days—to bring forward the changes that our national security agencies want and need and to repeal a power that has been described by Roger Gyles AO QC as 'odious' and that three Independent National Security Legislation Monitors say has no role in our Australian democracy.*
  • ### Motion text
  • > *Amdt 8713 - Australian Security Intelligence Organisation Amendment (Sunsetting of Special Powers Relating to Terrorism Offences) Bill 2019*
  • >
  • > *(1) Schedule 1, item 1, page 3 (lines 4 and 5), omit the item, substitute:*
  • >
  • > *1 Section 34ZZ*
  • >
  • > *Repeal the section, substitute:*
  • >
  • > *34ZZ Cessation of effect of Division*
  • >
  • >> *(1) This Division (apart from Subdivision C of this Division) ceases to have effect on 7 December 2019.*
  • >>
  • >> *(2) Subdivision C of this Division ceases to have effect on 7 September 2019.*
  • >
  • > *[sunsetting dates]*
  • ### What is the bill's main idea?
  • This bill was introduced to extend the operation of certain special powers relating to suspected terrorism offences to 7 September 2020. Currently, those powers are due to sunset (that is, stop being part of our law) on 7 September 2019.
  • ### What are the special powers?
  • The special powers extended by this bill are the power to issue questioning warrants (QWs) and questioning and detention warrants (QDWs) in relation to suspected terrorism offences. They are extraordinary because they can be issued in relation to someone even though they are not suspected of, or charged with, any offence. In other words, these warrants are an intelligence-gathering and preventative power. Someone might be subject to these warrants because they can provide information about a potential terrorism offence and they may be detained in order to prevent them from damaging evidence or alerting someone involved in a terrorism offence that their actions are being investigated.
  • These powers have been extended several times since they were first introduced in 2002. More information is available in the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1920a/20bd004).
  • <p>Just by way of context, I'm responding to the amendment moved by Senator Keneally. As I've stated, the government is not supporting the amendment. In continuing my comments, the government is developing these reforms in a considered and deliberate way in close consultation with relevant stakeholders, including ASIO and the Office of the Inspector-General of Intelligence and Security. The government will ensure that the reform framework keeps pace with the evolving threat environment and gets the balance right between public safety and strong safeguards. The government will take the time necessary to get this right. The government will give parliament the time it needs to apply due consideration and care in its review of amending legislation. The government is committed to seeking the best outcome to ensure our agencies can keep Australians safe. For these reasons the government will not be supporting these amendments.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Minister, I was just listening to your comments there. One of the clear recommendations of both the Independent National Security Legislation Monitor and, indeed, the PJCIS, which, of course, is very much part of the parliament, has been to repeal the questioning and detention warrants, so this has had lots and lots of consideration. Can you go to the details of why that should be delayed at this point in time, when there is a bipartisan agreement that it should be repealed?</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>Again, the government is carefully considering the legislation as a whole. Once that has been done, it will bring a bill forward for review. But, until then, nothing will be done in isolation.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>It's not unusual and, in fact, Senator Keneally's motion allows for the very simple repealing of that section to be dealt with immediately and gives the government more time to deal with the questioning warrants. I note that this has been sunsetted on a number of occasions. Again, noting the bipartisan nature of the recommendations, which means government members have considered this fully, why won't you support the proposition of the opposition in this instance?</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>As I've stated, and, I think, as the minister has stated on numerous occasions, the current detention powers cannot be repealed in isolation before an alternative mechanism is in place to prevent a person from absconding, destroying things or alerting others to the existence of a warrant. The committee itself, as you are aware, supported an alternative framework to address the significant operational concerns of ASIO, and the committee agreed that, in the security environment, it is essential that agencies have access to a range to effective counterterrorism powers. Repealing detention warrants in isolation is a complex task, and the proposed amendments do not take into account the intertwining safeguards, protections and oversight for both questioning warrants and questioning and detention warrants within the legislation. This is a complex legislative amendment that should not be rushed through the parliament without due consideration.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Thank you for that answer, Minister. Noting that this is a further extension of sunsetting conditions, can you give the Senate some indication of what further resources might be required within the department to enable this to be dealt with in a timely fashion and, indeed, what the government's proposed time frame for introducing this legislation into the parliament might be?</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>I'm advised it is actually not an issue with resources; the department itself is appropriately resourced. Given the complexity of the legislation, it is all about getting the consultation right with the various stakeholders and bodies that need to have input into the legislation.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Noting the time that has already passed, can you give some idea of what the department has been doing in respect of moving towards new legislation? Can you give some indication of where they may be up to in respect of both the questioning warrant related legislation and that relating to questioning and detention warrants?</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>I am advised that the department has had discussions with IGIS and ASIO and has had meetings with interdepartmental agencies.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>I'm wondering if, for example, any drafting instructions have been sent to the drafters on this or is it still too premature for that to have occurred.</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>I'm instructed: yes.</p>
  • <p class="speaker">Kristina Keneally</p>
  • <p>Can I clarify that you've been instructed that drafting instructions have been issued?</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>I'm instructed that there are preliminary drafting instructions.</p>
  • <p class="speaker">Nick McKim</p>
  • <p>The Greens will be supporting this amendment from Senator Keneally. This amendment would repeal section 34ZZ of the bill, which seeks to extend by a further year the sunsetting of part III division 3, special powers relating to terrorism offences, which define and enact questioning and detention warrants. Replacing the bill's sunsetting extension of one more year would be a sunsetting date of 7 September 2019 for subdivision C of division 3 and a sunsetting date of 7 December for the rest of the division. What, in effect, this amendment would do is sunset questioning and detention warrants on 7 September this year and questioning warrants on 7 December.</p>
  • <p>It's worth pointing out again that a Parliamentary Joint Committee on Intelligence and Security report, which found the compulsory detention powers were not necessary to prevent or disrupt a terrorist attack, recommended these powers be repealed after 18 months. These replacement powers should, as recommended by the Independent National Security Legislation Monitor in 2016, follow the model of coercive questioning available under the Australian Crime Commission Act 2002 as closely as possible. That 18-month time frame was to expire on 7 December 2019, as is currently legislated. This amendment would essentially provide the government an extra three months to draft and enact alternative compulsory questioning powers in recognition that the government has clearly made little to no progress on this recommendation. Questioning and detention warrants would sunset first, as these are powers that, according to numerous government inquiries and expert advice, would not and should not be replaced.</p>
  • <p>The Australian Greens have always believed and argued that part III division 3 of the ASIO Act is wholly unjust and unnecessary legislation, which was in fact one of the very early steps this parliament took on what has now been a long, ongoing and regrettable march towards a surveillance and police state in this country. We would prefer to see all of these powers sunset as currently legislated on 7 September this year. However, we will be supporting this amendment, which will sunset the worst of these powers on 7 September, with the rest to sunset by the end of this year, because they make a bad piece of legislation marginally better.</p>
  • <p class="speaker">Rex Patrick</p>
  • <p>Minister&#8212;and you may wish to take this on notice&#8212;if you can provide the dates on which the department met with the organisations that you suggested, or that you said that they met with, and provide the date upon which the drafting instructions were tendered to the drafters, that would be appreciated.</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>I'm happy to take that on notice and have that provided to Senator Patrick.</p>
  • <p class="speaker">Kristina Keneally</p>
  • <p>My question is, noting that the government controls the legislative agenda in the House and in the Senate, given that we are racing against time to get this done before 7 September and this is the last sitting day, why didn't the government move this legislation through the House last sitting week?</p>
  • <p class="speaker">Michaelia Cash</p>
  • <p>My understanding is that the government had other legislation that it needed to deal with last week. As such, it was appropriate to move this legislation this week.</p>
  • <p class="speaker">Carol Brown</p>
  • <p>The question is that the amendment moved by Senator Keneally be agreed to.</p>