Labor is working on a plan to force oversight onto the national security legislation it waved through. By Sophie Morris.

ALP plans to temper Brandis security powers

Shadow attorney-general Mark Dreyfus, at left, with Labor leader Bill Shorten.
Shadow attorney-general Mark Dreyfus, at left, with Labor leader Bill Shorten.

When Labor frontbencher Anthony Albanese broke ranks on counterterrorism laws, it felt a bit as though he was trying to have his cake and eat it too, passing legislation and then immediately conceding it may be flawed.

“I don’t believe there’s been enough scrutiny,” Albanese told Sky News on October 12, referring to laws that had just passed parliament, with his support, including “draconian” jail terms for journalists who breach reporting restrictions on special intelligence operations.

Albanese has since gone quiet on the subject, but his ex post facto outburst reflects a growing concern in the opposition that Labor has been too quick to rubber stamp the government’s counterterrorism laws.

Now some Labor MPs, including shadow attorney-general Mark Dreyfus, want to boost the powers of the Parliamentary Joint Committee on Intelligence and Security to review the operational activities of intelligence agencies, in a bid to reassure the public there are adequate safeguards. Dreyfus says there is a good argument the committee should be given the power to initiate its own inquiries, independent
of government.

“I do think we need to continue to look at the oversight arrangements, particularly when additional powers are being given to security and intelligence agencies,” Dreyfus tells The Saturday Paper. “When you have security and intelligence agencies that, of necessity, do their work secretly, there’s always a particular need to provide assurances to the community.”

He says it is worth looking at Britain’s Intelligence and Security Committee of Parliament, “which has full access to operational information, unlike our intelligence committee, which has no access to operational information”.

At the moment, the committee has a limited role, relating mainly to the administration of intelligence and security agencies, unless the government requests it to consider a particular issue.

Expanding its powers could give it the ability to retrospectively review a wide range of material, including special intelligence operations (SIOs), a new type of covert operation during which intelligence officers are allowed, within limits, to break the law, and journalists and others are forbidden from revealing they have done so – or that such an operation even took place.

Since the provisions enabling SIOs were enacted last month in the first tranche of the government’s terrorism legislation there has been a backlash from legal groups and in the media about the reporting restrictions and how this could leave agencies unaccountable for bungled operations.

The main oversight mechanisms are the Inspector-General of Intelligence and Security, which is recruiting extra staff after struggling with a big workload, and the Independent National Security Legislation Monitor, though this role has been vacant for months.

Intelligence and security agencies may resist any push to make them answerable on operational matters to the intelligence and security committee, and it is unclear whether the government would support it.

As the government and opposition push through major counterterrorism measures in a climate of anxiety about violent jihadists, both parties increasingly rely on the intelligence and security committee to identify any problems with proposed legislation.

The bipartisan approach has effectively sidelined senate scrutiny, despite the best efforts of the Greens’ Scott Ludlam, Liberal Democrat David Leyonhjelm and independent Nick Xenophon, and made the committee the main forum for exploring the detail of counterterrorism bills and revising them before they become law.

The committee’s reports are used by both the Coalition and Labor as evidence that there has been rigorous review of the tradeoffs between privacy, liberty and security as intelligence agencies are handed ever greater surveillance and detention powers.

Given this vital review role, it is significant that the committee’s chairman, Liberal MP Dan Tehan, is publicly urging the government to ensure its consideration of the third round of legislation, relating to metadata retention, is not rushed.

“For the proposed third tranche, we believe we will need more time than we had for the foreign fighters legislation,” he tells The Saturday Paper.

His comment reflects a rebuke contained in the committee’s latest report, on the foreign fighters package. After a snap three-week inquiry, it recommended the legislation be passed, with a series of changes, but said: “The intensive nature of the inquiry and the short time frames placed significant demands on the committee. 

“While the committee recognises and understands that this resulted from exceptional circumstances, it would have been preferable if more time had been available for the inquiry.”

Some Labor MPs believe the committee’s scrutiny of the foreign fighters legislation was hamstrung by opposition leader Bill Shorten’s pre-emptive promise to support the measures.

Given three of the five Labor members of that committee are in shadow cabinet – Tanya Plibersek, Penny Wong and Stephen Conroy – they had little option but to approve the passage of the legislation in the tight time frame that had been proposed by the government and endorsed by Shorten.

The committee is one of parliament’s most important: a sign of this is that its membership must be approved by the prime minister, and includes such veterans as Liberal Philip Ruddock and Labor’s John Faulkner and deputy chairman, Anthony Byrne. Unlike most other committees, its role is outlined in law.

The committee used its report on the foreign fighters legislation to push for an expanded role, although the changes flagged by Dreyfus would go further still. The 36 recommendations included giving it a role in reviewing any decision by the attorney-general to declare a region a no-go zone, as well as any changes to the listing of terrorist organisations and in the future review of preventive detention orders.

Although the government has said it will adopt all the recommendations, it has baulked at one proposal for the committee to take responsibility for oversight of Australian Federal Police counterterrorism activities, which currently fall in the remit of the joint committee on law enforcement.

The foreign fighters legislation is expected to pass parliament next week, opposed only by some crossbenchers. Its controversial elements include the extension of preventive detention and control orders, allowing for detention without charge. 

The former independent national security legislation monitor, Bret Walker, SC, has described these powers as “worse than useless”. Other legal experts have argued there is no rush to extend them, as they are not yet due to expire anyway. 

The committee reduced the period of time for which they will be extended, from the proposed 10 years, recommending they cease within two years of the next federal election.

Even though Shorten has previously pledged Labor will work with the government to pass the foreign fighters legislation, the first signs of cracks in the bipartisan approach to national security are showing.

Some Labor backbenchers are talking about the need for the opposition to challenge the government on its pending plans to require telcos to retain extensive electronic information about customers’ phone calls and activities online. 

The government is yet to detail its metadata retention proposals, but several Labor MPs told The Saturday Paper this raised not just privacy concerns but might also impose unreasonable costs on companies. 

Dreyfus also flags his concerns, saying it is worth noting that European countries seemed to be moving away from metadata retention and the United States was not pursuing it. The British government is scrambling to enact laws after its regime was struck down by the European Court of Justice.

“If the government still believes it is appropriate to require retention of telecommunications data,” Dreyfus says, “it’s for the government to put forward a proposal.”

Prime Minister Tony Abbott thanked Shorten on Wednesday for his “steady and consistent support on national security”.

But implicit in his comments was a warning of the possible political cost should Labor dare to take a different approach.

“We disagree on many things,” Abbott said. “But on national security it is best that the government and the opposition stand shoulder to shoulder together, as we have thus far.”

Battlelines have also been drawn this week in the Coalition over its handling of national security, as Immigration Minister Scott Morrison denied he was seeking to take powers from other ministers, including Agriculture Minister Barnaby Joyce’s responsibility for biosecurity.

Morrison has angered some Coalition frontbenchers, who believe he is pursuing a power grab to take on an expanded counterterrorism role that could also affect the portfolios of foreign affairs, defence and justice. The speculation has been fuelled by the government’s review of security agencies, but Morrison described the reports as “rubbish”.

During a week in which there was an attack on the Canadian parliament and when a 17-year-old Australian boy threatened Abbott in an Islamic State propaganda video, there was also a timely reminder in Canberra that the spectre of terror can trigger a hysterical and counterproductive response. 

On Monday, a senate estimates hearing laid bare the farcical chain of events that led to the imposition on October 2 of an edict requiring the segregation in parliament of women wearing facial coverings, such as the burqa or niqab.

Essentially, a tipster calling themselves Media Manipulator had told talkback radio of an unverified rumour that a lobby group was sending a burqa-clad person into parliament.

This started a Chinese whisper, which within hours resulted in the president of the senate and the speaker of the house of representatives imposing the bizarre rule that those with facial coverings would be confined to a glassed-in area of the parliamentary chambers, normally reserved for schoolchildren.

It was bizarre not just because it was divisive and inflammatory but also because those who enter the chambers have already been through two security checks. The edict was revoked on Monday morning.

The moral of this story surely is that now is the time for cool heads, not panicky responses. And it’s just not good enough to complain of insufficient scrutiny when controversial measures have already been rushed into law. Greater parliamentary oversight of the covert activities of intelligence agencies might provide some reassurance about the exercise of new powers, but it is no substitute for proper debate about the detail of such powers and whether they are justified.

This article was first published in the print edition of The Saturday Paper on October 25, 2014 as "Plans to temper Brandis powers".

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Sophie Morris is The Saturday Paper’s chief political correspondent.

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