24 July 2019

SUBJECT/S: Temporary Exclusion Order legislation, ASIO sunsetting powers.
KIERAN GILBERT: The Temporary Exclusion Order legislation passed the lower house last night. It will pass the Senate today. Earlier this morning I caught up with the Shadow Home Affairs Minister, Kristina Keneally. Kristina Keneally, thanks so much for your time.  The Exclusion Order legislation is now through the House of Representatives. Even though you had some issues with the Parliamentary Joint Committee on Intelligence recommendations not being adopted in totality, are you pleased, though, that this is going to be legislated today? Is it the right course?
KRISTINA KENEALLY, DEPUTY LABOR LEADER IN THE SENATE AND SHADOW MINISTER FOR HOME AFFAIRS: Well, it's right that we have a scheme that manages the return of foreign fighters and that's really what this legislation does. It's called temporary exclusion orders, but what they really do is set the conditions for foreign fighters to return on a certain date and time and on a certain flight and then with the prescribed set of conditions. And it is necessary that we have a scheme like that. The concerns that Labor have is that the Government has rejected the recommendations made by their own Liberal-dominated committee to improve and amend this legislation to ensure that it is one that works, that keeps Australians safe, and that is constitutional.
GILBERT: But they've adopted 16 of 18 recommendations and…
KENEALLY: Well they say that...
GILBERT: And they're looking at the other two, as part of constant review of that legislation.
KENEALLY: Well they say that they've adopted 16 and 18. I would contend they've rejected four outright. They've only adopted six in part and they've ignored entirely the call to produce Solicitor-General's advice to show that the bill is constitutional. And what Labor is seeking to do in the Parliament is to make clear the Government's rejecting its own Liberal members. Andrew Hastie, Amanda Stoker, Julian Leeser, Jason Wood signed up to these recommendations; the Government is rejecting them.
GILBERT: But Labor did the same thing in 2013 with the Telecommunications Interception Bill. So when you were last in government, Labor didn't always accept the recommendations of this particular committee. It's not like it's set in stone when it's a recommendation.
KENEALLY: That is true. But what the Government should do is come back to the committee and explain why it's rejecting its recommendations; work with the committee. I think in a couple cases, the Government perhaps has misunderstood the recommendations that the committee has made. And the importance of this committee, this Parliamentary Joint Committee on Intelligence and Security is it is an iterative process. It works unlike any other committee in the Parliament where there is a genuine give and take. It's not always on a partisan basis and it seeks to amend and improve national security legislation, so that we have a bipartisan approach to it. The Government seems to be breaking up that compact. The Government seems intent on blowing up here the Parliamentary Joint Committee on Intelligence and Security and setting a new course for managing national security legislation, which is their way or the highway. And I think that's a dangerous step.
GILBERT: The chair of the committee seemed quite relaxed with the outcome. Andrew Hastie, you referred to him earlier, he seems quite relaxed with the outcome.
KENEALLY: He's not acting as chair of the committee, because as chair of the committee he should stand behind the committee's recommendations or if the Government is opposing those, seek to bring the Government back to the committee to explain themselves and to work with the committee. That's what the chair should be doing.
GILBERT: The Minister's decision should be the fundamental arbiter, shouldn't it, in terms of whether or not a Government is required to keep Australians safe? It shouldn't be outsourced to a retired judge to make a decision, should it?
KENEALLY: Well in the UK scheme, which Peter Dutton so frequently refers to, and says that this legislation is modelled on, in fact, it is the judge that makes that decision. And so again, this is one of those cases where the Government may have that view, but they haven't come back to work with the committee to explain why they've disregarded the committee's recommendation.
GILBERT: You don't think it would undermine the intent of the bill, if you don't, if you take it out of the hands of the Government put it in the hands of a retired judge?
KENEALLY: Well the United Kingdom doesn't seem to think that that is the case. They have had this legislation in place for four years. We have no evidence that the United Kingdom has found this to be some type of challenge to how the scheme operates. And in fact, there are legitimate questions raised by the Law Council and others as to whether or not this process that the Minister has designed, independent of any recommendation from the PJCIS, would actually be constitutional in and of itself. So there are some legitimate questions, some serious questions, and it's right to raise these not because we want to be partisan, not because we don't want to see this bill passed or we're trying to delay it. But in fact, because we want a bill that works. Kieran it is no good if we pass legislation on this fundamentally important matter about ensuring the safe management of these foreign fighters - who I acknowledge do pose a threat- but if that bill is found to be unconstitutional, what's the point of it?
GILBERT: But it's still going, is it not still going to a ""reviewing authority"" any decision made? So it's still got some judicial oversight?
KENEALLY: There is some and again, this is a...
GILBERT: Isn't that enough?
KENEALLY: This is a matter, well, this is a matter of the PJCIS has never considered. This is a matter that has been put out there. It wasn't in the original bill. It wasn't in the PJCIS recommendations. It is an entirely new process, that there are concerns and questions raised by the Law Council and others as to whether or not this process that Government has just put out there is in and of itself constitutional.
GILBERT: When you look at the foreign fighters, how many do you understand would be subject to this particular law? How many are still, combatants, you know, are in a foreign country?
KENEALLY: Well this is a question that, really ultimately, the Government needs to answer. And they have been incredibly vague in public in defining the group of people that they, that these, TEOs could be used against. However, they have put out public a number of 80. It is my understanding that of that 80, there is a significant proportion of them that are children. That of that 80 there is a small number of men, and a small number of women.
GILBERT: Twelve? Is that the number?
KENEALLY: My understanding, and that has been put out there publicly, that there are about a dozen men that they are currently in prison, in Kurdish prisons. That there is a group of women, around 20, that are in the camps, and that there is a large number of children. Now it is possible, there are a few people, adults, and the Government has not been clear on this in public - and it's up for them to explain - that are in places that we don't know. Now, some of them may well be dead. Others of them may have gone to third countries and have no desire to return to Australia.
GILBERT: Women would still be applicable to this particular law.
KENEALLY: Yes and some women who have been taken over to the so called ""caliphate"", to Iraq and Syria, were taken there against their wishes and are genuine victims. Others either went willingly or have been radicalised while they are there. And yes, it is important, that we have a scheme in place and that's what this scheme is. It's not to exclude people for two years, in order to keep everyone here safe for the next two years.
GILBERT: It's to check them.
KENEALLY: It is really to say you can't come back until we have a process in place to manage your return. And that is a perfectly appropriate and necessary thing. I would point out...
GILBERT: But the others are in, as you said, a dozen or so, as we understand it from the information that's emerged the last couple of days, are in Kurdish prisons. Therefore, they're in detention anyway, they're not going to cause problems right now.
KENEALLY: That is correct. And the people in the camps, in fact, would also find it very hard to leave without agreement of the Australian authorities anyway. But those camps could break down. The Kurdish authorities are urging Western countries to take their prisoners back to put them on trial or detention in their home countries.
GILBERT: Is it safe for our service personnel to extract those individuals.
KENEALLY: Again, this is a question for the Government to answer. But I know...
GILBERT: They say they're not going to do it, because they don't want to put our servicemen and women in harm's way.
KENEALLY: I know from talking to NGOs, who are over there in the camps working, that they're able to go in. We know that Karen Nettleton was able to go in to those camps to see the Sharrouf, her grandchildren, the Sharrouf children. You know, there are aid agencies in there. You know, I don't want us to see any of our servicemen and women in harm's way. But I also think we need to bear in mind, there are quite a high number of children, a significant number under five, and they are Australians. And to the extent that we can use this TEO scheme to ensure their safe retrieval and return home, that would be a good thing.
GILBERT: Do you feel that the Government has been trying to wedge Labor on this issue or have they been acting in good faith?
KENEALLY: I would say the Government has sought to blow up the compact of the Parliamentary Joint Committee on Intelligence and Security, if you will. This is the beginning, unfortunately, of a fracturing of the compact of that committee. A committee that has worked very well, and unlike any other community has produced bipartisan recommendations that have improved every piece of national security legislation. Now, if the Government is intent on disregarding the recommendations and not working with the committee, it may be that some of the Government's recommended changes are sensible. It may be that in some cases, they've misunderstood the committee's recommendations, and we need to have a conversation with them. All of that has been thrown out the window, and that it does, I believe, pose a risk to the good functioning of that committee into the future. And it's unfortunate, because I think it's been a great benefit to Australian security agencies and to Australians generally.
GILBERT: The one last issue I want to ask you about still relevant to your portfolio is the ASIO questioning warrant or questioning and detention warrant. There was a sunset that was put in place to this particular power for ASIO. It's going to expire in September. Can you give us an update on where this is at and is it going to be renewed that particular power?
KENEALLY: So these are questioning warrants or questioning and detention warrants. They were put in place after September 11. They have been rarely used. Questioning detention warrant has never been used; Questioning warrants been used, I think the last time was 2010.
GILBERT: And it's for ASIO.
KENEALLY: It's for ASIO. Now, we've had the PJCIS 18 months ago said repeal questioning detention warrant and reformulate questioning warrant.
GILBERT: What's wrong with it?
KENEALLY: Well questioning detention warrant is an extraordinary power that's never been used and, is really, three national security legislation monitors, ASIO itself, says we don't need this power, is it's not necessary. Questioning warrant is the power that ASIO wants reformulated. Again, PJCIS 18 months ago said reformulate it. It's one that, in fact, ASIO wants these powers changed.
GILBERT: So why is it being renewed then?
KENEALLY: Well, Peter Dutton wants to renew it. It's a serious question as to why Peter Dutton in his administration of the Home Affairs portfolio has not managed to produce what would be a very simple piece of legislation that would do the things that ASIO wants; that would do the things that PJCIS under Andrew Hastie recommended. So he wants to kick the can off for another 12 months. Labor is proposing an amendment to say you can have an extension but for three months only because really, you've had 18 months to get this right. PJCIS, the Joint Committee on Intelligence and Security, the ASIO, and three Independent National Security Legislation ?Monitors have said ""fix this, it's a simple fix, do it."" I don't know why he needs another 12 months.
GILBERT: So three months to fix it. You say it's simple, but why wouldn't you demand that it be fixed before it's renewed?
KENEALLY: Well, it's getting renewed in September. We're only a few weeks away. I would say three months gives them enough time to draft it. If they want to put it before the PJCIS they could.
GILBERT: But it's basically make it fit for purpose of this warrant for ASIO questioning.
KENEALLY: Exactly.
GILBERT: Okay. Thanks for your time Shadow Home Affairs Minister Kristina Keneally.