Mr DREYFUS (Isaacs—Deputy Manager of Opposition Business) (12:05): I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) notes that:

(a) the Government has failed to implement in full at least 10 recommendations of the bipartisan Parliamentary Joint Committee on Intelligence and Security, without explanation;

(b) this is the first time since 2013 that this Government has ever openly rejected recommendations of the bipartisan committee; and

(c) this rejection constitutes a significant breach of the compact between the Opposition and the Government on national security bills, which is premised on an understanding that the recommendations of the bipartisan committee are to be respected and implemented; and

(2) is of the view that:

(a) it is not the job of this Parliament to act as a rubber stamp for Government bills; the Parliament's job is to get legislation right;

(b) this bill should therefore be amended so that it conforms faithfully to the detailed recommendations of the bipartisan Parliamentary Joint Committee on Intelligence and Security; and

(c) this bill should be referred back to the bipartisan Parliamentary Joint Committee on Intelligence and Security for further scrutiny".

When the Hawke government introduced legislation in 1986 to establish the first parliamentary committee to oversee Australia's intelligence services, the then Deputy Leader of the Liberal Party expressed outrage. He declared that the then Labor government's modest proposal for parliamentary oversight gave one:

… very grave doubt about whether they are loyal to this country.

Seriously! The National Party MP Peter McGauran, who would go on to become a cabinet minister in the Howard government, called the Hawke government traitors during the same debate. Some things never change. In relation to the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Senator Mathias Cormann told reporters yesterday:

The Labor Party needs to decide which side they're on. The Australian government, we are on the side of keeping Australians safe.

This Prime Minister backed those comments. I need to make a few things clear. When Labor stands up for parliamentary oversight and scrutiny of legislation to ensure that laws operate as intended, do not result in unintended and undesirable consequences and are subject to proper safeguards, the Liberals resort to cheap smears and questioning of allegiance.

The parliamentary committee established by the Hawke government in 1986 is now called the Parliamentary Joint Committee on Intelligence and Security. A lot has changed since then. The Liberals have liked to say that they respect the role of the Parliamentary Joint Committee on Intelligence and Security. And, in fact, up until the end of last year, I think it was fair to say that the Liberals lived up to what they say they like to do, which is to respect the recommendations of the Parliamentary Joint Committee on Intelligence and Security on which, of course, they have a majority. There are 11 members of the Parliamentary Joint Committee on Intelligence and Security—five senators and six members of the House of Representatives—and six of the members of the committee are from the government. It's a government controlled committee. And consistent with that, up until the end of, really, 2018, when we got into difficulty over the assistance and access bill, this Liberal government, now in it's third term, has not openly rejected a single one of the committee's recommendations to improve national security bills.

When they failed to implement all of the recommendations of the committee, in relation to the assistance and access bill, in December of 2018 the Prime Minister and the Minister for Home Affairs—perhaps because of their repeated claim that they liked to respect the recommendations of the Parliamentary Joint Committee on Intelligence and Security—felt compelled to at least pretend on that occasion that they had fully implemented all of the committee's recommendations, and they haven't stopped pretending completely.

On this bill, the Minister for Home Affairs has made the claim—it's a false claim but it's his claim—that the government has only rejected two of the committee's recommendations in relation to this bill. That's what he said in his largely misleading second reading speech given on 4 July in respect of this bill. It's regrettable that the minister has chosen to simply gloss over the very detailed work that what was done by the Parliamentary Joint Committee on Intelligence and Security, detailed work that was done at the urging of the government in a great hurry, because although this bill is claimed by the government to be modelled on an English piece of legislation, that English piece of legislation was passed in 2015. This government announced that it was going to do this legislation late last year. They finally got around to bringing legislation into the House in February. They insisted the parliamentary joint committee conduct urgent hearings and provide an urgent report, which the committee did. The committee worked hard together in its bipartisan fashion, as the committee has done for so long, to produce 19 recommendations, the 19th of which was that the bill be passed. But, regrettably, of the 18 remaining recommendations, in the first sitting fortnight of this 46th Parliament we have this Prime Minister proposing to reject 10, and possibly 11, bipartisan recommendations that related to this bill.

It doesn't actually stop with this bill. Just to mention it, on a separate bill that we are going to be debating during this sitting fortnight, which is the sunsetting of special powers relating to terrorism offences bill, the Prime Minister's proposing there to reject two bipartisan recommendations of the Parliamentary Joint Committee on Intelligence and Security.

With a wave of the hand we've had the Prime Minister and his Minister for Home Affairs breaching the compact that has existed for so many years between the coalition and Labor on national security legislation, which is based on the understanding that the recommendations of the committee are to be respected and implemented. This is no small thing that the government is doing in breaching this compact.

The national interest is served by this committee working to achieve bipartisan recommendations. The national interest is served by this committee working in a bipartisan fashion, because when that occurs it builds the confidence of the Australian community that the national security laws, which is being passed in this place—many of which provide extraordinary powers for our agencies and many of which permit our agencies to act in secret on our behalf—are good laws, are appropriate laws and are laws that are truly going to work in the national interest.

Before continuing, I'd like to say a little bit more about the way in which the government has sought to frame this debate and the techniques that they've employed to do it. Techniques that include the impugning of the motives of anyone who disagrees with them, and misleading journalists and misleading the Australian people about what the bill does, who it would apply to and why it's needed.

In his eulogy to Bob Hawke, delivered recently, the Prime Minister of Australia declared:

… we will rightly honour his many achievements for our economy, for our security, for Indigenous Australians, for our society, and Australia's place in the world.

And as a Liberal, I'm honoured to acknowledge these achievements, as I know others would be.

But if the Prime Minister, who lauded Hawke's many achievements for the security of Australia, had been in the parliament in 1986 would he have joined his Liberal colleagues to ask Bob Hawke whose side he was on?

As Prime Minister, Bob Hawke understood the need to keep this nation safe. Labor, to this day, understands the need to keep this nation safe. Bob Hawke understood that in a democracy the job of parliament is not to act as a rubber stamp for government bills. The job of this parliament is to scrutinise legislation. The job of this parliament is to debate legislation. The job of this parliament is to improve legislation which is brought to it by the government. That understanding did not make Bob Hawke weak. It made him strong and it made Australia strong.

This government seems to have completely lost its way in understanding what the role of this parliament is and what the role of parliamentary committees is. I hope that those on the other side, the Liberal members of the House of Representatives who are members of the Parliamentary Joint Committee on Intelligence and Security—one of whom, the member for Berowra, is present in the chamber right now—will understand that it's incumbent on them to back in the recommendations that they made to the parliament. And when they have agreed, in unanimous recommendations—and we have there also the chair of the committee, the member for Canning, Mr Hastie—when they have signed up to those recommendations, I am expecting to hear from them in this debate that they back in the recommendations that they made not two years ago, not one year ago, but in April of this year.

The government has come in. The Minister for Home Affairs has read an extraordinary short second reading speech. He hasn't explained why it is that the government is ignoring the recommendations of the committee. He's put forward no evidence to this parliament, let alone agreed for the matter to go back to the committee, which is what should happen. The minister has put nothing before the parliament as to why these recommendations—all 11 of them—that the government is ignoring should be ignored, disagreed with or changed to something quite different. Make no mistake, the bill that's before this parliament is a very different bill to the bill that was brought to the parliament in February and examined by the Parliamentary Joint Committee on Intelligence and Security. And it's not a different bill because the government has chosen to accept the recommendations of the committee; it's a different bill because the government wants to make it different, for reasons that it is choosing not to explain to this parliament and to the people of Australia.

This Liberal Party, including the so-called constitutional conservatives in their ranks, appear to be unable to grasp basic principles about the functioning of this parliament and the functioning of the Parliamentary Joint Committee on Intelligence and Security. You would think that the very least this incompetent Minister for Home Affairs might think he should do when coming to the parliament with a bill that is different from the bill that was brought in in February would be to deign to explain to the parliament why it's different, perhaps in an attempt to at least convince his own members—the Liberal members of the House of Representatives who are members of the parliamentary joint committee—as to why the bill, in the form in which he's bringing it to the parliament, should be supported. But instead of engaging in argument, instead of playing the proper role that a minister of the crown should be playing in this place, we see this Prime Minister and all of his ministerial colleagues resorting to the same cheap smears about patriotism and loyalty to this country.

There is a very long and very sorry history of accusations of treason or disloyalty being thrown about for base political purposes, and worse. I have in mind authoritarian governments around the world that throw those accusations around. By going down that path, this government is aping a political technique that's been used by some of the worst regimes in history.

It's a sorry day that this Liberal Party has come to—that they will behave in the way that they are choosing to behave on this bill. And I say to the Prime Minister: 'You, Prime Minister, need to stop it. You need to tell your ministers to stop it. You need to remember that you are governing for Australia, governing for the Australian people and not constantly looking just to score a cheap headline.' That's all we've seen from this Prime Minister since the day that he was elected Prime Minister by the Liberal Party. We've certainly seen no change from looking to score cheap political points and looking for the cheap headline. They are seeking to say all the time, not that they are governing for Australia, not that legislation is being brought in because it is in the national interest but that the legislation presents a test for Labor. That is no way to use the processes of this parliament. This parliament is not set up to provide a test for the political opposition of Australia and it's not set up to provide a test for Labor; it's set up so that this parliament can bring into law legislation that is actually in the national interest, and that's what we expect to hear from this government.

When Labor was last in government, we kept Australians safe. There was not a single death due to an Islamist-inspired terrorist attack in Australia during Labor's six years in office, between 2007 and 2013. By contrast, seven Australians have lost their lives to terrorist attacks on Australian soil in the six years since the coalition came to power. If those lives had been lost under a Labor government, I have no doubt that this incompetent Minister for Home Affairs would say that the blood of those Australians was on my hands or on my colleagues' hands. Regrettably, from his conduct I have little doubt that the Prime Minister would stand behind his Minister for Home Affairs. But Labor does not engage in that damaging rhetoric. I will not engage in that sort of rhetoric now, because all of us in this parliament love Australia. All of us in this parliament want Australians to be safe and secure, all of us want to see Australians prosper, and none of us want to see Australia lose its character as a confident, free and democratic country. Let's have no more talk that suggests anything other than that sentiment—the belief, the feeling of every single member of this parliament.

The debate over this bill, and over every other national security bill that comes to be debated in this place, is not, and it never is, a debate over 'Whose side are you on?' It's a debate about how: how do we ensure that our agencies have the powers they need to keep Australians safe; how do we ensure that the powers that we are choosing to give to our agencies will not be abused or misapplied; how do we balance Australia's national security with the need to uphold the rule of law and the rights and freedoms that define us as a democratic nation? Labor's concerns with this bill—the form in which it was brought to the parliament by the Minister for Home Affairs on 4 July—are about how. We are concerned that this bill may be unconstitutional. The government has done nothing to address those concerns. I pause on that for a moment. In the additional comments that Labor members made in the report of the Parliamentary Joint Committee on Intelligence and Security—and it's rare for Labor members to make additional comments; usually the reports are simply unanimous reports and there's no additional comment, unlike in many reports of committees of the Senate—was this:

While we have ultimately decided to recommend that this Bill be passed (with amendments), Labor members are concerned that a number of issues have not been adequately scrutinised by this Committee in the limited time available.

Most fundamentally, Labor members note that the President of the Law Council of Australia, Arthur Moses SC, and Professor Helen Irving (among others) have stated that the Bill is unconstitutional on the basis that it infringes the constitutional right of abode. Neither the Department of Home Affairs nor any other government representative has sought to engage with - or has disagreed with - the arguments put forward by Mr Moses or Professor Irving.

Clearly, Australians are not made safer by laws found to be unconstitutional. The Committee has sought to address the constitutional concerns that have been raised by submitters by recommending that the government obtain legal advice from the Solicitor-General (or equivalent) on the constitutional validity of the final form of the Bill. Labor members of the Committee do not believe this recommendation goes far enough.

The reason for that is that this government has form for misleading the committee, for misleading the parliament and for misleading the people of Australia about the constitutionality of an earlier national security bill. We know that because the former Solicitor-General, Justin Gleeson SC, said so in a Senate committee inquiry hearing. He explained that the former Attorney-General, Senator Brandis, had misled the committee, this parliament and the public of Australia as to his own—that is, Mr Gleeson's—advice about the constitutionality of a particular piece of legislation.

It's not good enough for the government to simply assert, 'Nothing to see here' or 'No problems here.' Cogent arguments have been put forward in public by eminent constitutional lawyers. This government owes it to the parliament to explain why this bill is in fact constitutional. Up until now, it has done nothing of the kind.

We are concerned that the bill as presented to parliament contains basic drafting errors. That was so in respect of the bill the committee reported on in April. The government has refused to fix those basic drafting errors. We are concerned that the government has released at least 10 and probably 11 recommendations of the Intelligence and Security Committee without any explanation, because nothing in the second reading speech—the short second reading speech—that was made to this place by the Minister for Home Affairs on 4 July goes even close to explaining why the government has rejected these recommendations.

We are concerned that the government is falsely claiming that it is rejecting only two recommendations of the committee, as if to minimise the significance of the government's breach of bipartisanship on national security. I hope we are going to hear from all three of the Liberal members of the committee who unanimously voted for the recommendations the committee made on a bipartisan basis. I hope we're going to hear from all of them. I see that the member for Berowra is next in line. No doubt he's going to be telling this parliament that he intends to cross the floor to support the amendments we have foreshadowed. I see the minister's adviser looking anxiously from the box towards the member for Berowra, perhaps worrying that he might in fact cross the floor to keep faith with the recommendations he made as a member of the committee! And he has to, because he wanted the bill to be amended in the fashion the committee set out in its report, and it'll be very disappointing if we don't hear support from the member for Berowra as to why the government has got this wrong.

We are concerned that in an effort to avoid debate on the very considerable merits of the committee's recommendations the government has resorted to misleading journalists and the Australian people about what the bill does, who it would apply to and why it's needed. Our overriding concern is that the government is more interested in playing politics with the national security of Australia than it is in getting national security laws right. And let's be clear—I need to state it again—Labor supports the intent of this bill; we want to work with the government to get this bill right.

The amendments I'll be moving in respect of the temporary exclusion orders bill and the temporary exclusion orders (consequential amendments) bill will ensure that the bill conforms to the unanimous and bipartisan recommendations of the Labor and government members of the intelligence committee—no more, no less. But we don't pretend that our amendments address every concern that's been raised about this bill. For instance, it's been increasingly suggested that the use of the powers in the bill could in some circumstances actually increase the likelihood of innocent Australians being the target of terrorist attacks overseas. Clearly a suspected terrorist who has freedom of movement in a foreign country will pose a much greater danger to innocent Australians than the same person would pose to Australians from a prison cell at home. We've seen numerous examples during the time that the caliphate was ruling over Raqqa province in Syria. We've seen numerous examples of Australian nationals broadcasting messages to Australians at home, from Raqqa, in an endeavour to recruit them to the Islamist cause, to the cause of ISIL.

One could want no better example than the recruiting activities of Neil Prakash. He is an Australian who served in the forces of ISIL and who is now languishing in a Turkish jail. He is the subject of an extradition request by Australia which, I would hope, will again be activated when Mr Prakash has served the prison term that's been imposed on him by a Turkish court. We can find no better example than the activities of Mr Prakash. He has broadcast to Australians using, in particular, social media and other resources of the internet to endeavour to recruit them to carry out acts of terror here in Australia or to travel and join him in the service of Islamic State in Raqqa province. Happily, that's a regime that has now come to an end.

The government really needs to consider that these bills, if the provisions contained in them become law, create only a discretionary set of powers. I would be urging the government, and Labor would be urging the government, to ensure that if these powers do become part of Australian law they are used sparingly. I need hardly remind the government and this parliament that the greatest loss of Australian lives in a terrorist attack did not happen on Australian soil but in Bali. Many more Australian lives have been lost to terrorism overseas than on our shores. That's why we've had the call from our great ally the United States of America through its secretary of state Mike Pompeo. He has called on all countries of the world who have nationals in camps in Syria or detention centres that are maintained in Syria to take their nationals back.

We in Labor accept the need for a power, in some form, to enable the management of what now appears to be a very small number of Australians who are seeking to return to Australia after having engaged in terrorist acts overseas—Australians who have fought with ISIL, Australians who have put themselves at the service of the caliphate and engaged in terrorism there. It's apparent from Mike Pompeo's words and from those of other officials of the United States government, and from officials of the Kurdish regime, that they want countries to take their nationals back. They are concerned about the impact of those people who have been engaged in terrorism and continue to be at large posing a threat not only to Australians overseas but also, potentially, still, to Australians here in Australia—and to all peoples of the world—if they are not brought under control, if they are not brought back and charged with the criminal offences that, under our law, they committed in Raqqa, in the service of the caliphate. That's primarily what ought to happen.

At the moment, regrettably, the government's bill does not even require the minister to turn his mind to the risks posed to innocent Australians overseas. That's one of the reasons why we are asking for this bill to be referred back to the intelligence and security committee for further scrutiny. It's one of the reasons the Prime Minister should agree to this request, that the bill be referred back to the committee.

Labor is focused on working towards a bill that will withstand constitutional challenge, a bill that is subject to appropriate safeguards and oversight and a bill that does what it intends to do—that is, keep Australians safe. We ask the government to abandon the cheap politics, to start acting like a government that governs in the national interest and to join us in this endeavour.

The DEPUTY SPEAKER ( Mr Rob Mitchell ): Is the amendment seconded?

Mr Bowen: I second the amendment and I reserve my right to speak.

Mr LEESER (Berowra) (12:35): I'm speaking in favour of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 as presented by the minister and against the amendment that was presented to us by the member for Isaacs. As the member for Isaacs pointed out, I do serve on the Parliamentary Joint Committee on Intelligence and Security, and he is right: it is a very important committee of the parliament. But what makes it a very important committee of the parliament is the subject matter that it deals with. It deals with national security. It deals with highly sensitive issues. The committee gets top secret briefings. It holds its hearings in camera as well as in public, and we seek, as every committee in this parliament does, to analyse and scrutinise bills.

I've spoken on many occasions in favour of the good work that the committee does. But the Parliamentary Joint Committee on Intelligence and Security is, like every other parliamentary committee in this place, a committee. It is subordinate to this parliament. It can make recommendations that can be accepted in toto, accepted in part or rejected. I've sat on plenty of committees where reports have come up and they've been accepted in part, as is the case with this particular set of legislation, on other committees where reports have been rejected and on other committees where they've been accepted in toto. I've seen Labor members sit on committees which have had recommendations accepted in part, and they have subsequently voted for the legislation. The committee discharged its function here by examining the bill. It was a matter for the government to determine what it wanted to put before this House, and the government determined the matters it wanted to put before the House. I support the bill as presented by the government.

I would like to make some broad comments in relation to the bill. In September 2014, Australia's national terrorism threat level was raised for the first time since 2002. This public alert system has since sat at high, denoting that a terrorist attack is likely. The threat of terrorism in this country is clear and tangible. Over the five years that have followed, our security, intelligence and law enforcement agencies have disrupted 16 attempted terrorist attacks in this country. The most recent was on 3 July when three men were arrested in Sydney over their planned hostilities in connection with ISIL.

On the one hand, this is a figure to be applauded. It's the product of thousands of dedicated officers, agents and intelligence experts working around the clock to keep Australians safe. It's the product of a more than $3 billion increase in security funding that our government has secured since 2014. This year we've provided the AFP with an additional $512 million for counterterrorism and combatting transnational crime. On the other hand, this figure is deeply alarming. The indiscriminate threat of terrorism creates fear. Protecting all Australians from people who seek to harm us must be, and indeed is, our government's most critical task. These bills are essential to achieving this. They are time-critical additions to our existing matrix of national security laws.

Since 2012, we have seen close to 230 Australian citizens travel to Syria and Iraq to engage directly with and assist extremist organisations. Approximately 80 of these citizens are still active in conflict zones. Many of the fighters have taken their families, partners and children with them, and they've been given a chance to learn, as the Minister for Home Affairs has put it, the art of terrorism. They have been given the chance to undertake violent offences against Australian troops. They've been given the chance to support the extremist groups with resources and knowledge. They've been given the chance to learn how to construct improvised explosive devices, or IEDs. Now, with the collapse of Islamic State's territorial control, these people are in a position where they want to return home to Australia. Media reports suggest that many have returned home and others will be seeking to return home in the near future.

Although many of these people are of counterterrorism interest, under article 12.4 of the International Covenant on Civil and Political Rights, it is their right, as Australian citizens, to return to Australia. The proposed TEO scheme doesn't arbitrarily deprive these people of the right to abode. Instead, it necessarily gives the government an effective means to monitor and regulate the return of these fighters, keeping the protection of our Australian community a paramount consideration. These changes are sensible and deserving of bipartisan support. Likewise, the scheme's orders are subject to reviewing authorities. In accordance with international covenants which Australia has ratified, it also has specific provisions which consider the best interests of children directly or indirectly implicated in these extremist activities.

Since it was introduced in the last parliament on 21 February, the TEO scheme has been amended to include some of the recommendations of the Parliamentary Joint Committee on Intelligence and Security. As a member of that committee, let me state again, as the chair has done, that I too am satisfied with the government's response to that report. The government is not bound to accept all the recommendations of the PJCIS, as it is not bound to accept the recommendations of any committee. As my colleague, the member for Canning has stated, the most significant compromise is over judicial review. The government has accepted that and, on that basis, I think we can move forward as a parliament and pass the bill.

A temporary exclusion order allows the Minister for Home Affairs to delay the entry of an Australian citizen of heightened terrorism risk for up to two years without a return permit. Consistent with division 104 of the Criminal Code, the person must be at least 14 years of age. This ministerial discretion is not unfettered. The minister may issue a TEO if our Australian security agencies have assessed the person as a direct or indirect risk for reasons relating to politically motivated violence and have advised the minister therein or if the minister suspects on reasonable ground that a TEO would substantially assist in preventing a terrorist attack, preventing a person from being trained by a terrorist organisation and/or preventing a person from assisting a terrorist attack or terrorist organisations.

The mutually exclusive nature of these two circumstances is crucial. Fighters are seeking to return home from overseas conflict zones. These threats are in a constant state of flux. The highly nuanced case-specific challenges posed, and the relay of information between Australia's security agencies and the Department of Home Affairs, is such that the minister must act urgently as soon as a threat becomes apparent.

Reviewing authorities provide a safeguard for the exercise of the minister's powers. Under the scheme, TEOs don't come into force until a reviewing authority has assessed the legality—as opposed to the merits—of the minister's decision to issue the order. This authority, being a retired judge or a senior member of the Administrative Appeals Tribunal, is independent, providing additional accountability in the scheme. Judicial review will also be available through the Federal Court or the High Court of Australia. If the reviewing authority determines the minister's decision to be unlawful, the TEO will be taken never to have been made. The authority will have access to all information that is in the public interest. However, if insufficient information is provided, it remains open to the reviewing authority to potentially overturn the TEO. This enables the independent authority to reach a well-informed decision while still protecting the sensitivity of Australia's information sources and defence capabilities.

Conversely, the scheme also confers power on the minister to issue a TEO that can come into force immediately. This is vital for situations such as when the return of a high-risk individual is imminent and the minister has just been made aware of that fact. Temporarily delaying return is justified by the urgency of such cases. It is important to note that this decision is still subject to the ordinary reviewing authority process. The TEO can still be struck down at any hour—a day or a week later, for example. However, this simply adds an additional temporary layer of security—a proactive rather than reactive way of mitigating risk in the interim.

One of the greatest tragedies of the Australians who have fought or assisted terrorist groups in Iraq is that some took their families with them or had children while in the service of ISIL. We know that children are vulnerable. By immersing children in ISIL conflict zones, they too may have been given the chance to learn the art of terrorism. They may, as well, bear an increased risk of harbouring radical thoughts. These are the same children who, on application, will return to Australia. Without adequate monitoring, they may put the lives of other Australian children at risk.

However, it is appropriate to balance this concern with the best interests of each child. The TEO scheme reflects this. TEOs cannot apply to a person under the age of 14. If the person is aged between 14 and 17, the minister must regard both the protection of the community and the best interests of the child. But the protection of the community is paramount. Section 10(4) includes additional safeguards. It provides that the age, maturity, culture, lifestyle and physical and mental health of a 14- to 17-year-old, the benefit of them meaningfully connecting with their family, their right to education and their right to practise their religion, among other factors, must be taken into account by the minister when issuing a TEO. This is an effective, sensible balance between a child's vulnerability, Australia's international obligations and vital community protections.

Under the scheme, to enter Australia while the TEO is in force would be a criminal offence punishable by up to two years imprisonment. Facilitating the entry into Australia of a person who has a TEO issued against them may also incur the same penalty. This second offence requires the owner or operator of a vessel or aircraft to have actual knowledge that the individual is subject to a TEO that prohibits them from returning to Australia.

Both these new offences are essential components of the TEO scheme's enforceability. They acknowledge that those returning from their suspended extremist engagements in Syria and Iraq will be subject to the full force of Australian law, should they be in a position to return to this country. These provisions aid in ensuring TEOs are complied with, delaying the passage of foreign fighters so that Australian security agencies have time to conduct their investigations and appropriate conditions can be implemented to keep other Australians safe.

The TEO scheme stands in contrast to control orders. A control order is issued by the courts on consent of the Minister for Home Affairs. It enables the liberty of an individual to be restricted if it substantially helps prevent terrorist attack, or if the individual is trained in, engaged in or convicted of terrorism. The individual can, for example, be prevented from leaving Australia, being in certain areas, communicating with certain people, owning certain items, accessing forms of technology and carrying out certain activities, and they may be required to wear a tracking device.

The TEO scheme has a starkly different function. Its aim is the regulation of these persons of counterterrorism interest that are Australian citizens seeking to return to the country. In areas of active conflict, to compile sufficient evidence for criminal prosecution can be difficult, so most of these individuals have not yet been convicted and are still subject to further investigation and assessment. To reflect this, the second part of the TEO scheme provides for the issuance of return permits and attached conditions.

A return permit must be issued on application of an Australian citizen to the minister, or where the Australian citizen has been deported or extradited to Australia. The minister has discretion to issue a return permit if he or she otherwise considers it appropriate to do so under section 15(2). For example, if there was a natural disaster in Iraq or Syria and the fighter was unable to submit an application, the minister may find it appropriate to issue a return permit so as to evacuate the person to safety. This discretion favourably allows the unique circumstances of each case to be considered.

Similar to a statement of claim, a return permit must be served personally on the person to whom the order relates, or a parent or guardian if the person is between 14 and 17 years old. However, recognising the irrationality of personal service in an active conflict zone, the minister must only comply with the personal service requirement where it's reasonably practical to do so.

Return permits have two main strengths. First, much like division 3 of the Bail Act 2013, section 16 of the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 provides for an exhaustive list of conditions that can be attached to return permits. Pre-entry and post-entry conditions are available. Second, a return permit may specify a certain time frame in which a person must return to Australia, delaying their passage by a time reasonably necessary to assess the risk posed by their entry. This delay, however, cannot be for more than 12 months, so, whether a return permit or temporary exclusion order is in force, our communities will remain protected.

At the same time, section 16(8) necessitates that the minister must consider whether the person has a lawful right to remain in the country and whether they are at risk of detention, mistreatment or harm before preventing a person from entering Australia. Post-entry conditions include notifying authorities of certain activities, associations and education. This balances the presumption of innocence and terrorism risk management.

Under the TEO scheme, it's an offence to provide false or misleading information with regard to return permits. The defendant, the foreign fighter, bears the evidentiary burden of proving that the material they provided was not false or misleading. This promotes accountability and favourably reduces public expenditure. The financial impact of this scheme is low, and costs will be met from within existing agency allocations.

To conclude, the TEO scheme addresses the vexed issue of what to do with Australian citizens who have been exposed to terrorism in Syria and Iraq, either by directly participating in terrorism or by virtue of being family members of terrorists. These bills strike the balance of upholding Australia's international obligations while protecting Australian communities from those who've lived and supported organisations whose entire ideology is the destruction of the West and the Australian values we hold dear. Many of these people have been reprogrammed to oppose our way of life, so, although they have a right to return to their country of citizenship, it's crucial to have regulations in place to monitor their return.

These bills are commonsense reforms to Australia's national security framework. They allow the minister, under appropriate supervision, to delay the re-entry of foreign fighters and their families who are potentially experienced in committing terrorism. They also put in place structures to closely monitor and investigate their individual profiles to allay risk once they return home.

I commend these bills, as presented by the minister to this House, and I oppose the amendments that have been put forward by the member for Isaacs.

Dr ALY (Cowan) (12:50): I rise to speak on the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 and related bill and to add a bit more nuance to the discussion we're having here today by drawing on my experience and knowledge in this area. As the member for Isaacs and shadow Attorney-General pointed out—and I'd like to reiterate this quite strongly—Labor puts the safety and security of Australians first. We do support strong laws. We seek to work in a very bipartisan manner to ensure national security. We have worked for the most part in a very bipartisan manner with the government on these issues.

My concern and the concern of Labor is that the current legislation is not strong, effective and impactful. The other concern, which the member for Isaacs spoke about at length, is the process for these bills. The issues raised point to the fact that, in essence, if the government were to pass these bills in their current form it would in actuality be rejecting the recommendations of its own committee. The PJCIS is run by the government, is chaired by the government and has majority government members. That has historically and traditionally worked quite well in a bipartisan manner with Labor.

I'd like to speak about the broader context of foreign fighters and violent jihadists and the situation we currently have. I'd like to make some points here. This temporary exclusion orders legislation before us gives some precedence and thought to mitigating the very immediate threat violent jihadists, who may or may not have participated in violent warfare, returning to Australia pose to Australia because they retain a particular ideology that may then fuel further violent operations. The member for Berowra spoke at length about people gaining experience in terrorism. I can tell the member for Berowra that there are people with no experience in terrorism who can cause just as much destruction as those with experience in terrorism. That, unfortunately, is the nature of modern terrorism.

Certainly, community safety and mitigating the very immediate threat of returning foreign fighters or returning violent jihadists should be of the utmost importance. There are three points I'd like to make about where the legislation falls short. Australia currently has one of the broadest suites of legislation around terrorism and terrorism related incidences of any Western country. That doesn't necessarily mean that we have a more effective and more impactful legislative suite when it comes to terrorism.

What we have here perpetuates the mistake that we made in believing that al-Qaeda, ISIS and the violent jihadi ideology could be eradicated through traditional military means alone—through the decimation of terrorist capabilities, through the decimation of terrorist training camps and through limiting their financial capacity. What we've seen and experienced is that that is certainly not the case. This is a war for hearts and minds as much as it is a battle on the battlefield.

I'd like to make some points about the TEOs and why we should not only be concerned about immediate community safety but also have medium- and long-term strategies to fight terrorism and eradicate terrorism. The first point I'd like to make on that is that a significant proportion of foreign fighters have a migratory nature. That means that they will go from one theatre of war to the next theatre of war. Foreign fighters in Syria, for example, had been trained in the battles in Afghanistan years before. When we apply these temporary exclusion orders and we keep people out of Australia for two years with the priority, and the correct priority, of keeping Australians safe and mitigating that initial threat we also need to recognise that what we're doing is keeping them away, so that they then become migrant foreign fighters chasing the next theatre of jihad. And unless we do everything that we can to eradicate the threat of terrorism at its roots, unless we do everything that we can to battle violent jihadism in all its forms, there will be another theatre of jihad. There will be another war, another combat space, and these people will simply move to that next theatre.

The second point I want to make, which again underscores the need for not just having TEOs to mitigate immediate threats but also having a medium-term vision to eradicating and dealing with terrorism, is about restitution and justice. I recently read the story of a Yazidi woman who was awarded the Nobel Peace Prize. Unfortunately, she is not alone and the kinds of atrocities that were committed against Yazidi women by ISIS fighters show unimaginable barbarity. I think that it is important that these women, and men and children, have some form of justice, some form of restitution. How can we do that if we don't bring these people to justice? Whether it's by bringing them back here and sending them through courts or having some other form of international, coordinated effort where we can at least have some form of restitution for the horror and the suffering that the Yazidi women, the Yazidi people and other minorities in Syria and Iraq went through.

The third point that I'd like to make is that Australia is not alone in this situation. There were many countries who had a higher proportion of foreign fighters present in Iraq and Syria fighting for ISIS. We are certainly not alone. This is not an Australian dilemma and it is not unique to Australia, which points to the need for international coordination to deal with the issue of foreign fighters from all countries around the world who are seeking to return to their countries of origin. I must reiterate this point very strongly, because in 2015 I went to United Nations talks in Vienna and it was very clear there that we needed much more international coordination, and much more of an international effort, on how we deal with returning foreign fighters but how we also deal with the issue of terrorism more broadly as well.

As I've said, we support the intent of these temporary exclusion orders. We support the intent of these orders in that they give priority to keeping Australians safe and they give priority to community safety. However, the process at which we are now at, this point where we are debating this legislation here in parliament, has raised some issues of significant concern for Labor. Those issues of concern being that the recommendations made by the government's own committee, the PJCIS, have basically been ignored. When we vote on this legislation, what we are going to have is a government that is voting against its own recommendations. We're also going to have an issue where a longstanding record and history of bipartisan on national security issues—particularly through the PJCIS, as the committee with a mandate in this area—appears to have been undermined and eroded by the government's actions with regard to this legislation. It certainly sets a precedent that I think is not in the interests of all Australians and certainly not in the interests of the safety of all Australians.

As I have said, I believe that the TEO is absolutely necessary to ensure immediate community safety. But as with all legislation, it cannot be effective if it is not backed up by a much more robust and comprehensive approach to countering the threat of terrorism in Australia. That process, that agenda or that suite that we have cannot purely be legislative. I note that the member for Berowra in his speech recently, just here, talked about children who have been taken to Syria and Iraq in ISIS combat zones. They may well have been raised into a radical ideology, and they would be coming here—if we allowed them in—and would not be monitored. Yes, he's absolutely right. That's because this government has failed to develop any kind of effective program of early prevention, of deradicalisation—to use the term quite loosely, as an umbrella term—and of social reintegration, particularly for children and young people who have fallen prey to radical ideologies.

The government have talked a big game on this. They have talked a big game about providing $13 million for deradicalisation programs. They have talked a big game about $60 million for eradicating the threat of terrorism. The fact is, as I know and as people who I have worked with in the past know, there is nothing there on the ground. We have 13-year-olds who are becoming radicalised. Their parents are crying out for programs and support, but there's nothing available for them.

While we can keep an eye on legislation and temporary exclusion orders—to keep people out, mitigate that risk and all of that—this is not a problem that's going to go away after two years. We can keep them out for two years; but, after two years, we're going to have the same problem. There may perhaps even be a greater problem if a new theatre of jihad arises somewhere and they all migrate to that new theatre of jihad or if they end up staying where they are and become more radicalised, have more children and raise more children in a radicalised setting. This is not a problem that is going to go away with these TEOs.

I urge us all, everyone in this House, if we are serious about the safety and security of all Australians and if we are serious about national security, to look beyond these temporary exclusion orders. We have to look beyond short-term legislative responses to long-term ideological existential threats.

Mr PITT (Hinkler) (13:03): I rise to speak on the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019. Before we get to the substance of the bill, I would like to provide some responses to the contribution from the member from Isaacs. Everyone in this place knows that the member for Isaacs is great at verbal gymnastics. He is incredibly good with the verbal uppercut and good with the velvet glove and sucker punch. I think the comments that he made in regard to the member for Berowra and the member for Canning were inappropriate. In my view, those two individuals are people for whom integrity runs from their pores. They should in no way be disparaged in this place for their role on a committee.

I would say the member for Isaacs that we all know where your skill set is. In particular, if we look at the member for Canning—a former SAS officer, who literally put his life on the line for this country—I think it's wrong for anyone in this place to suggest that someone who has lived their adult life by words like honour and integrity and who has actually worked for this nation, and yet still we still hear the same comments from those opposite. Can I say that I've been called lots of things, but a constitutional conservative is not one of them. However, it was suggested by the member for Isaacs that we may well be constitutional conservatives, and, as a broken-down electrician, I've got to tell you that I'm really not that sure. However, Labor is hanging its hat on the fact that not all of the recommendations of a particular committee have been applied. Every single member in this parliament—apart from the new ones, of course—has been on a committee where the recommendations of their committee work have not all been accepted by the minister or by the government of the day. It is a regular and ongoing occurrence. It happens all of the time.

This is an incredibly important bill, and, once again, I would certainly go and put on the record my congratulations and thanks to the people of our security forces—those who are out working with the AFP and those who are in law and order—who are ensuring that our nation maintains its safe record. They work very hard every single day. Those results do not happen by accident. I think we all have a debt of gratitude to those individuals.

The Counter-Terrorism (Temporary Exclusion Orders) Bill does introduce a single explicit source of legislative power for the government to control the return of Australian citizens of counter-terrorism interest from overseas conflict zones, and I know this is a concern for the people in my electorate. The temporary exclusion orders scheme will enable greater control over the return of these Australians by providing a streamlined mechanism to impose conditions, specifically notification requirements, and facilitate the monitoring of individuals who may pose a threat to the Australian community. Why is it necessary? Unfortunately, we no longer live in the same world that we knew. We simply do not. Since 2012, around 230 Australians have travelled to Syria or Iraq to fight with, or support groups, involved in the conflict. I don't understand that. The people I represent don't understand it. I don't know why they've done it. Certainly, we do not support it. It is just incredible to me that people would take that position, but these Australians are part of a group of over 40,000 foreign fighters, including around 7½ thousand from Western countries, who have travelled to that region since the conflict began, and around 100 Australians or former Australians who travelled to Syria or Iraq have been assessed as being deceased. So around 80 Australian men and women are currently in Syria and Iraq and have fought for, or otherwise supported, Islamic extremist groups. And, based on the data from third-party sources, there are known to be at least 20 adult women and at least 43 children in Syrian IDP camps.

This scheme comprises two components. The first prohibits the return of Australians of counter-terrorism interest without forewarning. The minister will have the power to make a TEO in relation to a person which will prohibit the person's return to Australia until issued a return permit. Importantly, the bill does not permanently prohibit entry into Australia, and a person is entitled to be issued a return permit if they apply. This will prevent Australians of counter-terrorism interest returning without warning or without adequate protections being in place. The second component will enable the minister to impose conditions in a return permit to control when and how the individual can return to Australia. These conditions ensure that the person will arrive into the hands of authorities with no surprises.

I know that there are many on this side of the House wishing to make a contribution, so I will keep my contribution brief, but we must continue to ensure that the parliament moves with the remainder of the world, and the world has shifted. It is no longer the world and the nation that we knew as children. We must take action. This is what has been recommended particularly by our own security forces, by those individuals who work every single day in this theatre. We should take their advice; and we need to act. I absolutely support this bill and what it will do for our nation to ensure into the future that we do everything we can as a parliament, as a community and as an organisation to keep Australians and our nation safe. I commend the bill to the House.

Mr WATTS (Gellibrand) (13:09): It's only Tuesday, and it's already been a disappointing week for this parliament. The second day of the second week of the current parliament has put a spotlight on the threadbare agenda of this tired, third-term government. It's a government that has turned a permanent campaign into a permanent opposition. This week has revealed a government with no substantive agenda of its own and a compensating obsession with those sitting opposite them in this chamber. It's a government that's more interested in pursuing tactical wedge politics than in delivering for those people that elected them to represent them. It's a government willing to trash longstanding norms of practice and procedure in this place in pursuit of short-term political tactics. Ultimately it is the Australian people who will pay the price for the approach being taken by those opposite.

The Labor Party will always work in a constructive and bipartisan manner on national security, even when we are lacking a partner in this effort. Keeping Australians safe is Labor's No. 1 priority. We support strong laws and we'll seek to work in a bipartisan way to achieve the best outcomes for keeping Australia and Australians safe. For the past six years we have worked constructively and in a bipartisan way with the government through the Parliamentary Joint Committee on Intelligence and Security. Throughout both the Abbott and the Turnbull governments, the PJCIS process was respected by all those who participated in it, and during that period the PJCIS inquiries resulted in 31 reports with 369 recommendations—invaluable, bipartisan work done behind the scenes in the public interest by parliamentarians acting in good faith to improve proposals and legislation brought to the committee to keep Australians safe.

The Abbott and Turnbull governments accepted all but one of the committee's recommendations, and the result: better legislation to keep Australians safe. It's been hard work in this committee. I haven't been a member, but I know the regard in which it is held by all members in this chamber. A spot on this committee is keenly sought by members because we understand the privilege that it is to serve on it and the special obligations that it brings—scrutinising proposals to keeps Australia safe, long hearings to gather evidence about the efficacy of these proposals, rigorously testing legislation to ensure that it delivers on those proposals, and tough, good-faith negotiations where, after this scrutiny, after hearing the evidence, there are differences of view.

That brings us to this bill, the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019. Labor supports the PJCIS's recent recommendations on the temporary exclusion orders—bipartisan recommendations made in good faith by this committee. Labor supports strong laws that will secure the safety of Australians and we support the need for a temporary exclusion order regime. The issue of foreign fighters is not a new one, and there are international lessons that we can draw from. The United Kingdom has had temporary exclusion order legislation in place since 2015. Both Labor and Liberal members of the PJCIS worked diligently through the various community concerns and provided their detailed report on 4 April 2019, making 18 substantive recommendations. So far, so normal. That's the way it's supposed to work—a substantive report provided in good faith, a consensus report on a bipartisan basis. But this is where things change.

The temporary exclusion order legislation we are debating today explicitly rejects a number of PJCIS recommendations—for the first time explicitly rejecting consensus, bipartisan recommendations designed to improve this legislation and to make Australians safer. The government claims that it is only rejecting two recommendations, but that's clearly not true. In total, four PJCIS recommendations have been rejected in full by the Minister for Home Affairs, and six have been rejected in part. Recommendation 10 from the PJCIS suggests that a person may seek judicial review of a decision of the minister to grant or refuse an application. The government has argued that judicial reviews are unnecessary in these circumstances because a minister must accept an application for a return permit. But that's not true. The minister must give a return permit if the person has applied to the minister in a prescribed form and manner or if the person is to be, or is being, deported to Australia. The minister may refuse to give a return permit if he does not believe the person has applied in an appropriate manner. But, more importantly, judicial review of a decision to grant a return permit is needed because it allows the applicant to seek judicial review on one or more of the conditions set out in the permit rather than in the permit itself.

The bill put forward by the government is not as strong as this law should be. In fact it's unclear if the law is even constitutional. We often get lectures from those opposite about the virtues of constitutional conservatism, about not playing with a system that is working efficiently. And yet those opposite cannot, with hand on heart, stand in this chamber and say that this legislation will be constitutional. The Law Council of Australia has stated publicly that this legislation risks being struck down in the High Court for being unconstitutional. Labor members of the PJCIS have repeatedly requested an assurance from the government that the bill is constitutional, but this has been ignored.

In rejecting the PJCIS's recommendations, the Minister for Home Affairs seems to have forgotten that these are not partisan recommendations, that these are not recommendations of the Labor Party. These are bipartisan recommendations from the most respected committee in this parliament, from members respected by all in this parliament, a committee that has done invaluable work, over the past six years in particular, in making Australians safer. Unfortunately, the Morrison government is establishing a track record of breaking this compact in the way that the PJCIS has happened to date, as occurred—not explicitly, but in practice—in the last piece of national security legislation that was rushed through this parliament, the assistance and access bill, in 2018.

Despite the PJCIS handing down 17 substantive recommendations on the assistance and access bill, these recommendations were not fully incorporated in the legislation passed by this parliament. Labor proposed several amendments to bring the legislation in line with the PJCIS's recommendations that addressed numerous community concerns that the PJCIS had heard during an extensive parliamentary inquiry into that bill. The government has in effect rejected those amendments, thereby rejecting the bipartisan compact in the PJCIS. This is no way to deal with important national security legislation.

Rushing legislation through this parliament without proper debate, eschewing established bipartisan parliamentary processes, risks problems in the future. It leads to mistakes, as we saw with the rushed passage of the access and assistance bill. Even though that bill was intended to assist law enforcement and our national security agencies by facilitating the interception of online communication channels, in practice that legislation may end up leaving Australian law enforcement and national security agencies unable to take advantage of the recently passed CLOUD Act in the United States, a US law intended to make it easier to obtain access to data held by tech companies.

What we're talking about here is the difference between data in transit and data at rest. The Telecommunications and Other Legislation Amendment (Assistance and Access) Bill dealt with assisting law enforcement to access data that was being communicated between people. That was the whole encryption debate. But in the process of dealing with that, by failing to include judicial review in the access and assistance bill, unintentionally—because that bill was rushed through this parliament—we have precluded ourselves from having access to a new regime designed to facilitate access to a vastly large trove of data, a vastly more valuable law enforcement tool. We have precluded access to the data stored by these communications companies in the United States.

In a Law Council submission to the PJCIS inquiry in 2018, they argued that the law is likely to disqualify Australia from entering into an executive agreement with the US under the CLOUD Act, because the CLOUD Act states that before entering an agreement the US Attorney-General is required to certify that the other nation 'affords robust, substantive and procedural protections for privacy and civil liberties' in light of the data collection and activities of the foreign government that is subject to the agreement.

What this is about is that the Americans have a law saying that data stored in the US is not allowed to be shared outside the US outside this CLOUD Act regime. The CLOUD Act regime says that that data can only be shared outside the US if it's being shared with another country that has robust procedural protections for that data. The United Kingdom is currently negotiating access to that legislation, as you would expect, as a Five Eyes partner. You would expect that Australia would be next in line, as another Five Eyes partner. But we've stuffed it up. Until we fix the access and assistance bill that was rushed through this parliament—heedless of this concern—we will not be able to negotiate one of these CLOUD Act agreements.

That is the cost of trashing process and procedure to ram through bills in this parliament. That is the cost of trashing the good faith bipartisan scrutiny of national security legislation in this parliament. In the bill before the House today, we must heed the lessons of the access and assistance bill. If the government passes this proposed temporary exclusion order legislation unamended, it may be unconstitutional, as we discussed earlier. If the government passes these proposed bills without change, it will do so in the face of criticism from security experts, from respected organisations such as ASPI and the Lowy Institute. There are serious consequences to disregarding established bipartisan processes and recommendations, which the Morrison government and his Minister for Home Affairs seem determined to do in this parliament.

Why the rush? After doing nothing for such a long period of time, why the rush now? The government wants to rush this bill through the parliament despite significant flaws identified in a bipartisan basis through the PJCIS, because it claims the legislation is urgent due to the risk of foreign fighters. This risk is not new. It has been apparent for many years that Australians would face the risk that radicalised Australians would attempt to return home. We knew this when the United Kingdom parliament passed temporary exclusion orders legislation more than four years ago. But the minister responsible for national security in this country has either been incompetent, lazy or asleep at the wheel. Why has it taken four years?

It wasn't until 22 November 2018, when the newly minted Prime Minister and the Minister for Home Affairs, desperate for a policy announcement, realised they could announce a new temporary exclusion order regime. But then again nothing happened. This seemingly urgent piece of legislation was then not introduced into the parliament until 21 February 2019, the second-last sitting week before the federal election. The government then rushed the legislation through the PJCIS. Both Labor and Liberal members worked extraordinarily hard through the PJCIS to make 18 recommendations, which the government rejected the majority of—10 of those recommendations. Now they want to rush this legislation that is so important to ensuring the safety of Australians through the parliament, disregarding established bipartisan practice, despite not doing anything about the issue from many years.

What the government ought to do at this point is take a deep breath, step back and restore bipartisanship in this process. It should refer this legislation back to the PJCIS. While Labor supports the need for temporary exclusion order legislation, we will seek to amend this legislation to reflect the considered thinking, hard work and bipartisan recommendations of the PJCIS. The Counter-Terrorism (Temporary Exclusion Orders) Bill and the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill, read together, are not consistent with the PJCIS recommendations. The bills should be referred back to the PJCIS to ensure that they work, to ensure that all concerns have been addressed and to ensure that they can withstand High Court challenge.

It's high time that the Morrison government return to the bipartisan process respected by both the Abbott and Turnbull governments and let the PJCIS do its job. The safety of all Australians is too important for national security to be politicised in this way. That's the nub of it. That's what's going on here. Four years of inaction—nothing! Legislation that could have been introduced any time through that period was introduced in the second-last week before a federal election—no rush, no urgency—and now, with a new parliament that has no policy agenda and the government sniffing a short-term tactical benefit, a short-term political wedge, it is the No. 1 priority. In pursuit of that short-term political benefit, that political wedge, this government is willing to trash one of the most important institutions in this parliament.

Institutions take decades to build. The respect of the PJCIS by all members of this parliament is extraordinary. It's unique in this parliament. What is happening today with this bill is very significant, and conservatives sitting opposite ought to care about this more than anyone else. Who is standing up for institutions in our democracy today? Do those opposite think that our democratic institutions are in robust health today? Do they think that their constituents, the Australians who put them in this place, think our democratic institutions are in rude health? We know that's not the case. Now is the time to take a stand for our institutions and defend them because they pay dividends down the line.

Mr HASTIE (Canning) (13:24): The Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 is very important and significant legislation because its purpose is to protect the Australian people from terrorists and returning foreign fighters who seek to harm us. Those returning foreign fighters have been radicalised online, recruited by Islamic State and their affiliates. They betrayed their country—they betrayed us—to fight in Iraq and Syria and now are seeking to return, and continue to struggle. They are returning to us with combat experience, hard hearts and a proven capacity for violence and bloodshed. We have Australians among us, and looking to return, who see themselves as part of a global insurgency against free peoples committed to liberal democracy, the rule of law, and values and institutions that uphold the dignity and sanctity of the individual.

These foreign fighters have betrayed our country and exchanged their place in our community for a seat at the table for violence, bloodshed and tyranny. They do not deserve—nor should they receive—an open door back into the safety and security of our Commonwealth. Therefore, the purpose of the temporary exclusion orders bill is to delay, control and risk-manage the return of foreign fighters and other nefarious characters into our Commonwealth. Our law enforcement and intelligence agencies have a number of operational tools at their disposal, and this bill strengthens their capacity to manage the threat posed by foreign fighters.

As chair of the PJCIS I led an inquiry into and reported on this bill in the 45th Parliament, back in April. We made 18 recommendations, including an additional one that the bill be passed. Our inquiry was thorough and our debate internal to the committee was robust, as it should be in a functioning democracy. The government has responded and accepted either fully, in part or in principle, as is the language used in the government's response, 16 of the recommendations. The government has noted two of the committee's recommendations.

Since this report was tabled, I have received further briefings from law enforcement and intelligence agencies, alongside my deputy chair, the member for Holt, and the intelligence we received was not encouraging, to be frank. It is true that the global coalition against Islamic State has prevailed militarily in Iraq and Syria. However, to proclaim victory is to call a false dawn. We have struck the shepherd but the sheep are scattering across the globe—and, sadly, many are Australians. We have a long fight ahead of us against Islamic State, which includes disruption, enforcement and counter-radicalisation. To buy us time, the temporary exclusions orders bill is the most effective way of allowing our law enforcement and intelligence agencies to manage the flow of foreign fighters back to Australia.

It has been made clear to us that there is an operational imperative to pass this bill. I am satisfied with the government's response. Therefore, I support this bill in its present form and will vote against Labor's amendments. I think the most significant recommendation was No. 7, the judicial review. During the inquiry, we had several submitters, including the Australian Human Rights Commission and the Law Council of Australia, make it very clear that judicial oversight was lacking from the bill. We have recommended that be included. The government has responded by accepting, in principle, recommendation No. 7. That is the news story that so far has been missed by much of our media.

The member for Isaacs spoke earlier and gave us 30 minutes of what I can only call Shakespearean obloquy. We had outrage, condemnation, self-justification and all manner of rhetorical tricks. The question for the member for Isaacs is: will you vote for this bill? He's asked coalition members if we will cross the floor to vote for the amendments. The answer to the member for Isaacs is: no, we will not vote with Labor for their amendments—out of principle, and because of the need for this bill to be passed in its present form. Moreover, we will not vote for him, he who fears his political reputation by voting with us. I suggest the member for Isaacs join us on the yes side when the bells ring later today.

The DEPUTY SPEAKER ( Mr Rob Mitchell ): The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour. The member will have leave to continue speaking when the debate is resumed.

Mr PORTER (Pearce—Attorney-General, Minister for Industrial Relations and Leader of the House) (15:14): Mr Speaker, for the information of honourable members present, I present the replacement explanatory memorandum to the Timor Sea Maritime Boundaries Treaty Consequential Amendments Bill 2019 and the Passenger Movement Charge Amendment (Timor Sea Maritime Boundaries Treaty) Bill.

Mr SUKKAR (Deakin—Assistant Treasurer and Minister for Housing) (16:19): by leave—I move:

That Mr Goodenough be discharged from the Parliamentary Standing Committee on Public Works and that, Mr Zappia, Mr D. P. B. Smith and Ms L. M. Chesters be appointed as members of the committee.

Question agreed to.

Dr MIKE KELLY (Eden-Monaro) (16:20): I rise in support of the amendments proposed by the shadow Attorney-General. In relation to this issue some tense comments have been made in the course of the morning, but I'd like to try to draw back and bring back some sanity to this discussion. This is important for a number of reasons. We have had—and it has been commented on—a great history of bipartisan collaboration on the Parliamentary Joint Committee on Intelligence and Security. To be part of that effort in the interests of national security is probably one of the most rewarding experiences I have had in this parliament. I have great respect for the coalition members who have been working with us on that committee; and I've had great respect for the chair of the committee, the member for Canning, who brings not only his service background to that endeavour but has been patient and deliberative in his work. And we have produced good results in the committee.

The amendments, the recommendations that we have worked through, particularly with the intensity of the workload over the last six years, have been significant. We have faced real threats. And there are real concerns from the agencies, which we have listened to and tried to deliver the outcomes they have sought. I have to say that that 17 tranches of legislation that the Minister for Home Affairs refers to required a lot of work. Frankly, in the process of rushing those through the committee, there was a lot of work that needed to be done to repair them to deliver the outcomes they sought. The committee worked together to produce those outcomes. In particular, I want to commend the shadow Attorney-General. He and his team did the work of a department in producing over 300 recommendations to achieve just that: poor drafting was highlighted in the public and private hearings we conducted. Those 300 recommendations were accepted and it was a joint effort on that committee to achieve those outcomes.

We did that work in the same style and the same manner again in relation to this temporary exclusion order legislation. The recommendations were put forward in good faith on the basis of the legislation that was presented. As has been mentioned by the minister, this was modelled on the UK measure produced in 2015. So this is something that could have been in process at any time over the last six years—or at least since the UK model was reflected upon in 2015. So there would have been time for us to revisit any substantive redraft of this legislation before the committee. And what we are proposing is that that be the course of action—that this legislation be referred back to the committee and done on an urgent basis. We could do that work, however long it took—in the course of this week, we could've got that work done.

There are a couple of issues in particular. The committee produced 18 recommendations altogether—and I noticed that there was some quibbling over what was accepted and what wasn't. In the few minutes I have left to speak in, there is one particular issue of concern that needs addressing, and that is the question of constitutionality. Both sides of politics, in these last 10 years, have experienced issues where approaches we have taken in policy have been struck down by the High Court when there's been a belief by governments that it was all kosher. We've had specific expert commentary reflecting on the constitutionality of this legislation that needs to be answered. And we are putting that forward in the interests of making this legislation effective and not making it vulnerable.

We've supported the legislation—although I have some personal concerns with the approach, which I will come back to. In the circumstances that the agencies are in, in dealing with these returnees, this legislation has been indicated as being important to give them time to respond to preparations for receiving these threat elements returning from prescribed areas, that we have outlawed under legislation, and most likely participating in crimes against humanity, against international law and fermenting terrorism within Australia from those remote locations. It would be in our interests to make sure that they are effectively prosecuted when they return to this country, and we understand the need for preparation for that. However, there are circumstances that need to be addressed in resolving this constitutional challenge and in providing the committee and the parliament time to carefully consider the bill in detail.

I will also comment that this legislation, this approach of temporary exclusion, has been criticised by a number of authoritative institutions in terms of the security outcome we seek to obtain here, and that includes the Australian Strategic Policy Institute and the Lowy Institute. Even the executive council of the Australian jury and the Law Council have commented on the risks that may be generated by taking this approach to this problem.

There's another issue here too, which is that we are putting a burden on our Kurdish friends, who are not a state. They don't have the structures and the institutions of a state. They have been brave. I worked with the Kurds in the year that I served in Iran. They are most reliable ally that we have. They have held the heavy burden in this fight against ISIS—above all other stakeholders involved in this effort. Yes, men and women of the ADF provided wonderful support to enable them to achieve results, but they were the ones largely doing the fighting and dying in the field against these horrendous, heinous criminals, and now they're asking for help. This is a huge burden for them and they need help. We've seen ISIS move from the conventional combat phase of operations. Now they have morphed back to their traditional style of terrorism, and transnational terrorism, and that is their effort to grow and spread their terrorist acts across the globe, so this international threat requires an international effort to deal with it.

The US Secretary of State, Mike Pompeo, has highlighted that that is the fact, and has called on those countries with citizens in this situation to take those people home and deal with them. He's well aware that there's a risk there that these threat elements will spread out to areas where they can operate with impunity, they can be welcomed as heroes and they can operate in ungoverned spaces. We've seen this story play out before in Afghanistan and elsewhere. The exact words of Mike Pompeo were:

We have an expectation that every country will work to take back their foreign fighters and continue to hold those foreign fighters, we think that is essential.

That's our major ally. That's the Trump administration. This is not some social democratic administration, this is our key ally and the Trump administration.

Mr Pompeo also said that the West would, 'never have to fight these same terrorists again,' if we took this kind of action. He said:

We have rounded them up, they are now contained and they need to continue to be contained so they cannot present additional risk to anyone anywhere in the world.

That is important, because the truth of the matter is that more than 100 Australians have been killed since 2001 in overseas terrorist attacks. That is by far the greatest threat and risk to Australians. Australians are great travellers. Our kids and retirees are out there touring the world, visiting interesting places, which can be risky. It is in our interest to ensure that we limit the risk that they face when they are travelling where they have faced the biggest threat of being killed and maimed in large numbers.

You can look at that story. It happened in New York, Bali, Barcelona, London and Sri Lanka. Australians have been casualties of terrorist attacks in all of those venues. I will just cite one story that brings that home to me. In 1995 there was a gentleman who the Sudanese government had in their custody that they wanted to return to Saudi Arabia. The Saudi Arabians refused to take him back because they had revoked his citizenship. This goes to this other measure that we have looked at here in terms of revocation of citizenship. They wouldn't take him back, and so the Sudanese government in 1996 sent that individual to Afghanistan. That was in 1996. After that happened, that individual, whose name was Osama Bin Laden, caused the bombing attacks on the US embassies in Darussalam and Nairobi—hundreds killed—the attack on the USS Cole, and 9/11. That led to the war in Iraq, the war in Afghanistan and thousands and thousands of people being killed, all because his citizenship was revoked and he wasn't taken back by the country who owned him.

This is the potential risk that we run in doing the same to these citizens of ours, who would have a special interest in targeting Australians and who were engaged in fomenting terrorist action in Australia from those remote locations. This is the risk we are running in taking this approach. I personally feel that we should have a regime in place here where we can take these people back as soon as possible and restrain them—those arrangements seem to already exist in a lot of the legislation we've already produced through the committee and in this place—to keep them off the streets while we pursue possible prosecution or at least the safe tracking and containment of those individuals. That, I think, would be the more prudent, secure and risk-eliminating approach to take for Australian citizens. We've seen the situation where individuals go back to a country where they had a second citizenship, for example Libya, Lebanon or Pakistan, and we know what could potentially occur from there. There are ungoverned spaces in all of those places.

So we have a real problem that we need to deal with effectively here. We support this bill as one option for dealing with this problem in certain circumstances. Obviously, the agencies have indicated they need time to prepare for receiving these people in the circumstances that they are operating in at the moment, so we don't oppose that. But what we do say is that this legislation needs to be looked at again in the form that it has been presented.

I will make one other comment before finishing. I've put special emphasis on the fact that this has been a bipartisan committee. I have spent more than 30 years of my life immersed in the security affairs of this nation, fighting these terrorists and dealing with these issues, only in the national interest. When I was security adviser for Bill Shorten, I worked closely with Peta Credlin to make sure that our approach was bipartisan. I made it clear to her that all she had to do was tell me this was needed and we would work to make these things happen. So I find it extremely worrisome that the government, in its approach to this legislation, is leaving open the accusation of politicising this issue, as evidenced by comments such as, 'Whose side are you on?' That negates the very democratic institution that all of this is meant to protect.

But, beyond that, it's a personal insult not only to the general members here, who are all proud Australians, but I've worn this country's uniform in four different war zones, putting my life on the line to fight these people. No-one can say to me, or to the member for Solomon, who served in this country's uniform, 'Whose side are you on?' The member for Maribyrnong served in the reserves for this country. The member for Moreton wore the Air Force Reserve uniform. Don't say to them, 'Whose side are you on?' Argue the merits of this policy. Don't deny the valid role of this institution to debate and analyse these types of legislation, because it's important we get the balance right between civil liberties and action on security but also deliver the right outcome. We are entering into the commentary on this legislation in good faith. Don't question the patriotism or the intent of the members on this side. I won't stand for that. We won't stand for that. Just engage in an honest debate with this. Use the institutions that were created to deal with these matters. Let the parliamentary joint committee do its work. It's done good work. It will do more good work as long as we keep the politics out of this.

My plea to this government is that we revisit this style of approach you are taking now. Do not put at risk the institution that we serve or the faith that the Australian people place in this institution to do things the right way in the interest of national security and protecting their liberties.

Mr BANDT (Melbourne) (16:35): It's important to be clear what the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, which we are voting on today, will do. Under this bill, if it passes, this will be the state of the law: the minister could refuse to allow an Australian citizen back into the country, even though that person has committed no crime. That decision by the minister is not reviewable by any court or by anyone else, and the minister can keep on doing it again and again and again. In other words, if this legislation passes, the current Minister for Home Affairs has the capacity to say to someone who's travelling overseas: 'No, you are not entitled to come back to your family, to your home, even though you've committed no crime, and there are absolutely no checks and balances on that power. If you think I've made the wrong decision, you cannot do anything about it.'

We are seeing the rule of law slip out of our hands. Under this government, we are seeing—and have seen time and time again—some very basic principles of Australian democracy in our constitutional system getting trashed. Up until a little while ago, the idea was that if someone suspected you'd done something wrong you would get taken in front of a court and if you'd done the wrong thing you'd get punished and could potentially be imprisoned. We are now moving a world away from that to a point where not a judge with all the facts, where there is a right of reply, but a minister, who is making a decision behind closed doors, gets to determine whether they think you've done something wrong—or, not even that, whether they think you might do something wrong in the future, even though you haven't done anything wrong already.

In other words, we're moving away from a system where you do something wrong, you get brought before the courts and you get prosecuted. We are moving away from that. We are moving to a system where someone thinks you might do something wrong in the future; therefore, you get punished. That is not what other countries are doing, despite what the minister has told us. We are going further here than are places like the UK in dealing with the threat of terrorism and, in so doing, some very basic principles of individual liberty and the rule of law are slipping from our grasp.

The attempt to move this bill in its current form is clearly an attempt by the government to wedge Labor. It's nothing more than that. You can absolutely see that, because the government was prepared to introduce some safeguards a little while ago and now they've backflipped. It is crystal clear to anyone who is looking at this that this government has no agenda. It was elected as a one-trick pony. That trick has happened, so now they've got to fill the rest of their time, and they are thinking, 'What can we do to try to wedge the opposition?' That much is crystal clear.

I will support the opposition's amendments to this bill, because they try to make a bad bill better. I will support the move to refer it back to the committee to try to get some of those amendments back in. I say all that in the context of us having been very concerned about the work of this committee and the closed-door deals that it does and the fact that it locks out third-party voices in this parliament. What it usually ends up doing is proposing legislation to take away people's civil liberties, which gets rammed through this place.

Let's put that aside; I'll be supporting the amendments. But I do plead with the opposition to reconsider their position if their amendments don't get up either here or in the Senate. This is what the coalition government is doing in week 2 of its term—trying to say that the minister is able to bar you from coming back into this country to live at your home or see your family, even though you've done nothing wrong. That's what they're trying to do in week 2. And if you give in now, imagine what it's going to be like at the end of three years. I and the Greens will fight hard to defend principles of rule of law and democracy and liberty in this country. Over the next three years, because we know that this government will stop at nothing—there is nothing they won't do, given that they've got no agenda; there is no line they won't cross—we are going to need to be very vigilant in this parliament in defence of some of those basic principles.

Let's go through in a bit of detail what this bill does. Under this bill the minister can issue an order to say, 'No, you are not allowed to come back into the country.' That applies to citizens as well as others. So, that's the first thing people need to know. This is going to apply to all of us. People might have in their minds, 'Oh, this only applies to someone who is potentially coming here who might have lived in another country or grown up in another country.' No. To the Australian born and bred, the Australian citizen: this will catch you. If the minister thinks you might commit an offence of a certain kind related to terrorism when you come back in here, then the minister is able to say that you're not allowed back in the country.

That is different to the United Kingdom legislation that the government has spoken about many, many times. Under the United Kingdom legislation, the idea is that you've done something that counts as a crime first. There's a test; there's a threshold. So, it's not just that someone sitting behind a desk thinks, for their own political reasons, that you might do something in the future. There is a threshold. It's much more consistent with the basic principles of the rule of law. That is not in this legislation. In other words, to get pinged under this you don't even have to have done something wrong in the first place.

The minister can also act if they get advice from ASIO. What's notable about this is that the advice from ASIO that the minister says they're acting on is not challengeable or reviewable, even by an Australian citizen. In other respects, ASIO's advice against you is challengeable. But this government has gone out of their way to say, 'No; we're going to introduce a new kind of advice from ASIO in this legislation'—where someone can just pick up the phone and say, on a nod and a wink, 'I think someone's a concern.' Then the minister can say: 'Well, that's good enough for me. I'm going to deny them entry.' And there is nothing you can do about it, as an Australian citizen, if the minister says, 'Well, I've just got this advice, so I'm going to make the decision.' There is no protection built in for you under this legislation. In the United Kingdom, before they're able to do something like this to you they go to a judge. Here, they don't have to go to a judge before they make the order, and then you, as the citizen, if the order's been made against you, don't have the right to take it to a judge afterwards.

So, this man who is sitting at the despatch box right now is the one who can determine, for every single one of us in this country, whether we're allowed back in or not, to see our home and our family. There may well be some very legitimate instances in which there are some people to whom we say, 'No, you've committed a crime; something should happen to you.' But there might be a bunch of other people who have done nothing wrong and, out of a misunderstanding, you think, 'Well, they might do something in the future.' What can you do if you get one of these orders made against you? It's why, in the United Kingdom, you can challenge these things in court. It's why a judge gets involved and why you don't give one person—this man here, the member for Dickson—the power over you and your life. But that is what this bill will do.

There would have been some safeguards in it had the amendments that came out of the committee passed. Would they have been adequate? Probably not. Would this bill have been better than what it is? Yes. But those amendments aren't in this bill. They were argued for for a very, very good reason. That is because we are slipping into something other than democracy when we give one person the unchallengeable power to say, 'You are not allowed into this country even though you are a citizen'—or even if you're not a citizen. One person could say unchallengeably, 'You as a person are not allowed into this country.' That is of grave concern.

I accept that we are dealing with complicated issues here, because there may be instances that are covered by this bill where there is someone who has done something heinous against Australian citizens—for example, being involved in a terrorist act overseas that might have claimed the lives of Australian citizens. Every one of us would want to have a discussion about how to deal with that. My and the Greens' starting point would be if someone has committed a crime, bring them back here, try them and sentence them. If they're found guilty then make them live out that punishment. That is how the law works. There is not a case where the law is broken in that respect. We can prosecute people and put them in jail if they have done things that are terrorism crimes.

This bill goes much, much further than that. It also deals with the complicated question of children. This bill will apply to people as young as 14. Someone as young as 14 could get caught by this. When you're dealing with children, you're most likely to be dealing with something where it's actually the parents who have made the decision on behalf of the children and it's not the children themselves who are at fault. To say Minister Dutton has the unchallengeable power to keep a child out of the country because of something that their parents might have done is an affront.

Again, I accept that these are complicated questions. Whether it's an innocent child who's now having the sins of the father visited upon them or someone who has committed a heinous offence overseas that everyone in this country would think is appalling, there are many from across the spectrum who argue that the best thing to do with those people is bring them back here, try them and put them in jail. This stops it. This says Australia can not only keep them away—and I stress there are going to be two categories of people who are caught by this. There'll be the ones who have committed crimes or done wrong, which most people in this country would think deserve to be punished, and then there are going to be other innocent people who've done nothing wrong at all but that the minister has decided—perhaps out of mistaken identity, who knows—to make an order against. But we'll never find out about it, because you're never going to be able to bring this case to court; you're never going to have any daylight shone on it. We will never know if, tomorrow, the minister decides to keep people out of the country who've done nothing wrong unless a journalist tells us about it. We will never know.

So there are those two categories of people who are caught by this but, with those who have done wrong and who most people in the country would accept have done wrong, you have to question whether or not you say, 'No, we're going to close our doors to you rather than bring you in here and try you under our judicial system.' What are they going to do? Where are they going to stay? Do you really think the world will be a safe place if Australia decides that, rather than bringing back someone who has committed a terrorist act against Australian citizens—while they were on holiday, for example—and trying them and putting them in jail, we will shut our door and let them roam the world?

Is that really what we're saying? Is that really how we're going to make the world a safer place? No.

There are people across the political spectrum who are saying countries should not be allowed to shut their door to their own citizens who've done wrong and that those countries should be responsible for taking them back and prosecuting them. But that's not this minister's approach. This minister's approach is to make the world a less safe place by saying: 'To people who've done something wrong and committed a heinous act, well, we don't care where you go next as long as it's not here. We're going to shut the door. If you go and commit a crime somewhere else, well, you can't blame us.'

Lastly, I again plead with the opposition. This is going to be the first in many of these wedges. If you give in now, it is only going to get worse. This is about democracy. This is about the rule of law. This is about individual liberties and those difficult balancing acts. We cannot support this bill as it stands.

Ms SHARKIE (Mayo) (16:50): The policy underlying this bill has largely been developed as a measure to control the return of Australian former Islamic State fighters and supporters from Syria and elsewhere in the Middle East. I don't think anyone in this chamber disputes that. The bill provides for temporary exclusion orders, or TEOs as they are known, to prevent the return of individuals to Australia without a return permit and for return permits to enable pre-entry and post-entry conditions to be imposed on returning individuals. It provides a mechanism to control the return of individuals who may pose a threat to Australia. We recognise that. It enables the minister to impose conditions on individuals once they have returned to Australia to manage the risk that they may pose to communities.

Centre Alliance is sympathetic to the intent of the bill. However, it is essential that the legislation includes all of the recommendations made by the Parliamentary Joint Committee on Intelligence and Security during the previous parliament and that we are thoroughly able to investigate the concerns unearthed through that committee process, and this bill has not done this. The government introduced an earlier version of this bill in the last parliament and the provisions of that bill were subject to scrutiny through the PJCIS. In their bipartisan report, the committee recommended a number of substantive changes to the legislation. These were sensible, measured recommendations designed to improve the operation of the bill and to provide a modest level of parliamentary oversight and, as the member for Melbourne said, that does not exist in this bill. It is so alarming that Labor would be keen to wave this through—it just beggars belief. And so the government has decided to pick and choose the recommendations they are willing to implement—recommendations that were supported, as I said, by a bipartisan committee.

What we are seeing now is that government, with the opposition, are choosing to give yet more power to the Minister for Home Affairs. That is deeply troubling. Time and time again we are asked to give more powers to the minister and the agencies he oversees while at the same time any attempt at parliamentary scrutiny is rebuffed as being soft on security. That is not true.

We accept the need for the scheme and we accept it needs to be flexible and responsive to an ever changing landscape of foreign conflicts, but it is imperative that the legislation includes appropriate safeguards and accountability measures to ensure public confidence in the scheme. Without further scrutiny of this bill, what confidence can any member of parliament, let alone a member of the public, have in the transparent and just application of this scheme? Furthermore, Centre Alliance is calling for the government to release the legal advice that it received, if any, with respect to the constitutionality of this bill. The PJCIS clearly identified a constitutional uncertainty regarding the temporary exclusion of Australian citizens from their own country. The committee strongly recommended that the government obtain legal advice from the Solicitor-General with respect to constitutional validity of the provisions. We understand that that legal advice has been received, but is it shared with us to make an informed decision here tonight? No. How can I, as the member for Mayo, make an informed decision on this bill when we can't even see the Solicitor-General's advice?

How can I or any other member of this chamber be expected to make an informed decision? Again, Labor: please reconsider your position on this. It just flies in the face of everything that you purport to stand for here.

Of further concern, Arthur Moses SC, president of the Law Council of Australia, has provided legal advice that the proposed legislation is unconstitutional as it is currently drafted. So I call on the minister: please share the government's advice that you received from the Solicitor-General. We want to see it tabled in the parliament. We believe it is a fair and proper ask that you provide it to all members in this chamber. We do not believe that this request is unusual, onerous or without justification. The government's approach to this bill is another glaring example of why we need parliamentary oversight of intelligence agency operations.

Debate adjourned.

Mr DUTTON (Dickson—Minister for Home Affairs) (17:21): The government will not be accepting the opposition's proposed amendment. The government accepted 17 of the committee's 19 recommendations and noted the remaining two. The two noted recommendations were not accepted in full because to do so would weaken and undermine the TEO scheme and increase risks of terrorism to the community. Of the two noted recommendations, recommendation 11 proposed that the threshold criminal liability for a breach of an offence provision in the bill should be knowledge of. This threshold is above the criminal law standard of recklessness and it would, in effect, make the prosecution of offences under the act almost impossible. Amending these offences to be based on knowledge rather than recklessness would therefore reduce the deterrent effect.

Likewise, recommendation 12 proposed that a TEO can only be made if the minister reasonably suspects that the person is or has been involved in terrorism-related activities outside Australia. Requiring the minister to suspect the person is or has been involved in terrorism-related activities is a high threshold to achieve. In many cases, the specific conduct of a person's interest in terrorism offshore is unclear. In other cases, agencies may simply not yet have undertaken an assessment of the person before they seek to travel to Australia. Given that the fundamental purpose of the TEO scheme is to ensure that agencies have sufficient time to assess the potential risk of a person of terrorism interest before that person returns to Australia, the bill facilitates this by providing that the minister may make a TEO in one of two circumstances. Firstly, the TEO can be made by the minister to assist in preventing terrorism-related acts from occurring. Secondly, the minister may make a TEO where the person has been assessed by ASIO to be a direct or indirect risk to security for reasons related to politically motivated violence. The government has carefully considered the committee's recommendations and believes it has achieved an appropriate balance. As I stated, for this reason the government will not be supporting the amendment.

The DEPUTY SPEAKER ( Mr Andrews ): The question is that the amendment be agreed to.

Question negatived.

The SPEAKER: The question is that this bill be read a second time.

Mr DREYFUS (Isaacs—Deputy Manager of Opposition Business) (17:42): by leave—I move opposition amendments (1) to (40) together:

(1) Clause 3, page 2 (lines 14 to 17), omit the paragraph beginning "The Minister may make", substitute:

An issuing authority, on application by the Minister, may make an order (called a temporary exclusion order) that prevents a person from entering Australia for a specified period, which may be up to 2 years. An order cannot be made unless certain criteria are met, and it can be revoked.

(2) Clause 3, page 2 (lines 18 to 22), omit the paragraph beginning "The Minister must refer".

(3) Clause 3, page 3 (lines 6 and 7), omit "and is satisfied of specified matters", substitute ", is satisfied of specified matters and an issuing authority has approved the conditions".

(4) Clause 4, page 3 (after line 19), after the definition of Australian travel document, insert:

interim temporary exclusion order means an order made under subsection 12A(1).

issuing authority means a person appointed under section 23.

(5) Clause 4, page 3 (line 23), omit the definition of reviewing authority.

(6) Clause 4, page 3 (line 25), omit "subsection 10(1)", substitute "subsection 10(2)".

(7) Clause 8, page 5 (line 6), before "A person", insert "(1)".

(8) Clause 8, page 5 (after line 10), at the end of the clause, add:

(2) The fault element for paragraph (1) (a) is knowledge.

(9) Heading to clause 10, page 6 (line 4), omit "Making", substitute "Applying for, and making,".

(10) Clause 10, page 6 (line 5) to page 7 (line 21), omit subclauses 10(1) to (5), substitute:

(1) The Minister may apply to an issuing authority for a temporary exclusion order in relation to a person only if:

(a) subsection (3) applies in relation to the person; and

(b) the Minister meets the requirements of subsections (4), (5) and (5A).

(2) An issuing authority may make a temporary exclusion order in relation to a person only if:

(a) subsection (3) applies in relation to the person; and

(b) the issuing authority meets the requirements of subsections (4), (5) and (5A).

(3) This subsection applies to a person if:

(a) the person is located outside Australia; and

(b) the person is an Australian citizen; and

(c) the person is at least 14 years of age; and

(d) a return permit is not in force in relation to the person.

(4) The Minister or issuing authority meets the requirements of this subsection if the Minister or issuing authority is satisfied, on reasonable grounds, that making the order would substantially assist in one or more of the following:

(a) preventing a terrorist act;

(b) preventing training from being provided to, received from or participated in with a listed terrorist organisation;

(c) preventing the provision of support for, or the facilitation of, a terrorist act;

(d) preventing the provision of support or resources to an organisation that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in subsection 102.1(1) of the Criminal Code.

(5) The Minister or issuing authority meets the requirements of this subsection if the Minister or issuing authority is satisfied, on reasonable grounds, that the person has:

(a) committed, prepared to commit or instigated a terrorist act; or

(b) facilitated the commission, preparation or instigation of a terrorist act; or

(c) given encouragement to the commission, preparation or instigation of a terrorist act; or

(d) given support or assistance to individuals who are known or believed by the person to be involved in conduct falling within paragraph (5) (a).

(5A) The Minister or issuing authority meets the requirements of this subsection if the Minister or issuing authority, before applying for, or making, a temporary exclusion order in relation to a person, has regard to the following:

(a) in a case where the person is 14 to 17 years of age:

   (i) the protection of the community as the paramount consideration; and

   (ii) the best interests of the person as a primary consideration;

(b) in every case:

   (i) whether the person has a lawful right to remain, or to enter and remain, in a country other than Australia during that period;

   (ii) if the person has no lawful right to remain, or to enter and remain, in a country other than Australia during that period—the likelihood of the person being detained, mistreated or harmed if the person cannot enter Australia until the end of that period.

(5B) In determining what is in the best interests of a person for the purposes of subparagraph (5A) (a) (ii), the Minister or issuing authority must take into account the following matters:

(a) the age, maturity, sex and background (including lifestyle, culture and traditions) of the person;

(b) the physical and mental health of the person;

(c) the benefit to the person of having a meaningful relationship with his or her family and friends;

(d) the right of the person to receive an education;

(e) the right of the person to practise his or her religion;

(f) any other matter the Minister or issuing authority considers relevant.

(11) Clause 10, page 7 (line 22), omit "the Minister", substitute "the issuing authority".

(12) Clause 10, page 8 (lines 9 and 10), omit paragraph 10(6) (i), substitute:

(i) state the judicial review rights in relation to the decision to make the order and any related return permit; and

(j) state the grounds for deciding that the criteria in subsection (2) for the making of the order have been met (excluding any information that is likely to prejudice national security).

(13) Clause 10, page 8 (lines 14 and 15), omit "the Minister must cause such steps to be taken as are, in the opinion of the Minister,", substitute "the issuing authority must provide a copy of the order to the Minister and the Minister must cause such steps to be taken as are".

(14) Page 8 (after line 21), after clause 10, insert:

10A Contents of applications for a temporary exclusion order

An application by the Minister under subsection 10(1) for a temporary exclusion order in relation to a person must:

(a) be made either:

   (i) in writing (other than writing by means of an electronic communication); or

   (ii) if the Minister considers it necessary because of urgent circumstances, orally in person or by telephone, or by fax, email or other electronic means of communication; and

(b) set out the facts and other grounds on which the Minister considers the temporary exclusion order should be made; and

(c) specify the period for which the temporary exclusion order should remain in force and set out the facts and other grounds on which the Minister considers that the order should remain in force for that period; and

(d) set out the information that the Minister has about the person's age; and

(e) set out the outcomes and particulars of all previous applications for temporary exclusion orders made in relation to the person; and

(f) set out the outcomes and particulars of all previous applications for variations of temporary exclusion orders made in relation to the person; and

(g) set out the outcomes of all previous applications for revocations of temporary exclusion orders made in relation to the person; and

(h) set out any other matter the Minister considers relevant.

(15) Clause 11, page 8 (line 23), after "The Minister", insert "or an issuing authority".

(16) Clause 11, page 8 (line 25), after "the Minister's", insert "or the issuing authority's".

(17) Clause 11, page 8 (after line 29), after subclause 11(2), insert:

(2A) If an issuing authority revokes a temporary exclusion order under subsection (1), the issuing authority must notify the Minister as soon as practicable after revoking the order.

(18) Clause 11, page 8 (line 31) to page 9 (line 1), omit "the Minister must cause such steps to be taken as are, in the opinion of the Minister,", substitute "or being notified of the revocation of a temporary exclusion order under subsection (2A), the Minister must cause such steps to be taken as are".

(19) Clause 11, page 9 (line 9), after "the Minister", insert "or issuing authority".

(20) Clause 12, page 9 (after line 19), after subclause 12(1), insert:

(1A) As soon as practicable after an application is made under subsection (1), the Minister or Department must provide a copy of the application to the issuing authority who made the temporary exclusion order, or if the issuing authority is unavailable, another issuing authority.

(1B) If the Minister or Department gives a copy of the application to another issuing authority, the Minister or Department must cause such steps to be taken as are necessary to ensure that the other issuing authority has all the information that the issuing authority who issued the temporary exclusion order had when the order was issued.

(21) Page 10 (after line 15), after clause 12, insert:

12A Interim temporary exclusion orders

(1) If the Minister is satisfied that, because of urgent circumstances, it is necessary that a temporary exclusion order in relation to a person comes into force immediately, the Minister may make an order (an interim temporary exclusion order) under this subsection.

(2) The Minister must not make an interim temporary exclusion order under subsection (1) in relation to a person unless:

(a) subsection 10(3) applies in relation to the person; and

(b) the Minister meets the requirements of subsections 10(4), (5) and (5A).

(3) If the Minister makes an interim temporary exclusion order, the Minister must, as soon as practicable, apply for a temporary exclusion order in relation to the person under subsection 10(1).

(4) For the purposes of applying the other provisions of this Act in relation to an interim temporary exclusion order until a decision is made on the related application under subsection (3) of this section:

(a) the interim temporary exclusion order is taken to be a temporary exclusion order made under subsection 10(2); and

(b) any reference to an issuing authority is taken to be a reference to the Minister.

(22) Clause 13, page 10 (line 16) to page 11 (line 5), omit clause 13, substitute:

13 Period for which a temporary exclusion order etc. is in force

(1) A temporary exclusion order in relation to a person comes into force immediately after an issuing authority makes the temporary exclusion order in relation to the person.

(2) A temporary exclusion order in relation to a person remains in force until the earlier of the following occurs:

(a) the period specified for the purposes of paragraph 10(6) (d) ends;

(b) the order is revoked under section 11.

(3) An interim temporary exclusion order comes into force immediately after the Minister makes the interim temporary exclusion order in relation to the person.

(4) An interim temporary exclusion order in relation to a person remains in force until the earlier of the following occurs:

(a) an issuing authority makes a decision on the related application made by the Minister under subsection 12A(3);

(b) the Minister issues a return permit to the person under subsection 15(1).

(23) Clause 14, page 11 (line 6) to page 13 (line 26), omit the clause.

(24) Clause 15, page 14 (line 10), omit the note, substitute:

Note 1: See section 18 for how an application for a return permit can be made.

Note 2: There are judicial review rights in relation to decisions under this subsection.

(25) Clause 15, page 14 (lines 19 to 25), omit "within a reasonable period" (wherever occurring), substitute "as soon as practicable".

(26) Clause 16, page 17 (lines 7 to 10), omit subclause 16(7).

(27) Clause 16, page 17 (line 14), omit "(to the extent known to the Minister)".

(28) Clause 16, page 17 (after line 22), after subclause 16(8), insert:

(8A) Before the Minister imposes a condition mentioned in subsection (9) or (10) on a return permit, the Minister must request, in writing, the approval of an issuing authority to impose the condition.

(8B) A request under subsection (8A) must set out the facts and other grounds on which the Minister considers the condition should be imposed on the return permit.

(8C) In considering whether to approve the condition, subsections 16(3) to (8) are taken to apply to the issuing authority in the same way as those subsections apply in relation to the Minister.

(8D) To avoid doubt, the Minister must not impose the condition if the issuing authority does not approve the condition.

(29) Clause 17, page 20 (lines 18 and 19), omit ", in the opinion of the Minister,".

(30) Clause 17, page 20 (after line 24), at the end of the clause, add:

(7) Subsections 16(3) to (8D) are taken to apply to a decision under subparagraph (1) (a) (i) of this section to vary the period during which the permit is in force in the same way as those subsections apply to a condition imposed on a permit under that section.

(31) Clause 20, page 22 (after line 32), at the end of clause 20, add:

(3) The fault element for paragraph (1) (a) is knowledge.

(32) Heading to clause 23, page 25 (line 3), omit "Reviewing authority", substitute "Issuing authority".

(33) Clause 23, page 25 (line 5) to page 26 (line 2), omit "a reviewing authority" (wherever occurring), substitute "an issuing authority".

(34) Clause 23, page 26 (lines 3 to 8), omit "reviewing authority" (wherever occurring), substitute "issuing authority".

(35) Clause 23, page 26 (line 10), omit "A reviewing authority", substitute "An issuing authority".

(36) Heading to clause 24, page 26 (line 14), omit "a reviewing authority", substitute "an issuing authority".

(37) Clause 24, page 26 (line 16), omit "a reviewing authority", substitute "an issuing authority".

(38) Clause 25, page 27 (line 13), omit "making", substitute "applying for".

(39) Clause 30, page 28 (line 24) to page 29 (line 3), omit the clause.

(40) Clause 31, page 29 (lines 12 to 16), omit paragraphs 31(2) (c) and (d).

These amendments to the Temporary Exclusion Orders bill ensure that the bill conforms to the unanimous and bipartisan recommendations of Labor and government members of the intelligence committee—no more, no less. It is extremely disappointing that the Minister for Home Affairs has come into this House and continued with his false assertion that the government is agreeing to all but two of the committee's 19 recommendations. In fact, there are 10, or possibly 11, of the unanimous recommendations of the committee that have not been agreed to by the government. And it is also disappointing that the minister asserted just a moment ago that if the government were to agree to the amendments recommended by the Parliamentary Joint Committee on Intelligence and Security, it would somehow increase the risk of terrorism in the community. He hasn't explained that assertion. It is a baseless assertion. It is not one we heard from the intelligence agencies or the Australian Federal Police during the course of the hearings of the intelligence committee.

I will just go through each of the recommendations of the Parliamentary Joint Committee on Intelligence and Security that the government has failed to implement, and set out how we've sought to give effect to the recommendations—which, I would stress again, were made jointly by six Liberal senators and House members of the committee and five Labor members of the committee on a unanimous basis. It's disappointing, indeed, that we haven't seen the member for Canning, the chair of the committee, even attempt to defend the unanimous recommendations that the committee he chaired made.

The first recommendation goes to recommendation 1, and amendment (10) relates to that. That first recommendation of the committee was to amend the bill to require the minister, before making a temporary exclusion order that requires the person to surrender their Australian passport or to be prevented from applying for obtaining a new Australian passport, to have regard, to the extent that that information is available, to (1) whether the person has a lawful ability to stay in their current location for the duration of the order; (2) whether the person has a lawful ability to enter a third country—for example, due to holding a passport or residency visa for that third country—and (3) the likelihood of the person being detained, mistreated or harmed if the person has no lawful ability to stay in their current location and no lawful ability to enter a third country for the duration of the order.

The government claims that it has implemented this recommendation, but that is not proved. The purpose of the recommendation is absolutely clear. It's self-explanatory. You'd think the government would have instantly embraced this recommendation—which, like all the other recommendations made by the committee, is a practical recommendation, one which makes the bill more workable. The government's amendments say that the minister should consider those matters before imposing a condition on a return permit. The committee's specific recommendation was that the matters I've just gone through have to be considered before the minister imposes a temporary exclusion order.

Was this a mistake? Is there some reason the government says those matters shouldn't be considered before the minister issues a temporary exclusion order? Does the government even understand the difference between a return permit and a temporary exclusion order? We don't know the answer to those questions, because instead of engaging with Labor, instead of engaging with the parliament, instead of doing this in a public and appropriate manner the government has falsely claimed that it has implemented the first recommendation of the committee. That is, in a very literal sense, not true. Amendment (10) would implement the committee's recommendation as it was made.

Recommendation 2 is dealt with in amendment (25). The second recommendation of the committee was to amend the bill to require the minister to give a return permit to a person as soon as practicable upon receipt of an application or when a person is to be deported to Australia. The bill as presented to the parliament amends the previous version of the bill so that the minister is only required to give a return permit within a reasonable period. 'As soon as practicable' is not the same test— (Time expired)

The DEPUTY SPEAKER ( Mr S Georganas ): The question is that the amendments be agreed to. The member for Isaacs.

Mr DREYFUS: as 'within a reasonable period'. We saw earlier this week the Minister for Home Affairs—this same Minister for Home Affairs—table a report on the retention of metadata by agencies between July 2016 and June 2017. Presumably this minister believes that tabling a report two years late is within a reasonable period. Labor does not. That's why not only did the Labor members but also the government members of the intelligence committee unanimously recommend that the appropriate amendment to be made to this legislation was to require that a return permit be given as soon as practicable upon receipt of an application. So, amendment (25) that's before the House implements the committee's second recommendation by requiring the minister to give a return permit as soon as practicable.

I come now to recommendations 3 and 12 made by the Parliamentary Committee on Intelligence and Security. They're dealt with in amendment (10). The third and 12th recommendations of the committee would have seen the bill amended to prevent the making of a temporary exclusion order unless the decision-maker reasonably suspects that the person is or has been involved in terrorism-related activities outside Australia and making the order would substantially assist in preventing the provision of support for, or the facilitation of, a terrorist act. Recommendation 12 as made by the committee would have also prevented the minister from acting as nothing more than a rubber stamp for security assessment.

These recommendations were rejected. They have been rejected by the government, and the particular rejection is very telling. Over the last several days, in talking about this bill, the government has said that the targets of this bill are people who have been fighting with groups like the Islamic State group in Syria, but that directly contradicts what the minister's own department, the Department of Home Affairs, told the intelligence committee in public hearings. The department told the committee in the public hearings that any person who is known to have engaged in active fighting in conflict zones in Syria or Iraq or both would not be subject to a temporary exclusion order. Such a person would be allowed to come back to Australia, arrested at the airport, charged, put on trial and held in jail in the meantime while that trial was pending. The government has to be honest and straightforward about what this bill actually does and the problem that it's actually seeking to address. The rejection of this particular proposed amendment—the recommended amendment by the committee—illustrates the fact that, to date, the government has not been open, honest and straightforward about these matters.

As to the second part of these recommendations, which would have prevented the minister from acting as a rubber stamp, we know this Minister for Home Affairs is lazy. We also know that when he's required to make a decision under an act of parliament, he often gets the decision wrong. The host of cases under the Migration Act where this minister's decisions have been set aside by a tribunal or by a court is evidence of that. The Intelligence and Security Committee quite sensibly proposed an amendment that would actually require the minister to turn his mind to the task of issuing an exclusion order. We can understand why this lazy and incompetent Minister for Home Affairs would not like that part of recommendation 12, but the fact that his colleagues would agree to back his position, which is to ignore the recommendations of the intelligence committee to give him a licence to not do his job, is disappointing to say the least.

There's something else about recommendation 12 that I need to mention. The government has repeatedly said that this legislation is based on, and follows, the United Kingdom's law for temporary exclusion orders that the United Kingdom parliament managed to pass in 2015, some four years ago. If ever we wanted better proof of the incompetence of this government in taking four years to bring this legislation to the parliament, it is that they cannot even understand the basis for their own legislation which directly here, in relation to this matter, does not follow the model that has been provided to us by the United Kingdom parliament, in that their legislation directs itself and directs the attention of the issuing authority to whether or not a particular proposed subject for a temporary exclusion order had, in fact, been involved in terrorism activities. (Time expired)

The DEPUTY SPEAKER ( Mr S Georganas ): The question is that the amendments be agreed to. The member for Isaacs.

Mr DREYFUS: The fourth recommendation of the committee was to amend the bill so that, in determining the best interests of a child before issuing a temporary exclusion order, the minister would have to take into account the child's age, maturity, sex, background, physical and mental health, the right to receive an education and other matters. The government's amendments would allow the minister to be wilfully blind to those matters because they would allow the minister to say, 'Those matters are not relevant.' But the committee's recommendation was that those matters are relevant, that it should not be for the minister to decide whether or not those matters are relevant but, rather, that the act should so provide. Amendment 26 addresses this issue and would implement recommendation 4 in full.

I come to recommendation 5. This fifth recommendation of the committee was to amend the bill to require a temporary exclusion order to set out, first, that the issuing authority is satisfied of the matters mentioned in section 10; second, a summary of the grounds on which the order is made, excluding information that's likely to prejudice national security; and third, the person's rights of review in relation to the order and any return permit that is made. Again, this recommendation was not implemented by the government in the bill that's been brought to the parliament. The bill does not require the temporary exclusion order to state the grounds on which the order is made so that someone who's given an exclusion order would not even know why, nor does it require the order to set out the person's right to review. Amendment (12) in the set before the House would implement this recommendation in full.

I digress to remind the House of the extreme nature of the power with which we are presently dealing. It is a power which Labor accepts should be part of the discretionary armoury, if I can put it like that, available to the government of Australia and its agencies in order to manage the return of Australians to Australia who have been engaged in terrorism activity overseas and who potentially pose some risk to the Australian community. Managing their return is an appropriate matter, but the power is such an extreme one. We can see that the extreme nature of the power has given rise to very serious doubts about the constitutionality of the power, as raised by people as eminent as Mr Arthur Moses, the president of the Law Council, or Professor Helen Irving from the University of Sydney. The government is clearly not even going to engage with that at all, because it's not providing to this parliament any evidence of the constitutionality of the legislation.

It is an extreme power with which we are dealing. The committee's recommendations go to making the exercise of the power appropriately subject to safeguards. It goes to making the exercise of the power more workable. Had the government accepted the recommendations that the committee made, it would have put in place some matters which to me and I think any fair-minded person would seem absolutely self-evident: that an Australian citizen who has been kept from returning to their country—because that is what this power is about—should know the reason why the exclusion order has been made.

I come to recommendation 7; that's the subject of very many of the amendments that are in the set—(10), (14), (17), (20), (22), (28) and (30). This seventh recommendation of the committee was to amend the bill to require a temporary exclusion order, in effect, so that a temporary exclusion order may only be issued by an issuing authority, such as a retired judge, and that an issuing authority must approve conditions in a return permit. Again, this would have brought the bill more in line with the UK legislation, which the government claimed—falsely—their bill is based on. Members opposite—including some of the members opposite who participated in the making of the recommendation, namely the member for Berowra and the member for Canning, the chair of the committee—have sought to mischaracterise this recommendation as it being a recommendation about judicial review. They have then falsely claimed that the government has implemented it in principle.

First, not to get too lawyerly about it, a retired judge is not a member of the judiciary. The clue is in the word retired. The reviewing authority would in fact be a member of the executive. Secondly, the government's bill does not create an issuing authority but would instead create a reviewing authority with extremely limited powers of review. Such an authority would not serve as a check on the power of the minister at all. (Time expired)

The DEPUTY SPEAKER ( Mr S Georganas ): The question is that the amendments be agreed to.

Mr DREYFUS: To make it worse, the government's amendments give rise to an additional ground of constitutional invalidity. This is a change that the government is itself making between the bill in the form in which it was brought to this place in February and the bill in the form in which it now takes and is before the parliament. That the bill has changed gives rise to an additional ground of constitutional invalidity.

We know from the Law Council and from others that the bill is at serious risk of being unconstitutional because it infringes the constitutional right of abode. In its half-baked and sloppy attempt to implement recommendation 7 'in principle'—because that's the government claim—the government has created an additional constitutional problem because, in one view, the 'reviewing authority', who would be a member of the executive, is purporting to exercise powers that the Constitution vests exclusively in the judiciary. That contravenes the separation of powers, a fundamental principle that this Minister for Home Affairs seems to have little time for. Most of Labor's amendments go to addressing this recommendation—for instance, replacing every use of the words 'reviewing authority' with the words 'issuing authority'. Some of the key substantive amendments that go to this recommendation are amendments (10), (14), (17), (20), (22), (28) and (30).

To implement another part of recommendation 7, amendment (21) would allow the minister to issue an interim temporary exclusion order in urgent circumstances. In those cases, the minister would then have to obtain the approval of the issuing authority as soon as practicable. Again, this was simply a practical suggestion that the committee had put forward and that the government, without explanation, is rejecting.

Recommendation 10 was a very simple recommendation. The committee recommended that the bill be amended to clarify that a person may seek judicial review of a decision of the minister to grant or refuse an application for a return permit. Incredibly, this was rejected by the government on the ground that it was unnecessary. The government has argued it's unnecessary to expressly provide for judicial review in these circumstances by pointing to the fact that a minister must accept an application for a return permit, but again that is not true. Under the bill as presented to this parliament, the minister must give a return permit if a person has applied to the minister in the prescribed form and manner or the person is to be or is being deported to Australia. Implicitly, the minister may refuse to give a return permit if he does not believe the person has applied in an appropriate manner, and the minister may or may not be correct about that. Amendment (24) makes it clear that there are judicial review rights in relation to a decision to grant or refuse an application for a return. This is pretty basic stuff. As with all of the PJCIS recommendations, it would make the bill clearer and more workable, and the government's rejection of this one is inexplicable.

I come to recommendation 11. The committee's 11th recommendation would see the bill amended so that, in any prosecution for a breach of an offence provision under the bill, the prosecution must prove that the defendant had knowledge of the existence of the temporary exclusion order or of the relevant return permit condition as applicable. As a general principle—and I would hope that every single member of this place would absolutely subscribe to this general principle—people should not be prosecuted for breaching an order they are unaware of, especially in circumstances where such an order can be issued on the basis of the minister's belief or satisfaction of certain matters and breach of the order can result in a prison sentence. The government has entirely failed to present a coherent argument as to why that general principle—which, I say again, I would sincerely hope every member of the parliament would agree to—should not be adhered to in these circumstances. While it's true that a person may not be aware of an exclusion order at the time it's issued—because, for example, the person's in a remote location or the government doesn't know where the person is—any such person who tries to return to Australia would presumably be made aware of the order when he or she tries to board a plane, for example. Is the government really saying that a person who is subject to one of these temporary exclusion orders would not be flagged on an airline's computer system? The government has to explain why, in a practical sense, requiring the prosecution to prove actual knowledge of the existence of the order is unworkable; it is not enough just to assert it. That's what the government did in its submission to the intelligence and security committee, and no member of that bipartisan committee, Labor or Liberal, was convinced. That's why the committee unanimously made recommendation 11, which the government is rejecting. Amendment (31) would implement that recommendation of the committee. (Time expired)

The DEPUTY SPEAKER: The question is that the amendments be agreed to. The member for Isaacs.

Mr DREYFUS: So there you have it: nine recommendations of the bipartisan intelligence and security committee that were not implemented by the government and that these amendments that are now before the chamber would implement in full. I would invite the government to agree to these amendments, because all of them improve the legislation that is before the House and all of them are entirely consistent with and fulfilling the recommendations made on a bipartisan basis by six Liberal members of the committee and five Labor members of the committee. It's extremely disappointing that not even those Liberal members of the committee have seen fit to back in the recommendations that they made as recently as April.

Finally, there's a further amendment to the other bill, the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019, which I'll move separately. That amendment would implement recommendation 16 of the committee, which the government has also failed to implement, without explanation.

The SPEAKER: The question is that the amendments be agreed to.

Mr DUTTON (Dickson—Minister for Home Affairs) (18:15): by leave—I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Mr DREYFUS (Isaacs—Deputy Manager of Opposition Business) (18:18): by leave—I move:

(1) Schedule 1, page 3 (after line 9), after item 1, insert:

1A At the end of Part 4

Add:

30A Certain reports and briefings

(1) If:

(a) a report by the Independent National Security Legislation Monitor referred to in subsection 29(1) or 30(1) relates to a review of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019, or a report relating to that Act is otherwise prepared in the course of the Independent National Security Legislation Monitor carrying out the functions in subsection 6(1); and

(b) the Committee on Intelligence and Security requests, in writing given to the Independent National Security Legislation Monitor, a copy of the report;

the Independent National Security Legislation Monitor must give the Committee a copy of the report, or a copy of extracts from the report that deal with that Act.

(2) If the Committee on Intelligence and Security requests a briefing in relation to the report or extracts, the Independent National Security Legislation Monitor must give the Committee such a briefing.

As with the other recommendations made by the Joint Parliamentary Committee on Intelligence and Security, recommendation 6 of the committee was a unanimous recommendation made by all six of the Liberal members of the committee and the five Labor members of the committee. Recommendation 16 is to the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019 rather than to the substantive bill, because it relates to a particular aspect of the interaction between the Independent National Security Legislation Monitor and the new powers that have been conferred by this legislation. What recommendation 16 of the committee was directed at was enabling the Independent National Security Legislation Monitor to provide a copy of the reports made by the monitor at the same time as the reports are provided to the Prime Minister.

The committee also recommended that the monitor should be empowered to brief the Parliamentary Joint Committee on Intelligence and Security on his or her findings. Honourable members will bear in mind that this very national security legislation monitor is the agency that this government was committed to abolishing when it came to office in 2013. It was only after a number of the crossbenchers in the Senate were persuaded of the worth of the Independent National Security Legislation Monitor, an agency created by the previous Labor government, that the then Abbott government was prevented from abolishing in Independent National Security Legislation Monitor.

We've seen over the course of successive years, since this government tried to abolish in Independent National Security Legislation Monitor, the worth of the Independent National Security Legislation Monitor. It's a very useful reviewing mechanism. It's a very useful safeguard. It's a very useful level of scrutiny that's provided. All three of the national security legislation monitors to date have been very senior barristers, the first being Bret Walker SC; the second being Roger Giles QC, a former judge of the Court of Appeal in New South Wales; and the third eminent barrister, occupying the position as we speak, being James Renwick SC.

This recommendation went directly to the oversight of the use of these new temporary exclusion orders, or the new powers, that would be created by this legislation. The oversight of these new powers would be via the parliament through the Parliamentary Joint Committee on Intelligence and Security. The government has not accepted this recommendation. That's an extraordinary non-acceptance. Again, as with a whole range of the recommendations that were made by the committee in respect of the substantive bill, the government—neither through the Prime Minister nor through this Minister for Home Affairs—has not sought to explain the failure of the government to accept the unanimous recommendations of the committee, which is chaired by the member for Canning, a Liberal member of parliament, and on which there is a majority of Liberal members—six out of 11.

It is particularly surprising in the case of recommendation 16 that the government has chosen not to accept it. Recommendation 16 is consistent with recommendation 23, paragraph 2 of the 2017 Independent intelligence review, which was conducted by Michael L'Estrange and Stephen Merchant. That's a regular review. They take place roughly five or seven years apart. The 2017 Independent intelligence reviewwas, as I said, conducted by very senior former public servants, Michael L'Estrange and Stephen Merchant. It recommended that the role of the Parliamentary Joint Committee on Intelligence and Security— (Time expired)

The DEPUTY SPEAKER ( Mr S Georganas ): The question is that the amendments be agreed to.

Mr DREYFUS: I will just go to what the 2017 Independent intelligence review recommended. They recommended that:

The role of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) be expanded—

Which was so that the committee could:

… request a briefing from the Independent National Security Legislation Monitor … to ask the Monitor to provide the PJCIS with a report on matters referred by the PJCIS, and for the Monitor to provide the PJCIS with the outcome of the Monitor's inquiries into existing legislation at the same time as the Monitor provides such reports to the responsible Minister …

This government doesn't like safeguards; this government doesn't like scrutiny; it doesn't like any independent bodies being involved in reviewing any of its actions. And that's presumably why the government is not acting on this recommendation either, as it didn't act on the other recommendations of the intelligence committee to which I've already referred.

But what is really surprising is that, when the 2017 Independent Intelligence Review was released to the public, the then Prime Minister, Malcolm Turnbull, as he stood next to the minister who is now the Minister for Home Affairs, said that the government had accepted the recommendations of the review. Now, two years on, in rejecting another part of the recommendations, the government says it's still considering the recommendations of the 2017 Independent Intelligence Review. So what's changed? Maybe what's changed is that Prime Minister Turnbull got the sack in a coup led by the present Minister for Home Affairs. Maybe that's the reason why the same government, having said that it accepted the recommendations of the national intelligence review, is now saying it doesn't, because it's still considering it. Maybe that's what changed. I would suggest to this parliament that, almost two years after the public release of the independent national intelligence review, in 2017, it's time for the Minister for Home Affairs to stop pretending to consider things and start doing his job. Yesterday we saw the extraordinary delay that the minister engaged in to release, some two years late, the statistics on the metadata scheme. Let's hope that we don't have to wait another two years for the already completed stats for the next year of the metadata scheme.

But what we have here is an amendment that would fully implement the very sensible, very modest and unanimously agreed 16th recommendation of the Intelligence and Security Committee, namely: an amendment which would, in accordance with the recommendation of the intelligence committee, allow the intelligence committee to do the job that the parliament set it up to do, to do the job that the Independent Intelligence Review said that it should do and said should be expanded, in the form of it being able to engage with new powers when new powers are conferred on the government or the government's agencies—that there be adequate scrutiny of new powers when they're created, that there be adequate scrutiny by the Independent National Security Legislation Monitor, and that the Parliamentary Joint Committee on Intelligence and Security should be able to interact with that other scrutiny process. It's a scrutiny process that has already proved its worth. It's a scrutiny process that we've seen since the Independent National Security Legislation Monitor was created in 2010. It's in the form of annual reports by the Independent National Security Legislation Monitor and in the form of briefings provided by the Independent National Security Legislation Monitor—all three of them—to the Parliamentary Joint Committee on Intelligence and Security. It's a process that has improved the visibility of the use of powers. It has improved public confidence in the use of those powers—many of them extreme powers that have been given to agencies. Public confidence is a very, very important aspect of any national security regime. This government doesn't appear to care at all about building public confidence. Building public confidence in the work done by our agencies to keep us safe and building public confidence in the way extreme powers are often used, and often in secret, is a very important part of any national security system in what should be an open and participatory democracy such as our own.

To have this government reject a perfectly simple recommendation, unanimously made by Liberal and Labor members of the committee, without explanation is absolutely symptomatic of the inadequate and incompetent approach this government has taken to the presentation of this bill to the parliament. Not content with waiting some 3½ years past the time at which the United Kingdom parliament had provided a model of this kind of power in the form of their temporary exclusion orders legislation, not content with announcing late last year, in late 2018—presumably the Minister for Home Affairs was too busy knocking off the sitting Prime Minister—not content with waiting until then to even announce that the government was going to do something, the government had us wait until February of this year for it to introduce the previous form of the bill. At that time the government said it was a matter that the intelligence committee should consider urgently. The intelligence committee did consider it urgently. It reported to the parliament shortly before the election was called and in its report made some 19 recommendations, which the government, regrettably, is now self-evidently—because of the position taken by this Minister for Home Affairs in coming into the parliament—thumbing its nose at. That's the only way in which it can be put.

The government has failed to explain why it is not giving effect to some 10 or 11 recommendations of the committee. The government is not even showing the respect this parliament deserves, let alone the respect the Australian community deserves. When we've had a process, when the process has been conducted urgently by the intelligence committee, when there are sensible, practical recommendations that you've only got to read to see how sensible and practical they are and when you've got recommendations that will improve the working of the legislation, that will make Australians safer, that will build public confidence in the operation of these new powers, it's incredibly disappointing to see the attitude that has been adopted by the Prime Minister and by this Minister for Home Affairs, who seem to think—on this occasion as, regrettably, on so many other occasions—that national security is their plaything, that national security is something they can use to score cheap political points, that national security is something they can bring to this parliament to, in their words, 'set up a test for Labor'.

Well, enough of that. Enough of this setting up a test for Labor. We call on the government to legislate and to use the processes of this parliament for the national interest of this country. We call on this government to actually consider the national interest and to stop its pathetic political rhetoric of 'this legislation sets a test for Labor'. Before you get to say that, you've actually got to explain what the bill's for. Before you get to say that, you've actually got to explain why you're choosing to ignore the unanimous recommendations of a bipartisan committee. Before you get to say that, you have to actually explain why the legislation is needed. This incompetent Minister for Home Affairs has done none of those things.

I urge the government to agree to this amendment to the consequential amendments bill that is now before the House. It's your last opportunity to do the right thing. Again, it's disappointing that the chair of the committee, the member for Canning, hasn't seen fit to back in the recommendations that he agreed to in April and that the member for Berowra or the member for La Trobe haven't seen fit to come into this place and back in the recommendations they agreed to. It's another opportunity the government should take to agree to this amendment.

Mr DUTTON (Dickson—Minister for Home Affairs) (18:34): I rise to say thankyou to all those honourable members who have contributed to this debate. This is a very important debate. I acknowledge the contribution of the member for Isaacs. Nobody who reads the Hansard of this debate will truly appreciate how much the member for Isaacs enjoys the sound of his own voice.

Many of the claims he has made are completely spurious and factually incorrect. Sadly for the Labor Party, for a long period of time, they have used the PJCIS as a management tool for the member of Isaacs. It is an opportunity for Labor to try and move him from the caucus, where it must be painful for any attendee to listen to his regular bombastic contributions. The fact is that that will no longer be tolerated.

This government is operating in the national interest when it comes to national security matters. We are not going to have our bills that are important to keep Australians safe watered down by this individual. That's what might have happened in the past, and perhaps the member for Maribyrnong used that as an opportunity to try and keep this member for Isaacs in check, but this government will not tolerate it. We are going to work with the committee. We will look at the recommendations made by the committee in relation to the relevant legislation that they might explore, and we will ultimately decide, in our country's interests, in an attempt to keep Australians safe, which of those recommendations we accept.

Ultimately, the government has been elected on a mandate to provide legislation to this parliament to protect Australians from a very real threat. We know that, since 2012, around 230 Australians have travelled to Syria or Iraq to fight in the name of ISIL. Though many have died in their attempts, many of those who survived intend to return to our country. Indeed, the advice of our national security agencies is that, following the recent collapse of Islamic State's territorial control in Syria and Iraq, many of these people will be seeking to return to Australia in the very near future.

The threat that is beyond our shores, as we know, is also here in Australia. In fact, since September 2014, when the national terrorism threat level was raised, our police and security agencies have thwarted 16 attempted attacks on our own soil. Tragically, seven were not thwarted, and innocent people going about their daily lives were killed and injured. There are around 50 offenders now in Australian prisons serving sentences for terrorism related offences. It's against this backdrop that the government has introduced this bill and advocates for its passage in order to keep Australian communities safe from those who seek to do us harm. That will continue to be this government's No. 1 priority.

The government is committed to putting in place all measures necessary to ensure the safety of Australians. We must do all we can to protect our communities from persons whose intent is to cause death and/or destruction of the most heinous kind. I'm confident that I speak for members on both sides—or the vast majority of members on both sides of this chamber—when I say that we will never hesitate to stand up for Australians and we will never soften our stance against terrorism.

This bill recognises and responds to the significantly increased risk that Australia now faces from returning foreign fighters. The TEO scheme, which the bill establishes, will ensure that, if an Australian of counterterrorism interest does seek to return to Australia, it is with adequate forewarning and into the hands of authorities. The TEO scheme will ensure that agencies have sufficient time to assess the potential risk of an Australian citizen of counterterrorism interest before that person returns to Australia. The TEO scheme will also assist our national security and law enforcement agencies to monitor such individuals when they do ultimately return to Australia. Put simply, the TEO scheme is designed to ensure that authorities can manage those returns in a way that keeps the Australian community safe.

The minister may make a TEO that prohibits an Australian of counterterrorism interest from entering Australia for up to two years, except with a return permit. The minister must issue a return permit within a reasonable period if a person applies or if a person is being deported or extradited to Australia. The return permit may contain conditions such as specifying when and how the person must enter Australia. It may also specify conditions which the person must comply with once in Australia, such as requiring the person to give notice of where they live or where they work. A return permit remains in force for up to 12 months after the person's re-entry into Australia. It will be an offence punishable by up to two years imprisonment for a person to return to Australia in breach of a TEO or return permit or to fail to comply with conditions of a return permit. The bill contains a range of appropriate safeguards. The government has been mindful in developing the bill to ensure that it appropriately addresses the needs to protect the community from foreign fighters while ensuring oversight and accountability on the TEO decision-making process.

The legislation is the product of careful consideration. It is based on the advice of our security agencies and the Solicitor-General and is modelled on the UK's TEO scheme. The legislation has been reviewed by the committee and the committee's recommendations have been substantially incorporated into the bill. All TEOs will be subject to review by an independent reviewer and that person, or that authority, is either a former judge or a serving senior AAT member. Conditions imposed under a return permit will be tailored to the individual in accordance with the risk they pose to the community. Special safeguards apply to persons aged 14 to 17.

In conclusion, I would like to thank the Parliamentary Joint Committee on Intelligence and Security for its recommendations. As I say, the bill substantially reflects the recommendations of the PJCIS, including to provide four significant additional safeguards and independent oversight. I also thank the colleagues across both sides of the chamber for recognising the need for these important measures.

It's important to note that the member for Isaacs, the Labor Party representative in this debate, has moved 41 amendments to this bill, has claimed it to be unconstitutional and has opposed this bill at every step, right up until the 11th hour to the point where the member for Isaacs realised—or I suspect the Leader of the Opposition realised—that there was support from the crossbench in the Senate for this bill to secure passage. All of a sudden, the member for Isaacs decided to support this bill. Let's not be in any doubt about what has happened here. Begrudgingly, I suspect under stern instruction from the Leader of the Opposition, the member for Isaacs has moved his 40 amendments but ultimately is required to support this bill.

The DEPUTY SPEAKER ( Mr Vasta ): Order! The question is that the amendment be agreed to. I call the honourable minister.

Mr DUTTON: This bill must be supported in this place and in the other place. The bill sets the terms by which Australians of counterterrorism interest return to Australia, gives authority over when and how they enter Australia and provides checks on them when they are here. In relation to the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019, the bill complements the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 by introducing additional accountability and transparency measures for the temporary exclusion order scheme in response to the recommendations made by the PJCIS. Specifically, it provides that it is a function of the committee to monitor and review the exercise of power under the scheme and to review the operation and effectiveness of the scheme within three years of its commencement. The bill also enables the Independent National Security Legislation Monitor to review the operation, effectiveness and implications of the scheme. The passage of that bill will assist in ensuring that there is an appropriate balance between those critical measures needed to protect the Australian community and the safeguards and accountability measures necessary to ensure public confidence in the TEO scheme.

In particular, can I say thank you to and acknowledge the tireless effort of staff from the Department of Home Affairs, from ASIO, the Australian Federal Police, the Office of Parliamentary Counsel and all of those people who have been involved in putting in a significant effort to work on this legislation. Also, I'd like to record my thanks to the PJCIS for their ongoing work. I very much commend this bill to the House.

The SPEAKER: The question is that the amendment be agreed to.

Mr DUTTON (Dickson—Minister for Home Affairs) (18:52): by leave—I move:

That this bill be now read a third time.

Question agreed to.

Bill read a third time.

Mr GILES (Scullin) (18:53): I rise to speak on the Migration Amendment (Repairing Medical Transfers) Bill 2019. This bill seeks to repeal the medevac legislation that was passed by the parliament in February this year. It also seeks to amend the Migration Act to extend existing powers in relation to persons transferred to Australia under the medical transfer provisions, allowing for their removal from Australia or return to a regional processing country once they no longer need to be in Australia for the temporary purpose for which they were brought here.

Let me be very clear: Labor does not support a repeal of the medevac legislation. Therefore, Labor will not be supporting this bill. In Labor, we have always had two objectives with respect to the medical transfer of vulnerable people from PNG and Nauru: firstly, to ensure that sick people get the medical care they need, as determined by medical advice; and to ensure that the minister has final discretion over medical transfers on national security, public safety or character grounds. Labor's objectives have not changed, nor have the grounds that caused us to support the medevac legislation.

In introducing the bill, the minister made quite an extraordinary speech, but extraordinary for all the wrong reasons. Though short, it managed to pack in an outrageous series of allegations, undiluted by facts or any sense of responsibility to the people who are directly the subject of this debate or to the Australian people. The minister said there was never a need for Labor's law in introducing this attempt to repeal the much needed amendments to the Migration Act passed at the end of the last parliament. I wish he was right. I wish this parliament had no need to make a law that makes it clear to the government that Australians want people, ultimately in our care, to get the medical care they need, medical care as determined by medical professionals.

It still saddens me that we needed to make that law. But it angers me that the Morrison government and this minister are still using sick and vulnerable people as their political playthings. On more than 50 occasions medical transfers occurred prior to the passage of the medevac legislation, following litigation. As I understand it, as I am informed, every case that commenced resulted in a transfer to Australia, either by court order or through the concession of this government. Is this really how government members want this question of medical treatment to be addressed, through the courts?

On the other hand, what the medevac bill, the regime presently in place, does, sensibly and clearly, following compromise in this place, is to codify something that was already happening and to ensure our objectives, both of them, are met. This is so that we can ensure treatment can be received in a timely fashion and that questions of security, safety and character can also be addressed. If the government were seriously concerned about the operation of medical transfers they would have proposed amendments to deal with their concerns. But the facts demonstrate that medevac is working, and no amendments have been proposed. It's simply wrong to play politics with the lives of sick and vulnerable people in our care, and it's a nonsense and an abdication of responsibility to return to the situation prior to the enactment of the medevac bill.

I want to briefly share with the House the human story I think best illustrates what a difference this regime has made and how dangerous it would be to go back. The story concerns a two-year-old girl known as DIZ18. Her parents fled Iran to Australia, arriving in 2013 without a visa. They were taken by the Australian government to Nauru and recognised as refugees under the refugee convention in 2014. DIZ18 was born in Nauru on 5 June 2016.

This little girl became ill in June 2018 and her illness rapidly got worse over the next few days. On 12 June the treating doctors, with the International Health and Medical Services—the medical service contracted to provide health care to refugees on Nauru—diagnosed her with severe sepsis. In short, IHMS recommended that the little girl be urgently medically evacuated, to a tertiary level hospital, to Australia or a third country. A senior officer of the Australian Border Force involved in the decision inquired whether it was possible for the applicant to, instead, be evacuated to a hospital in PNG or Taiwan. Each doctor and specialist who recommended her medical evacuation recommended that she be taken to a tertiary hospital in Australia or another first-world country; however, the sick little girl was treated at the hospital in Papua New Guinea.

It rapidly became clear that the standard of care required, including MRI brain scans and other scans, was not available at this hospital. Justice Murphy, presiding over the case, stated, 'There is a strongly arguable case that in evacuating the applicant to PIH rather than to a hospital in Australia, the respondents provided inadequate medical care to the applicant. The evacuation resulted in the applicant being sent to a hospital which, at least arguably, did not have the capacity to properly respond to her medical needs.'

The case of this little girl demonstrates that decisions about medical care should be taken by medical professionals. The advice of doctors should be listened to and acted upon. The Australian people are good, decent and generous. They don't want to see vulnerable, sick people in our care suffering when medical care is available to treat them. They appreciate that these circumstances are distinct from the complex policy debates in this area. This is why the parliament must not allow the medevac legislation to be repealed. This is why we are proposing our second reading amendment to the bill, which is before the House. I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House notes that the:

(1) Minister for Home Affairs has:

(a) failed to accurately describe the processes providing for the medical transfer of people from Papua New Guinea and Nauru; and

(b) consistently mischaracterised the effects of these processes; and

(2) Minister for Home Affairs and the Minister for Immigration and Citizenship have failed to put forward any amendments which would address any genuine concerns they may have with the operation of the processes".

It's important to remember that the medevac regime only applies to those refugees and asylum seekers in PNG and Nauru at royal assent on Friday, 1 March 2019. For the medevac process to be enlivened, two or more treating doctors for a patient in PNG or Nauru must advise the Secretary of Home Affairs that the patient needs to be brought to Australia for medical or psychiatric assessment or treatment. The minister can approve or deny the transfer on national security, public safety or character grounds if the patient has a substantial criminal record as defined under section 501(7) of the Migration Act and believes the transfer would expose the Australian community to serious risk of criminal conduct, or the minister suspects the transfer of a person to Australia would be prejudicial to security within the meaning of the ASIO Act, including because of an adverse security assessment, or ASIO advises the minister that the transfer of the person to Australia may be prejudicial to security and that threat cannot be mitigated.

If the minister denies the transfer on national security, public security or character grounds, that is the end of the matter. I repeat: that is the end of the matter. In these circumstances, the transfer does not occur. If the minister denies the transfer on health grounds only, then the following must occur: the minister must inform the Independent Health Advice Panel as soon as practicable, and, within 72 hours, the panel must conduct a further clinical assessment and inform the minister that the minister's decision to deny on health grounds is confirmed or that the transfer has been approved.

We know that the government has approved approximately 90 transfers and that 20 cases have been referred to this panel. Of the 20 referred to the panel, the panel has upheld the minister's decision not to transfer the individual on 13 occasions and overturned the minister's decision not to transfer in seven cases. Let us remember that these are decisions made by an independent panel of doctors that the minister got to choose himself. The panel includes some of Australia's best doctors, including the Commonwealth Chief Medical Officer and the Surgeon General of the Australian Border Force. Despite this, the minister has been vigorously arguing that two doctors from Nimbin can force the government to bring people from Manus or Nauru to Australia, which is just ridiculous. Ultimately, I think the numbers demonstrate both the need for medevac—that it is helping vulnerable people get the care they need, based on advice—and also that there is an effective safeguard in place that enables ministerial discretion.

Regardless of what you think about the wider debates about asylum policy, Australia can and should show humanity. We should not fail to provide critically ill people in our care—in particular, children—with urgent medical treatment. That was the rationale behind the medevac bill—the Migration Amendment (Urgent Medical Treatment) Bill 2018 introduced by the former member for Wentworth, Dr Kerryn Phelps, and the member for Clark. It was one that Labor supported. Medevac is modest and necessary, and, importantly, it is working. I note that there are presently no government members listed to speak in this debate, and perhaps that's as eloquent a testimony to its effectiveness as anything else.

It's very important to note that there is very strong support for the retention of the existing legislation and its framework among stakeholders, including the AMA, the Royal Australian College of General Practitioners, the Law Council and the Asylum Seeker Resource Centre. Medecins sans Frontieres, or Doctors without Borders, provided mental health care on Nauru for 11 months up until late last year, and their report, Indefinite Despair, released in December of last year, makes extremely difficult reading. The report states that of the 208 refugees and asylum seekers the organisation treated in Nauru, 124 patients—that's 60 per cent—had suicidal thoughts and 63 patients—that's nearly one in three—attempted suicide. Children as young as nine years of age were found to have had suicidal thoughts, committed self-harm or attempted suicide. Let us think about that—all of us who have the capacity to help these people or not to. Their report goes on to say:

Almost two-thirds … of MSF's 208 refugee and asylum seeker patients were diagnosed with moderate or severe depression. The second highest morbidity was anxiety disorder (25%), followed by post-traumatic stress disorder—

nearly one in five.

A total of 12 adult and child patients … were diagnosed with resignation syndrome, a rare psychiatric condition where patients enter a comatose state and require medical care to keep them alive.

The AMA president, Dr Tony Bartone, said:

There is compelling evidence that the asylum seekers on Nauru, especially the children, are suffering from serious physical and mental health conditions, and they should be brought to Australia for appropriate quality care … This is a health and human rights issue of the highest order. We must do the right thing.

Kelly Nicholls from the Refugee Council of Australia stated:

The safety of lives must always come first. Doctors have been ignored for too long. People have died as a result. Pregnant women with complications have had to wait dangerously long to receive the treatment they need. Rape survivors have had to have traumatic late term abortions due to government blocks. This bill—

the medevac legislation—

changes the response to medical emergencies in offshore detention on Manus Island and Nauru.

The truth is that, if the government had legitimate proposals to improve the operation of the medevac regime, the Minister for Home Affairs would have put forward amendments rather than simply seeking to repeal the legislation while saying very little about it. He would enter into a good-faith discussion, setting out his concerns and how he would propose that they be addressed. But Minister Dutton has not sought to amend medevac. Rather, what he wants to do is to have us revert to a flawed medical transfer regime that was failing to provide adequate and timely medical care to refugees and asylum seekers in regional processing countries. This once again comes down to Minister Dutton—his mismanagement and his incompetence.

The medevac expert panel that the home affairs minister claimed would open the floodgates and admit sick refugees and asylum seekers to Australia has only been used a few times since the law passed—20 times—with the overwhelming majority of all medevac applications being waved through by the government before reaching the final medical body. Indeed, since the laws were enacted, only seven patients have been transferred without the approval of Minister Dutton or Minister Coleman, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs—seven people. Importantly—and this is a really critical point in the debate, and it really exposes the position of the minister and his government—the ministers did not reject any cases due to security or character concerns; the rejections were due to contested medical grounds. Then these people were only transferred to Australia after being assessed by an expert panel of doctors that the minister got to choose. Remember, this panel includes some of Australia's best doctors, as I mentioned before—the Commonwealth Chief Medical Officer and the Surgeon General of the Australian Border Force amongst them. Of course, every other asylum seeker or refugee who has come to Australia for urgent medical care has been approved by either Minister Dutton or Minister Coleman. But, despite this, the Minister for Home Affairs has been vigorously arguing that two doctors from Nimbin can force the government to bring people from Manus or Nauru to Australia. These claims are simply not true, and the minister knows it. At every step of the way, the government or government-appointed doctors control who comes to Australia through the medevac process.

Perhaps this is why the minister hasn't proposed any amendments to the medevac legislation. In his desperation to prevent the passage of the bill earlier this year, the Minister for Home Affairs claimed that a thousand people would flood Australia through medevac. This hasn't happened at all. Let's be clear: approximately 90 people now have been approved to come to Australia through the regime, and all of these transfers of people have been explicitly approved by ministers or ministerially appointed doctors.

I think I should briefly mention reports today that a boat from Sri Lanka has been intercepted by the Australian Border Force. It just so happens that this story appears in The Australian on the day this bill is being debated—what a coincidence that is! But this has nothing to do with medevac, and the minister's foolish attempts to link the two show that once again he's all about wedge politics and not concerned with good or decent public policy. We know the Easter bombings in Sri Lanka have been acting as a push factor in that part of the world. I'm very confident that our Border Force personnel will be acting professionally in dealing with any such people.

But of course this Minister for Home Affairs has plenty of form when it comes to over-the-top claims. This is the man who, it should be noted—and as we, on this side of the House, remember—was voted the worst health minister in Australia's history and was the architect of the GP co-payment. He said, in his typically opportunistic way:

I do fear that this opens the floodgates ... it sends a bad signal when you have a country like ours being dictated by doctors who can say that people must come here …

Once again, he wilfully mischaracterises the legislation, in the most inflammatory tones. Dictating doctors—really? I'll say it again: the process we are talking about—the process the government is proposing to repeal—balances medical opinion with an appropriate ministerial discretion.

And let's also remember: the doctors clearly aren't making all this up. The only person making things up in this debate is the Minister for Home Affairs. We had the ludicrous situation earlier this year where the minister was going around telling people that Australians were going to be displaced from hospital beds and other health services by this. Then the Prime Minister backed in this falsehood, and he said:

It's just a simple fact. If we've got to treat more people in Australia, then obviously they're going to take the place of people who were getting that treatment anyway. It's just simple math.

What garbage! What utter, utter garbage! St Vincent's Health, amongst others, have comprehensively rejected those claims, saying they were 'baseless'. They said:

Public hospitals can accommodate the health needs of asylum seekers without disadvantaging anyone. St Vincent's is happy to make its hospitals available to provide care to asylum seekers without affecting waiting lists—

'without affecting waiting lists'.

Not to be outdone, just a couple of weeks ago the Minister for Home Affairs reached new lows. The minister said in an interview:

Let's be serious about this. There are people who have claimed that they've been raped and came to Australia to seek an abortion because they couldn't get an abortion on Nauru. They arrived in Australia and then decided they were not going to have an abortion. They have the baby here and the moment they step off the plane their lawyers lodge papers in the federal court, which injuncts us from sending them back.

And, as the Australian Medical Association noted, the minister said that without providing any evidence to back up his claims—these extraordinary and offensive claims.

It's important to ask the question: why, exactly, is this bill being debated in the House this week? I remind members opposite that the Senate inquiry into this bill isn't due to report until 18 October. Indeed, submissions for this inquiry are open until 16 August. The government did not seek an early Senate inquiry reporting date. The extended time frame of the inquiry means that this bill cannot be brought on for debate or vote in the Senate until the sitting week commencing 11 November 2019—11 November 2019—which, again, really begs the question: why now?

We all know that the Morrison government has really brought this bill on for debate today in the misguided belief that this issue is to their political benefit. Well, I'll tell you this: I don't think that people in Melbourne's or Sydney's outer suburbs or in the regions are amused by the Morrison government's political games at the expense of taking seriously its responsibility to govern on behalf of the Australian people.

I also want to put this on the record in this debate. The list of the incompetence and mismanagement of the Minister for Home Affairs is a long one. He oversaw a $300 million Australian Border Force budget blowout, resulting in the Australian Border Force fleet being ordered to stop patrols to save money on fuel, and putting the border at risk. There was the $7 million spent on the strategic review of the Department of Home Affairs that we're just not allowed to see. I wonder why that might be the case. ANAO report after report has highlighted significant mismanagement and waste or the minister's failure to manage offshore contracts. We think, of course, about Paladin in this regard as the most extreme example of many. And who could forget that ridiculous press conference by the Prime Minister on Christmas Island last year—a press conference that cost an estimated $60,000?

And right now we see the Minister for Home Affairs embarking on a disgraceful attempt to privatise Australia's visa processing system. I mean, seriously—who on earth thinks it's a good idea to sell off our visa processing system? I note this isn't something that the minister—or, indeed, his colleagues—seems to be particularly keen to talk about. And we should be very, very clear about this: selling off our visa system is a bad idea that could lead to thousands of job losses, cuts to services, increased visa fraud and also data security risks.

In summary, the only problem that the bill before the House is designed to solve is a political one—a political one of the government's own making. The Morrison government has talked about problems with the approach that's currently law in Australia but has put forward no solution by way of amendment. How the minister and the government have chosen to engage in the debate over the medical treatment of refugees and asylum seekers in PNG and on Nauru is as important and revealing as it is shocking. It's shocking, of course, that members of Australia's government would wilfully mischaracterise a proposed law and its consequences and recklessly demonise vulnerable people—of course it is, however accustomed we may be to this from this government—but there is something more to this.

The manner in which the minister has responded to calls to changes in the medical treatment regime exposes a difficult truth on the part of the government—that is, they lack the courage of their convictions. We see that obviously in the speakers list for this debate. A confident minister would welcome debate and would be comfortable defending his position calmly and rationally. He or she would look forward to the opportunity of exposing the shortcomings of alternatives in a considered and thoughtful way, looking to expert opinion and to our shared values as Australians, but not this minister and not this government. This is all about cheap politics—never the policy nor the people affected. For him the politics in turn is all about defending his position, nothing more than this so that we should look away from his failure to achieve resettlement for too many refugees after nearly six years in office.

When we look to the record of medical treatment and medical transfers, we see a litany of shameful events and an even more shameful refusal to accept responsibility, which is at the heart of the medevac legislation. That he won't talk about this is telling. That he continually seeks to deflect and confuse is telling. It exposes the gaping hole at the centre of his position here—that he can't find a genuine basis to oppose the legislation presently in place, which simply codifies what always should have been happening: medical treatment based on medical advice with appropriate discretion for the minister so that any wider policy or security questions can be had regard to in the national interest. That is why I urge members, particularly members opposite, to support the second reading amendment I have moved and to oppose this unnecessary and destructive legislation.

The DEPUTY SPEAKER ( Mr Vasta ): Is the amendment seconded?

Mr KHALIL (Wills) (19:17): I second the amendment. I rise to speak on the Migration Amendment (Repairing Medical Transfers) Bill 2019 and to oppose the repeal. This bill is a repeal bill. This bill seeks to repeal the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019, what we call the medevac law. The 45th Parliament passed this in February. The law is working. The law allows sick people in Australia's care to get medical treatment. It is that simple.

What has happened since it became law in February? Approximately 96 people, as of today, have been approved under this new law and around 40 people have come to Australia under the new law. Eighty per cent went through the ministerial sign off—they were signed off by the minister—and the rest had approval of the government-appointed medical panel. It is working. From what I have been told, the medical panel looked at 21 and in around 13 instances the panel supported the minister's position and in eight instances it opposed the minister's position.

The Leader of the Opposition pointed out today the fact that prior to the medevac law being passed the government actually transferred around 900 people to Australia because they were sick. So the government was transferring people anyway. The difference was that the government was doing everything it could in the judiciary to fight against the transfer requests. They fought them in the courts, every single case. That's what they did—over 900 transfers, and they fought nearly every single one. The member for Dickson claimed that 1,000 people would flood Australia under this law. Well, that hasn't happened. Clearly he's not Nostradamus, is he, because that didn't happen.

Around 40 people have actually come under this law—as I said, 80 per cent with ministerial sign-off by your own minister, and the rest through recommendations through that government-appointed medical panel. The people who have come under this medevac law have all been approved by government ministers or the ministerial-appointed doctors. Look, it's pretty simple: it looks like this government is confirming that it wants to continue its third term of government as it began its first term—playing politics with people's lives. The government wants to cruelly deny sick people medical treatment. That's what this bill is about. That's what this repeal is about: denying sick people medical care. When you boil it down, that's what it comes down to. I can't understand why they wish to do this. Is it because they are stubborn? Is it because the bill was passed by a combination of the opposition numbers and the crossbenchers?

Basically they're denying sick people medical care. Is that in Australia's best interests? Is it in our national interest? It seems to me that fear has been the most prominent element of the debate around this issue, particularly since the Tampa crisis two decades ago. Fear has ruled. Fear is a political weapon—fear of resisting, fear of even the imagining of being able to do something different, to find a different way forward. We as a nation have been trapped by this issue that has become so politically fraught that it's next to impossible to actually have a conversation with anyone about how we might move forward. From the far Right, from the far Left, all we hear is people shouting at each other. This latest iteration of this fraught issue—this attempt to repeal the medevac law—is just another tactic that fits into this ongoing fear that has paralysed us. It is an attempt to demonise refugees and people seeking asylum.

My parents fled war in Egypt 50 years ago to come to this country. The state of this debate has deeply saddened me for the past two decades particularly, because I know—and I know many other Australians know—the abiding desire we have for peace and security in a nation like Australia. That's why my parents came here. That's why they fled where they were from, to come here and to start a new life—one that was secure for them and their children and would give them a chance. That's why I have worked on these issues. That's why I've been passionate about them. I spent most of my career in national security. I have committed myself to protecting Australians and our interests. But I've also spent that time trying to cut through, hopefully, that paralysing fear that has been part of this debate, even going as far as trying to make representations at the UN and UNGA back in 2015, at the height of the Syrian refugee crisis, with people I knew, who I'd worked with, in the Obama administration around safely transporting refugees to Europe.

Even in my first speech in this place I spent much of the first speech talking about how I believe that Australia has a moral, an ethical and a legal obligation to care for those refugees who have been physically, emotionally and mentally harmed by the conditions of detention they have experienced. Rather than just talk about it, we work towards that, in so many different ways. The policies that we worked on in opposition and that we put to the Australian people at the last election were part of that.

I remember that in early 2017 the government then led by Malcolm Turnbull tried to pass the so-called lifetime ban bill. That would have meant a ludicrous lifetime ban on refugees from Manus and Nauru ever coming to Australia. It was really a smokescreen for the abject failure of the Turnbull government at that point in time, which for over three years had failed to find resettlement arrangements for the refugees languishing on Manus and Nauru. It was so ridiculous to have a potential scenario where a refugee could make it to New Zealand, maybe become a minister in the New Zealand government within 10 years and then want to visit Australia—Prime Minister Jacinda Ardern visited us just last week—but, sorry, if that law had passed, they wouldn't have been able to come into the country. That's how preposterous it was. We got to a point in this country where the government were putting up bills that would have had that kind of effect so that they could feed that fear. Maybe it was beneficial for them politically to keep feeding that, but it's ridiculous. It makes no-one safer. It doesn't add to our national security. It diminishes us as a people, because we have a duty of care for those people. It's not just about international law; it's not just about domestic law. It's about doing what's right and decent, as one human being to another.

We opposed that, quite rightly, as an opposition. I came out and said it was ridiculous. And yet we're still here. We're still here tonight, debating the same kinds of attempts by this government to stoke that fear. I've got to say how disgusted I was, when we passed the medevac law back in February, that MP and senator after MP and senator on the government side went out and said: 'In passing the medevac law, Labor has just allowed murderers, rapists and paedophiles to come into Australia.' That's what they were saying on the news, in their interviews in the press and on the radio. It was absolutely disgraceful. It was one of the lowest points in my time here, witnessing that.

And, just to top things off—you will all recall Hakeem Al-Araibi, the young fellow who plays football for Pascoe Vale Football Club in my electorate and who lives in the electorate of the member who preceded me in this debate. He was here for an exhibition game, because we got him out of Thailand and that issue that he was facing. He's a refugee. And some of same MPs who were in the media talking about us letting in rapists, murderers and paedophiles came down to have a kick with him and take a selfie with him. It was absolute hypocrisy. Together with Fos, Craig Foster, a friend of mine from my SBS days, we'd worked so hard to get Hakeem out of the situation he was in. But we had all these Liberal and National Party MPs and senators coming down to get their selfie with Hakeem, because it was the news of the day. All credit to Marise Payne—she made a good effort, as foreign minister, to get him out. But the hypocrisy of my colleagues on the other side, on the government benches, who came out to take their picture with him while, at the same time that morning, saying that we—Labor and the crossbenchers who'd passed the medevac law—were allowing murderers, rapists and paedophiles into the country was absolutely disgraceful and it saddened me to the core.

We worked on policies, as a party, in the previous parliament. I was working with colleagues such as Ged Kearney, the member for what is now Cooper, and many others on a whole range of policies as part of the immigration working group. We took good policies to the last election. We made a commitment to end indefinite detention on Manus and Nauru. We made a commitment to double the refugee intake. We made a commitment to a new community sponsored refugee program that would increase the number by another 5,000. I moved that motion at our party conference and was very proud to do so. We made a commitment of a $500 million investment into the UNHCR, to work with them on regional frameworks and regional solutions to help alleviate the issues facing the 25 million refugees registered by the UNHCR globally. We put forward an independent children's advocate and a 90-day processing rule. We put forward a policy to end TPVs and SHEVs to make sure that if you are found to be a genuine refugee you are given that status.

Debate interrupted.