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Question Time: Penny asks George Brandis why his terror laws contradict expert advice

Senator WRIGHT (South Australia) (14:15): My question is to the Attorney-General, Senator Brandis, regarding the extension of preventative detention orders in the foreign fighters legislation to be introduced today. The COAG review of counterterrorism laws recommended preventative detention orders be repealed. Reports by the former Independent National Security Legislation Monitor, Bret Walker SC, also said that these orders are not effective, not appropriate, and not necessary. Why, then, is the coalition government proceeding with legislation against this expert advice and extending powers that Mr Walker has said 'are worse than useless'?

Senator Ian Macdonald: I rise on a point of order. Mr President, I think there is a standing order prohibiting questions about matters that are already on the Notice Paper. I would ask your ruling on that in relation to this question.

The PRESIDENT: Thank you, Senator Macdonald. The matter is actually referring to a notice of motion to introduce a bill. It is very close, but I will allow the question on this occasion. The Attorney-General.

Senator BRANDIS (Queensland-Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:16): Thank you very much, Mr President. I am aware that Mr Walker is of that view. I am also aware that there are many, and they include those responsible for policing, who are not of that view. Those people include, most importantly, the acting commissioner of the Australian Federal Police, Acting Commissioner Andrew Colvin, with whom I had a discussion about this matter as recently as Sunday afternoon, and with whose officers I have had many discussions.

Senator Wright, there will always be legitimate room for a debate about the design features of particular measures. There will always be, in particular, room for a legitimate debate where those measures are unusual measures. Preventative detention orders, like control orders, are unusual features of our law. They were introduced by the Howard government in 2005 specifically to deal with a very unusual set of circumstances, and that is where a terrorist event was considered by the authorities to be imminent to give them the power to take a person into custody in circumstances in which, for various reasons, an arrest, which is, as you well know, the ordinary mode in which people are taken into custody might not be available. So rare are those powers that they were never used for last week.

As you know, Senator, the foreign fighters bill, which is being introduced into the Senate this afternoon, deals with the issue of preventative detention orders. The bill is going to be referred to the Parliamentary Joint Committee on Intelligence and Security, and they are going to have a good look at it as well. But it is the view of the government that there is a role, albeit in unusual and very limited circumstances, for this device. The government is determined that every piece of equipment needs to be in the armoury to keep our country safe.

Senator WRIGHT (South Australia) (14:18): Mr President, I ask a supplementary question. The position of the Independent National Security Legislation Monitor has been vacant since April, despite the fact that we have extensive changes proposed by the government to national security legislation, as you have indicated in your answer, including the imminent foreign fighters legislation. Will the Attorney-General inform the Senate when he will appoint a new Independent National Security Legislation Monitor?

Senator BRANDIS (Queensland-Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:18): Yes, I can, Senator Wright. I can tell you that the government will be appointing a new Independent National Security Legislation Monitor soon.

Senator WRIGHT (South Australia) (14:19): Mr President, I ask a further supplementary question. Given that, first, the government decided to abolish the position of the Independent National Security Legislation Monitor, then in July decided to reinstate it, the position remains vacant and unfunded despite extensive changes to national security laws that are coming, the government's commitment to oversight the national security laws seems unreliable. When will the INSLM position be funded, and will the funding be the same or more than it was previously?

Senator BRANDIS (Queensland-Deputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (14:19): Senator Wright, I think you ought to contextualise your history. The idea of having an INSLM was an idea that came from the coalition. It came from the coalition in the first year of the Rudd government, and it was initially opposed though subsequently adopted by the Labor government of the day. It was in fact moved in this chamber over opposition from the Labor government of the day by former Senator Troeth and me.

It is true, as you also say, that in the budget process the government gave consideration to abolishing that position for economy reasons, but, on reflection and conscious that we were going to introduce very significant new laws in relation to national security, we considered that it was a good decision to retain the position. That is what we have done. So, a position first recommended by the coalition has been kept as a result of a decision by the coalition.

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