National security isn’t served by convenient bipartisanship

The parliamentary joint committee on intelligence and security plays a key role in securing the passage of Australia’s most contentious national security laws.

Bills come to the committee with serious defects. The committee then produces a list of changes that inevitably attract agreement between government and opposition. The result is a bipartisan position that enables the enactment of the law. This occurs even where the bill has serious flaws.

The committee plays this role because of its composition. Unlike other committees, it includes members only from the government and opposition. Its present membership is even more unusual as the Coalition is represented only by the Liberal Party. The Nationals, like the minor parties and independents, do not get a look in. In this form, the body works as a closed forum in which deals can be done to secure the numbers for new security measures.

Bipartisanship has its merits. There are times when political differences must be put aside to ­advance the national interest, ­especially when the nation is ­imperilled.

On the other hand, ­debate and disagreement are needed to produce the best laws. Differences should not be papered over when failings remain, yet this happens time and again in enacting Australia’s most important laws.

This is apparent when it comes to laws that protect the community from terrorism. Since the ­attacks on the US on September 11, 2001, 70 counter-terrorism laws have been enacted by the federal parliament. Most have attracted immediate cross-party backing. Others, often involving extra­ordinary powers for our intelligence agencies, have provoked initial division. In the end, though, all have been enacted with bipartisan support. This has occurred even where serious concerns ­remained. Problems have been put aside in favour of the opposition presenting a united front with the government.

The result has been bills ­enacted in haste and with inadequate scrutiny. These laws are needed to protect the community but too often they are inadequate or trample unnecessarily on democratic freedoms. This has been identified repeatedly by ­independent inquiries and in the reports of Australia’s first Independent National Security Legislation Monitor, Bret Walker SC.

Despite this, few defects have been remedied because, once a law has been enacted, political attention shifts to the next measure to be added to the statute book.

The latest example is the foreign interference bill. Australia needs an effective law to safeguard our electoral and other processes from foreign quarters. Yet here again the government introduced a deeply problematic measure that was unworkable in some respects and in others an unnecessary infringement of basic liberties.

The PJCIS spent six months examining the bill, with predictable results. Last week it announced amendments, and dis­agreement between the Coalition and Labor evaporated. Both will support the legislation on the floor of parliament, thereby guaranteeing its passage.

This is a bad outcome. The foreign interference bill is a long way from being fit for the statute book. The committee recommended 60 changes, several of which ­require major surgery to the legislation. Many of the recommendations are also incomplete and demand further debate. The bill remains a work in progress.

Nonetheless, the process from here will involve rushing the bill through parliament. The committee’s 400-page report was followed late last week by pages of complex government amendments. The committee is prepared to receive comment on these only until Friday. Soon after, the bill will be enacted with Labor support so that it is in place, imperfect or not, in time for the “super Saturday” by-elections on July 28.

Even with the changes of the parliamentary joint committee, the bill will remain incomplete and dangerous. It will contain overbroad and uncertain definitions of critical concepts such as national security. The law also will undermine freedom of speech and of the press.

As in past inquiries, the committee has given low weight to these values. It has failed to put forward amendments to prevent journalists being imprisoned. Journalists are being offered an incomplete defence, rather than an exemption, for using sensitive information to report on matters of public interest. The possibility also remains that people who publish information about Australia’s economic and political relations with other countries will face jail under new espionage offences.

Rather than supporting amendments, the committee suggested that the government would not pro­secute a person even where they had satisfied all elements of the offence.

This is a frail shield that will not instil confidence in academics, journalists and ­others who deal with such information. It again represents an overreach that goes well beyond what is needed to combat foreign interference.

The foreign interference bill is another example of a poorly conceived national security measure that will unduly undermine freedom of speech and of the press.

Unfortunately, such laws have ­become commonplace. The self-restraint once exercised by parliamentarians has disappeared. Instead, bipartisanship provides cover for laws that erode some of Australia’s most important values.

George Williams is dean of law at the University of NSW.