Much of the “foreign fighters” bill scheduled for debate in Parliament this afternoon represents yet further overreach by the government and its intelligence and law enforcement agencies. Earlier this year, the then-Independent National Security Legislation Monitor Bret Walker SC identified the need to strengthen the legal framework required to prevent Australians from travelling abroad for the purposes of engaging in terrorist activities. The bill implements many of his recommendations.

But Walker also criticised preventive detention orders, which he believes should be removed from the statute books. Rather than implement that recommendation, the government has sought to make permanent the power of preventive detention, which was due to expire next year, before belatedly proposing to sunset it in 2025 — which is as good as permanent.

The Joint Committee on Intelligence and Security, in reviewing the bill, took a very different view, and under pressure from Labor members, pushed for the power — along with that relating to control orders — to sunset two years after the next election instead. The amendments giving effect to the committee’s recommendations haven’t been circulated, so we can’t tell you whether the government has, as it claims, accepted all of them.

The committee has also proposed fixing a problem Crikey identified earlier this year: the deeply flawed system of oversight of our intelligence agencies. While JCIS has worked diligently on the first two rounds of the government’s terrorism laws and conducted an extensive review of reform proposals when Labor was in power, its current powers are very limited, and dependent on the government of the day referring matters for its consideration (something Attorney-General George Brandis, to his credit, has done).

The committee wants to formalise a larger role for itself in reviewing how counter-terrorism laws have been implemented, in order to address the gap between the legislative review function of the INSLM (currently vacant) and the tame intelligence community watchdog, the Inspector-General of Intelligence and Security.

As John Faulkner has argued, expansions of the already extensive intelligence gathering and enforcement power of our security agencies need to be offset by greater oversight of those agencies. The expansion of the role of JCIS is an important first step in that process.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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