Tasmanian Liberal MP Andrew Nikolic has been appointed chair of the Parliamentary Joint Committee on Intelligence and Security. This committee is responsible for examining the government’s proposed counter-terrorism laws and the administration of Australia’s intelligence agencies.
Nikolic was one of former prime minister Tony Abbott’s strongest supporters. He remains a staunch advocate of stronger counter-terrorism powers for police and intelligence agencies.
Labor has criticised Nikolic’s appointment. Shadow Attorney-General Mark Dreyfus described Nikolic as a:
… highly partisan, highly aggressive battler for extreme right-wing views.
In reply, Nikolic’s predecessor Dan Tehan accused Labor of making a “pathetic attempt of cheap politics”.
Given the important role the committee plays in examining new counter-terrorism laws, Labor is not simply engaging in “cheap politics”. But in an era of ever-increasing counter-terrorism powers, what is Nikolic’s appointment likely to mean for the committee’s work?
The committee under Tehan
The committee has played a key role in examining the numerous tranches of national security legislation introduced by the Coalition government in response to the threat of foreign fighters returning from Iraq and Syria and homegrown terrorism.
But despite significant controversy over many of these laws, the committee has largely failed to recommend any substantive changes to the bills as introduced into parliament.
A good example of this relates to the offence of entering or remaining in a “declared area”, which provides for ten years’ imprisonment where a person merely steps into an area of a foreign country declared by the foreign minister to be a no-go zone. On the committee’s recommendation, the government amended the offence as originally drafted so that an entire country could no longer be made a declared area.
The government accepted this change as if it were making a significant concession. But in reality, this did little to alter the offence’s scope; anything less than a whole country could still be declared. In particular, the amendment did nothing to reduce that offence’s impact on the right to freedom of movement or the presumption of innocence.
The legislation dealing with metadata retention was a notable exception to this trend. Significant efforts were made to fix a number of problems with that regime, including that the attorney-general would otherwise have had the power to make regulations granting any organisation access to metadata.
That experience, as well as the more recent inquiry into the citizenship-stripping legislation, provides a useful example of the kind of balanced debate and reform that the committee under Tehan’s leadership was capable of achieving.
What might we expect under Nikolic?
Nikolic has claimed the new threat of terrorism makes civil liberties “redundant”, and objections to new counter-terrorism powers amount to “impractical nonsense”. It is this strongly held position that may affect his work as chairman of a committee which assesses the impact of counter-terrorism laws on the rights of all Australians.
Just one example of Nikolic’s quick support for the needs of police and how this can undermine productive debate can be seen in the inquiry into the metatadata legislation. During one public hearing, Australian Privacy Commissioner Tim Pilgrim made a very reasonable suggestion: that a retention period of one year rather than two years may be appropriate, as 90% of metadata requests related to data that was less than 12 months old.
Nikolic questioned Pilgrim as to why one year would be sufficient given the Australian Federal Police’s “definitive” and “deeply held” view that two years was required. His line of questioning led to Dreyfus stepping in to defend Pilgrim. A lengthy and unproductive interchange followed in which all parties involved – including Tehan – struggled to complete a sentence.
This is not to suggest that the blame for that dialogue lay entirely with Nikolic, as Dreyfus was hasty in accusing Nikolic of “verballing the witness”. But it is the kind of heated exchange that Nikolic’s strongly held conservative views and questioning style have the capacity to cause.
Some are seeing Nikolic’s appointment as an attempt by Prime Minister Malcolm Turnbull to appease the Liberal Party’s right wing and help heal some of the wounds from the leadership spill.
This may backfire if Turnbull ultimately loses support among the party’s moderates for appointing a committee chair who does not value a balanced debate about the impacts of counter-terrorism laws on civil liberties to the same extent as his predecessor.