Posted 04/08/2014 by Nigel Brew
The Government’s announcement on 25 June 2014 that it would be introducing new national security legislation at the same time that it was actively moving to abolish the office of the Independent National Security Legislation Monitor (INSLM) led to heightened concern and criticism, including from the Labor Opposition, that oversight of the Australian Intelligence Community was being eroded when it was arguably needed the most. On 16 July the Government reversed its decision to abolish the INSLM and the Opposition threw its support behind the new legislation.
Established in 2010 to ‘review the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis’ the office of the INSLM has only ever had one incumbent, Bret Walker SC, whose three-year term began in April 2011. Under its ‘cutting red tape’ initiative launched on 19 March 2014 the Government announced the abolition of the INSLM as ‘part of the Government’s strong commitment to reduce bureaucracy and streamline government’ on the basis that the INSLM’s job was done and that oversight is sufficient. The INSLM Act was one of 10,000 pieces of ‘unnecessary and costly legislation’ slated for repeal on 26 March, the first of the Government’s bi-annual ‘repeal days’.
A submission from the UK’s Independent Reviewer of Terrorism Legislation (IRTL), David Anderson QC, to the Senate inquiry tasked with reviewing the proposed abolition of the INSLM noted that the Australian INSLM is ‘a source of international respect’ which ‘establishes a global benchmark for the independent supervision of counter-terrorist activity’. Previously, in a February 2014 lecture about the UK IRTL to the Statute Law Society in London, Mr Anderson praised the ‘more modern approach’ taken by Australia.
In his final annual report, Mr Walker noted (p. 3) that he was not consulted prior to the repeal of the INSLM Act being announced, and objected to the characterisation of the office as ‘red tape’. Mr Walker also noted that despite the Government referring to ‘existing independent oversight bodies’, the Inspector-General of Intelligence and Security (IGIS), for example, is not resourced to take on the responsibilities of the INSLM. For a comparison of existing oversight mechanisms with the functions of the INSLM, see the Parliamentary Library Bills Digest on the issue.
In response to the Government declaring that ‘the end of the Monitor’s term brings to an end this thorough review’, critics such as the Gilbert + Tobin Centre for Public Law pointed out that ‘the Monitor was not created to review the anti-terrorism laws once and once only; it was established to provide continuing review’. Shadow Attorney-General, Mark Dreyfus, agreed: ‘they said quite incorrectly that the monitor’s task was done … this substantial package of national security changes … [is] a prime example of why you need to have an independent national security legislation monitor’.
Given that the Opposition had already expressed in-principle support for the new legislation which is based on the (June 2013) Report of the Inquiry into Potential Reforms of Australia's National Security Legislation it commissioned and supported when in government, but had publicly urged the Government to retain the INSLM, it seems reasonable to assume that the Government bargained away the abolition of the INSLM in return for the Opposition’s support for the new legislation. Labor’s support for the Bill and its blocking of a Greens motion to have the Bill reviewed by the INSLM and the IGIS prompted the Greens to claim that the Labor Opposition had ‘sided with the Abbott Government in closing down Senate scrutiny of the latest expansion to ASIO’s powers’.
However, given the apparent lack of any response by the Coalition or previous Labor Government to the INSLM’s existing recommendations in his previous reports, it remains to be seen whether the retention of the INSLM amounts to anything more than a gesture. As Mr Walker has stated (p. 6), ‘when there is no apparent response to recommendations that would increase powers and authority to counter terrorism, some scepticism may start to take root about the political imperative to have the most effective and appropriate counter-terrorism laws’.
Among those who welcomed the retention of the INSLM was Independent MP Andrew Wilkie who also called for ‘strengthened IGIS oversight’. Although the IGIS 2012–13 annual report acknowledges (p. 4) that ‘it is possible that there will be reforms of national security legislation that could lead to further responsibilities for this office’, the IGIS may itself need some strengthening first. Despite the number of IGIS staff remaining stable over recent years, the IGIS 2010–11 annual report explained (p. 24) that due to the increased number of inspection activities overall, more IGIS staff attending each inspection and the ever-increasing duration of individual inspections, the IGIS had moved away from ‘100% compliance checking’ of ASIO warrants to a ‘risk-based sampling approach’. For at least ten years up until 2011–12, every individual warrant was examined by the IGIS. In 2012–13 (p. 18), the IGIS reviewed approximately only a third of all ASIO warrants.