Bills Digest no. 17 2009–10
National Security Legislation Monitor Bill
2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 25 June
2009
House: Senate
Portfolio: Cabinet Secretary
Commencement:
The day after Royal
Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose, or object, of the Bill is to appoint a National
Security Legislation Monitor (Monitor) who will assist Ministers in
ensuring that Australia s counter-terrorism and national security
legislation:
- is effective in deterring and preventing terrorism and
terrorism-related activity which threatens Australia s security;
and
- is effective in responding to terrorism and terrorism-related
activity; and
- is consistent with Australia s international obligations,
including human rights obligations; and
- contains appropriate safeguards for protecting the rights of
individuals.
The Australian anti-terrorism laws introduced since late 2001
have been criticised for being framed so broadly that they catch
innocent people and tie up resources that could be much better used
chasing real terrorists .[1] There have been calls by politicians, media commentators
and academics for a thorough review of the suite of legislation
that includes allowing law enforcement officials to detain a person
for questioning without charging them with an offence for 48 hours.
These laws also allow a Federal court to issue control orders which
can limit a person s movement when that person has not been found
guilty of a criminal offence.[2] Legislation allowing extended periods of
detainment without charge and restricting a person s movements
through a control order is excessive to internationally recognised
human rights such as freedom of movement but are considered by the
Australian Legislature to be necessary to limit a person s freedom
in certain circumstances.[3] These are not the only controversial aspects of the
anti-terrorism laws but they are the aspects that have received the
most media attention, particularly since the cases of David Hicks,
Jack Thomas and Dr Mohammed Haneef.[4]
The anti-terrorism laws have been criticised for impinging on
Australians civil liberties, specifically by failing to protect an
individual s freedom of movement, privacy and reputation, rights in
criminal proceedings (including during the investigation stage) and
the right to a fair hearing.[5] More explicitly, the United Nations Human Rights
Committee, in its April 2009 review of Australia s compliance with
the International Covenant on Civil and Political Rights (ICCPR),
expressed concern that some provisions of the Anti-Terrorism
Act (No 2) 2005 and other counter-terrorism measures adopted
by the State party appear to be incompatible with the [ICCPR],
including with non-derogable provisions .[6] The Committee was particularly
concerned at:
- the vagueness of the definition of terrorist act;
- the reversal of the burden of proof in certain cases contrary
to the right to be presumed innocent;
- the fact that exceptional circumstances , to rebut the
presumption of bail relating to terrorism offences, are not defined
in the Crimes Act, and
- the expanded powers of the Australian Security Intelligence
Organisation (ASIO), including so far unused powers to detain
without access to a lawyer and in conditions of secrecy for up to
seven-day renewable periods.
The United Nations Human Rights Committee recommended that The
State party should ensure that its counter-terrorism legislation
and practices are in full conformity with the Covenant .[7] It is a challenge for any
Government to balance the need for an effective national security
regime with the need to ensure reasonable protection of an
individual s rights and liberties. The Australian community also
need reassurance that the Government will scrutinise these laws
following concerns that police and security agencies have failed to
apply them properly .[8] In this light, a number of terrorism reviews have
occurred and calls for a review of all the terrorism legislation
have been made over recent years.
This Bills Digest assumes some general understanding of the
concepts and Australian laws relating to terrorism. For more
explanation and details of those concepts and laws, see the
resource guide on Terrorism
Law, prepared by the Parliamentary Library.[9]
In October 2005, a one-off review looking at the operation,
effectiveness and implications of amendments in six
terrorism-related Acts passed in 2002 and 2003 was conducted. This
review is known as the Sheller Review.[10] The Sheller Review did, at the time,
consider that an Independent Reviewer of terrorism legislation
could be part of the office of the Inspector-General of
Intelligence and Security or the Commonwealth Ombudsman s
office.[11] This
option to have an existing office take on the role was favoured by
a number of groups who made submissions to the 2008 Senate
Committee Inquiry into the Independent Reviewer of Terrorism Laws
Bill 2008.[12] The
Howard Government did not implement the 20 recommendations from the
Sheller Review.[13]
In 2006, the Parliamentary Joint Committee on Intelligence and
Security (the 2006 Joint Committee Inquiry) reviewed a selection of
terrorism legislation, as required by paragraph 29(1)(ba) of the
Intelligence Services Act 2001 (Cth). This provision
required the Joint Committee to review the operation, effectiveness
and implications of the Security Legislation Amendment
(Terrorism) Act 2002; Border Security Legislation Amendment Act
2002; Criminal Code Amendment (Suppression of Terrorist Bombings)
Act 2002 and the Suppression of the Financing of Terrorism
Act 2002. These Acts were originally passed subject to an
agreement that a review of the operation, effectiveness and
implications of the new laws would be conducted after three
years.[14] During
the Joint Committee hearing in August 2006, the Assistant Secretary
of the Security Law Branch of the Attorney-General s Department
indicated that further reviews of all the terrorism legislations
were not planned.[15]
The proposal to appoint an Independent Reviewer of Terrorism
Laws, with a similar role and function to the Reviewer in the
United Kingdom, was endorsed by the Parliamentary Joint Committee
on Intelligence and Security in its report of December 2006. In its
support of the idea, the Joint Committee noted that:
to date post enactment review has been sporadic
and fragmented with a focus on specific pieces of legislation
rather than the terrorism law regime as a whole. This has limited
the opportunity for comprehensive evaluation and highlights the
need for an integrated approach to ensure ongoing monitoring and
refinement of the law where necessary.[16]
In March 2008, Liberal MP Petro Georgiou introduced into the
House of Representatives a Bill that established an Independent
Reviewer of Terrorism Laws that would have the capacity to review
Commonwealth terrorism laws. The Government gagged debate on the
Bill in the House of Representatives and it could not
proceed.[17]
Consequently, in June 2008, Liberal Senators Gary Humphries and
Judith Troeth introduced an identical Bill into the Senate. The
Private Member s Bill encouraged debate and revived public interest
in the need for a review of terrorism laws. So too did the Clarke
Inquiry into the so-called Haneef affair where Dr Mohammed Haneef
was detained and questioned without charge for 12 days. Mr Georgiou
said at the time that the anti-terrorism laws need the public s
confidence. This proposal [to have an Independent Reviewer] sends
the right message and would engender confidence .[18]
The Senate Legal and Constitutional Committee (the 2008 Senate
Committee Inquiry) inquired into the Senators Bill and reported on
14 October 2008. In brief, the Committee supported the Bill
in-principle and made 5 recommendations about possible amendments
to the Bill.[19]
The Committee was chaired by Senator Trish Crossin, ALP Senator for
the Northern Territory. A range of amendments were made and the
Bill was passed in the Senate on 13 November 2008. The Bill is now
on the Notice Paper in the House of Representatives but given the
introduction of this Bill, is likely to be removed without debate
in the future.[20]
The current Bill has adopted the following recommendations from the
2008 inquiry:
- that the Bill be amended to comprehensively describe the role
and function of the Independent Reviewer, and enumerate the
criteria by which legislation should be reviewed
(adopted)
- That the Bill be amended to detail the legal status of the
Independent Reviewer; the legislation intended to fall under its
purview; remuneration of the Independent Reviewer ; resourcing of
the Independent Reviewer and the immunity or otherwise of the
Independent Reviewer from civil liberty (partially
adopted)
- That the Bill be amended so that, in addition to reporting to
Parliament on inquiries undertaken by the Independent Reviewer in
respect of terrorism legislation, an Annual Report on the
activities of the Independent Reviewer is tabled in Parliament
(adopted).
The Bill has not been changed to allow the role
of the Monitor to be carried out by a panel of three experts as per
Recommendation 4 of the Report.
This Bill implements the decision announced by the Government on
23 December 2008, to establish the position of the National
Security Legislation Monitor.[21] Further, the second reading speech has noted
that
the establishment of an independent reviewer of
terrorism laws is consistent with the recommendations made by the
Security Legislation Review Committee in June 2006 and the
Parliamentary Joint Committee on Intelligence and Security in
December 2006 and September 2007. Most recently, the inquiry by the
Hon. John Clarke QC into the case of Dr Mohammed Haneef also
supported the establishment of an independent review
mechanism.[22]
However, an analysis of the Bill
raises a number of concerns about how loosely the recommendations
of these Committees and Inquiry have been followed. Of most
significance is the suggestion that the Monitor is truly
independent in the way that the Committees and the Hon. John Clarke
QC recommended. There is no mention of the word independent in
either the title or, more importantly, the text of the Bill. Whilst
the Monitor will have significant operational independence, their
legislated mandate is for example narrower in some significant
respects than the United Kingdom s Independent Reviewer of
Terrorism Laws. For example, the Independent Reviewer in the United
Kingdom is required to report on the implications for the operation
of the Prevention of Terrorism Act of any proposal made by
the Secretary of State for the amendment of the law relating to
terrorism [emphasis added] [23]. It is not proposed that the new Monitor have
this reporting requirement. These issues and others are considered
in detail further in this Digest.
The Bill has been referred to the
Senate Finance and Public Administration Committee (Current
Senate Inquiry) for inquiry and report by 7 September 2009.
[24]The Committee
will assess the extent to which the recommendations of the 2008
Senate Committee Inquiry into Independent Reviewer of Terrorism
Laws Bill 2008 [No.2][25] were taken on board, and the scope of the Monitor s
mandate. The inquiry is therefore not required to make
recommendations on the substantive issues and drafting of the Bill.
At the time of publication, the Committee had received 14
submissions to its Inquiry and issues raised in those submissions
will be considered in this Digest.
The Bill itself has not attracted significant commentary or
press coverage. However, the need and arrangements for an
independent review mechanism has been the subject of academic
discussion for a number of years.[26]
Most commentary is supportive of the review mechanism
in-principle however there are some groups who have strongly
disagreed with the manner in which the Monitor is proposed to work.
For example, the Sydney Centre for International Law has said
that:
establishing a one-off monitor of terrorism
laws would be institutionally inefficient (by unnecessarily
creating new and potentially costly structures where more
experienced structures already exist and can deliver economies),
inadequate (because the position would likely be part-time and thus
stretched) and risky (since the success of the monitor would stand
or fall on an individual personality, rather than embedding the
review function in a better resourced, professional, long-standing
law reform body which is not dependent on an individual). Whereas
the ALRC [Australian Law Reform Commission] can deliver systematic,
considered views based on consultative processes, there is a risk
of an independent reviewer providing idiosyncratic individual
opinions, regardless of whether the person is a barrister, academic
or former judge or public servant.[27]
The Explanatory Memorandum states that funding of $1.36 million
over four years was provided in the 2009-10 Budget to fund the
establishment of the Office of the National Security Legislation
Monitor. Portfolio responsibility for the Monitor will be with the
Department of Prime Minister and Cabinet as the coordinating
Department for national security and counter-terrorism
policy.[28]
There are five key issues that will be explored in this Bills
Digest:
- The functions of the Monitor and how they fit into the national
security legislative framework.
- The similarities and differences of the Monitor with the United
Kingdom s independent reviewer of terrorism legislation.
- Determining and prioritising certain aspects of the terrorism
laws for review.
- The Monitor s mandate to review legislation from a human rights
perspective and how this might work in practice, with or without a
national charter of human rights.
- The need to clarify the independence of the Monitor by
expressly allowing him or her to self-initiate reviews.
Many of the submissions to the 2008 Senate Committee Inquiry
noted the need for greater clarification of the role and function
of the Independent Reviewer. Indeed, the second recommendation from
the Committee was that the Bill be amended to comprehensively
describe the role and function of the Independent Reviewer, and
enumerate the criteria by which legislation should be
reviewed.[29] This
is not simply fixed by listing criteria in isolation of the
existing administrative and political landscape. There needs to be
thorough consideration of what is already regularly reviewed, what
is reviewable by existing agencies such as the Commonwealth
Ombudsman or Parliamentary Committees and what legislation can
reasonably be expected to be regularly reviewed.
This Bill has addressed the Senate Committee s concerns by
listing the legislation and enumerating the criteria which the
Monitor must consider. The Bill is also consistent with the
recommendations from previous reviews to put in place a Monitor or
similar review mechanism. The Government has further indicated that
it will establish a Parliamentary Joint Committee on Law
Enforcement to extend parliamentary oversight to include the
Australian Federal Police.[30] Explicitly, the proposed National Security Legislation
Amendment Bill 2009 and the Parliamentary Joint Committee on Law
Enforcement Bill 2009 are further measures intended to implement
the Government s response to various reviews of national security
legislation, taking into account the outcomes of public
consultation .[31]
The Government has not suggested whether the Monitor will be able
to review, or take references from, the proposed Parliamentary
Joint Committee on Law Enforcement. If the Monitor had this
capacity, it could improve the effectiveness and independence of
the Monitor. Further, the functions of the Monitor as they are
currently drafted will not allow the appointed person to review the
provisions of any bills before Parliament.
A number of submissions to the 2008 Senate Committee Inquiry, in
particular submissions from the Gilbert & Tobin Centre for
Public Law and the Law Council of Australia, mount a strong
argument in favour of adopting a model similar to that of the
Independent Reviewer in the Untied Kingdom:
The current Independent Reviewer [in the UK] is
Lord Carlile of Berriew QC. His reports have proved to be a
valuable contribution to the debates on terrorism law in the UK and
have provided the public, the Government and the Parliament with
valuable information, insights and suggestions for reform.[32]
Without delving too much into the history of the establishment
of the Independent Reviewer in the United Kingdom, it is
interesting to note that the debate in Australia is following a
similar line. Take for example, the words of Lord Denning in the
House of Lords debates on the Prevention of Terrorism Bill in
1984:
The whole object of this amendment, as I
understand it, is to have a commission. I had, at one time, a good
deal to with inquiry into security matters. I should have thought a
commission was extremely good [T]hey should have suitable Privy
Counsellors who will be able to inquire, not into actual details of
individual cases but into how the Secretary of State is exercising
his powers in this regard. That can only be done if they are
monitored and a report is made to Parliament from time to time so
that we can see that these exceptional powers have been well
exercised.[33]
While the Government has drawn parallels between the United
Kingdom Reviewer and the proposed Monitor, the functions are a
little different. In particular, the Law Council has explicitly
noted that:
the functions of the National Security
Legislation Monitor as outlined in clause 6 of the National
Security Legislation Monitor Bill differ from those attributed to
the UK Independent Reviewer of Terrorism Laws in an important
respect. Unlike the UK Independent Reviewer, the National Security
Legislation Monitor has no specific role in respect of the issuing
of control orders.
One of the tasks of the UK Independent Reviewer
is to replicate exactly the position of the Home Secretary at the
initiation of a control order. The UK Independent Reviewer is given
the same information as that provided to the Home Secretary, and
draws a conclusion as to whether a control order should have been
issued in each case. To date, Lord Carlile has reached the
conclusion that in each case, a control order should have been
made. However he has, on occasion, disagreed with the conditions
imposed by control orders.[34]
Another model that the Parliament could consider in this regard
is the Public Interest Monitor in Queensland (PIM). The PIM
considers whether law enforcement authorities use of search
warrants and Criminal Code (Cth) control orders is
appropriate. It is inconsistent that these can presently only be
reviewed (in this manner) in Queensland.[35] Whatever the final parameters of the
Monitor look like, an Australian monitor should have independence
of mind, political independence and a willingness to think out of
the box and look in a conceptual way at counter-terrorism law and
policy , according to Lord Carlile [36].
In September 2005, the Council of Australian Governments (COAG)
agreed to a review after five years of the operation of the new
provisions that were introduced in 2005.[37] This review would therefore be
scheduled to start in December 2010 and would cover the laws in the
Crimes Act 1914 and the Criminal Code allowing
broader police powers, control orders, preventative detention
orders, as well as the definition of terrorist organisation and
terrorist financing provisions. Cooperation from the States and
Territories is necessary for a strong national security regime and
is also necessary from a constitutional law perspective where the
Commonwealth relies on a referral of State and Territory power to
enact comprehensive laws relating to terrorism.[38] However, the present COAG is not
required, or even obliged to commence this review. Depending on how
timely this Bill progresses, the Prime Minister might refer these
laws as a matter of priority to the newly appointed Monitor for
review. The Attorney-General has stated that the Government will
refer to aspects of the legislation to the Monitor once the office
is established. These will be the offence of associating with a
terrorist organisation, and strict liability aspects of other
terrorism offences .[39]
Alternatively, the Sydney Centre for International Law has
recommended that:
a specific provision should be made for
mandatory review (within six months of the commencement of the Act)
of detention powers under Division 2 of Part IC of the Crimes
Act 1914 (Cth) and Division 105 of the Criminal Code Act
1995 (Cth). These Divisions of the Crimes Act and Criminal
Code Act relating to the detention of person are potentially the
most invasive of human rights. It is therefore important to
ensure that they are assessed by the Monitor in a timely
manner. The urgency of such an assessment means that it should be
made the Monitor s first priority.[40]
The definition of Australia s counter-terrorism and national
security legislation in the Bill appear broad because ability to
consider laws that relate to specific sections, Parts or Divisions
of existing terrorism-related provisions. However, it is a
significant flaw that the definition does not include bills before
Parliament relating to counter-terrorism or national security.
One of the most significant aspects of the Bill is that the
Monitor s powers and functions expressly provide for consideration
of appropriate safeguards for protecting the rights of individuals
(Proposed subsection 6(b)(i)) as well as Australia
s international obligations (proposed section 8).
The broad drafting of these provisions is to be applauded on the
one hand but may be problematic in practice. For example, if the
Monitor is to look at how the terrorism laws are consistent with
Article 19 (freedom of expression) of the ICCPR:
there is little doubt that the selected
counter-terrorism provisions of the Criminal Code do limit
free expression. The real question therefore is whether the extent
to which they restrict expression and the manner in which the
restriction apply fall within the boundaries of permissible
restrictions. This is a problematic and complex area of
international free expression law [41]
Furthermore, submissions to both Senate the 2008 and current
Inquiries were emphatic in the view that the appointment of the
Monitor should not be seen as a substitute or alternative to the
enactment of legislative safeguards to ensure individual rights are
protected within Australian terrorism legislation.[42]
The Government-appointed National Human Rights Consultation is
presently considering (amongst other things) the arguments for and
against a charter of human rights for Australia and is due to
report by 30 September 2009. If a charter of rights was adopted, it
would be appropriate for the functions of the Monitor to be
subsequently amended to make explicit reference to such a charter
or at minimum, the rights that it will contain. If the Australian
Government decides not to enact a charter of rights, it should
certainly consider expanding the mandate of the Monitor to review
proposed terrorism laws:
The Monitor should be given power to review
proposed amendments in regard to their
operation, effectiveness and implications , including
consistency with the rights protected by the ICCPR. Similarly, the
Independent Reviewer in the United Kingdom is required to report on
the implications for the operation of the Prevention of
Terrorism Act of any proposal made by the
Secretary of State for the amendment of the law relating to
terrorism . The Security Legislation Review Committee in its
June 2006 report has also recommended that part of the Independent
Reviewer s report should include comment on the implications
for the operation and effectiveness of part 5.3 [of the Criminal
Code] of any Government proposals for the amendment of terrorism
laws .[43]
Indeed, Australia s lack of a charter of rights bolstered the
need for a monitor to ensure anti-terrorism laws were applied to
protect national security, while upholding civil liberties
.[44]
The drafting of the Bill does not make it explicitly clear that
the Monitor can initiate and report on his or her own inquiries.
The Explanatory Memorandum states that section 6 of the Bill allows
the Monitor to initiate a review but the Bill as currently drafted
does not contain an express provision to this effect. If such an
interpretation is not read into the Bill, the Monitor would have no
function unless it received a reference from the Prime Minister.
Moreover, the Prime Minster s reference powers are limited to
matters relating to counter-terrorism or national security, not
initiating legislative review of the legislation listed in
proposed section 6. In support of this analysis,
the Law Council further notes:
even if the functions contained in clause 6 are
interpreted in a manner broad enough to empower the National
Security Legislation Monitor to initiate his or her own
investigations, the only place the National Security Legislation
Monitor could report on such investigations would be in his or her
Annual Report, which may be prepared up to six months after the
period of review.[45]
Similarly, Professor Clive Walker has argued that an independent
reviewer of terrorism laws should not have to await the pleasure of
the government as to the terms on which the debate takes place
.[46] The Law
Council also noted these words from Professor Walker and it further
questions the true independence of the proposed review
mechanism.
The Human Rights Law Resource Centre (HRLRC) and the Public
Interest Law Clearing House (PILCH) have also noted this apparent
inconsistency between the Explanatory Memorandum which states
clause 6 also provides that the Monitor will be able to initiate
his or her own reviews and in the absence of any such provision in
the Bill. PILCH and the HRLRC consider such a fundamental power
should be explicitly provided for in clause 6.[47]
The submission from the Gilbert and Tobin Centre for Public Law
also noted concern that there is no explicit mention in section 6
of the Monitor s power to conduct inquiries upon his or her own
initiative (beyond the obligation to lodge an annual report in
section 29). At times, the Independent Reviewer in the United
Kingdom has produced reports on his own volition and the Monitor
should certainly possess a similar capacity.[48] Arguably proposed subsection
6(3) could allow for the Monitor to self-initiate a review
(by having the power to do all things necessary in the connection
with the performance of the Monitor s functions) but this is not
clear.
The Law Council is disappointed that the term independent does
not feature in the title of the National Security Legislation
Monitor Bill or in the title of the Monitor itself .[49] The International
Commission of Jurists also expressed disappointment that the
intended impartiality and independence of the reviewer was not
recognised in the title of the Monitor of the Bill:
The International Commission of Jurists
Australia submits that impartiality and independence would have
been guaranteed further if the word independent was included in
both the title of the Bill and in the title of the Monitor as is
the case in the United Kingdom.[50]
There is cause for concern about the Prime Minister being the
only body or person with the ability to refer a matter to the
Monitor. This seems at odd at least with the purpose of the
appointment of a Monitor to primarily assist Ministers (see
proposed section 3). As the Law Council notes,
this invests the Executive Government with considerable control
over the activities of the National Security Legislation
Monitor.[51] The
Law Council therefore suggests a clause in the Bill that would
allow the Parliamentary Joint Committee on Intelligence and
Security to refer a matter relating to counter-terrorism or
national security to the Monitor and requiring the Monitor to
report back to the Committee on that reference.[52] The International Commission of
Jurists Australia has a similar but broader suggestion and that is
to consider widening the referral process to include relevant
government organisation and persons, particularly those persons
with whom the Monitor will be able to liaise (as per section 10).
They suggested that the Senate Committee consider the inclusion of
State and Territory Attorneys General in the referral process.
[53]
In its submission to the current Senate Inquiry, the Law Council
of Australia has noted the following features require careful
consideration:
- the absence of a specific reference to Australia s
international human rights obligations in clause 6 outlining the
functions of the National Security Legislation Monitor;
- the absence of a reference power for any body other than the
Prime Minister;
- the absence of a specific requirement that the National
Security Legislation Monitor exercise his or her coercive
information gathering powers in accordance with the principles of
natural justice and procedural fairness;
- the absence of detail in the National Security Legislation
Monitor Bill regarding the structure and resources of the National
Security Legislation Monitor; and
- the ability of the Executive Government to exercise control
over the publication of the content of the National Security
Legislation Monitor s reports.[54]
In the second reading speech, Senator Penny
Wong stated that:
In reviewing the legislation, the Monitor must
have regard to Australia s international obligations, such as the
International Convention [sic] on Civil and Political Rights and
United Nations counter-terrorism instruments as well as the agreed
national counter-terrorism arrangements between the Commonwealth,
States and Territories.[55]
However, even if the Monitor does have regard to these
obligations and instruments, it is important to note that the Bill
does not place any obligation on the Government to implement the
recommendations, if any, arising from a review. While such an
obligation cannot be expected, an amendment to the Bill to place an
obligation on the Prime Minister to respond within a specified time
frame might be appropriate.
Proposed section 3 of the Bill outlines the
object of the Bill. Once this Bill is enacted, a Monitor is to be
appointed. The Monitor will assist Ministers in ensuring that
Australia s counter-terrorism and national security
legislation:
- is effective in deterring and preventing terrorism and
terrorism-related activity which threatens Australia s security;
and
- is effective in responding to terrorism and terrorism-related
activity; and
- is consistent with Australia s international obligations,
including human rights obligations; and
- contains appropriate safeguards for protecting the rights of
individuals.
Proposed section 4 is a definitions section
defining certain terms used in the Bill. Of particular note is the
definition of counter-terrorism and national security legislation .
This term is intended to cover the following provisions:
- Division 3 of Part III of the Australian Security
Intelligence Organisation Act 1979 and any other provisions of
that Act as far as it relates to that Division [deals with powers
in relation to questioning warrants in relation to terrorism
offences];
- Part 4 of the Charter of the United Nations Act 1945
and any other provision of that Act as far as it relates to that
Part [deals with Security Council decisions in relation to
terrorism and asset listing];
- the following provisions of the Crimes Act 1914:
- Division 3A of Part IAA and any other provision of that Act as
far as it relates to that Division [contains powers to stop,
question and search persons in relation to terrorist acts];
- Sections 15AA and 19AG and any other provisions of that Act as
far as it relates to those sections [relating to bail and
non-parole periods];
- Part IC, to the extent that the provision of that Part relate
to the investigation of terrorism offences (within the meaning of
that Act), and any other provision of that Act as far as it relates
to that Part [deals with the investigation of Commonwealth
offences];
- Chapter 5 of the Criminal Code and any other provision
of that Act as far as it relates to that Chapter [offences such as
treason, sedition, espionage and terrorism];
- Part IIIAAA of the Defence Act 1903 and any other
provision of that Act as far as it relates to that Part [ordering
the intervention of the Defence Force to protect persons from
serious violence];
- the National Security Information (Criminal and Civil
Proceedings) Act 2004 [relating to disclosure in court
proceedings if prejudicial to national security].
Other terms that are defined in this section are head, law
enforcement or security agency, National Security Legislation
Monitor, operationally sensitive information, responsible Minister,
secrecy provision.
Proposed section 6 is a significant provision.
This is the section that purportedly allows the Monitor to
self-initiate a review of counter terrorism and national
security legislation (a defined term) as well as related
legislation. It outlines that the National Security Legislation has
the following functions (proposed subsection
6(1)):
- (a) to review the operation, effectiveness
and implications of:
- Australia s counter-terrorism and national security
legislation; and
- Any other law of the Commonwealth to the extent that it relates
to Australia s counter-terrorism and national security
legislation;
- (b) to consider whether Australia s
counter-terrorism and national security legislation:
- contains appropriate safeguards for protecting the rights of
individuals; and
- remains necessary;
Proposed subsection 6(2) is a provision that
clarifies what is not a function of the Monitor. In
particular, proposed paragraph 6(2)(a) states that
it is not a function of the Monitor to review the priorities of,
and use of resources by, agencies that have functions relating to,
or are involved in the implementation of, Australia s
counter-terrorism and national security legislation. Further,
proposed paragraph 6(2)(b) prohibits the Monitor
from considering any individual complaints about the activities of
Commonwealth agencies that have functions relating to, or are
involved in the implementation of, Australia s counter-terrorism
and national security legislation. This is because individual
complaints are dealt with through existing agencies such as the
Commonwealth Ombudsman.
Proposed subsection 6(3) allows the Monitor the
power to do all things necessary or convenient to be done for, or
in connection with, the performance of the Monitor s functions. As
indicated earlier, this could be interpreted as allowing the
Monitor capacity to self-initiate reviews to fulfil his or her
functions. A report on a self-initiated review could only be
published as part of the annual report.
References to the Monitor are provided for in proposed
section 7. Following proposed section
6(c) which provides that the Monitor is to report on a
reference received from the Prime Minister, proposed
section 7 outlines the terms on which a reference may be
made. The Prime Minister may refer a matter (at the Monitor s
suggestion or on his or her own initiative) relating to
counter-terrorism or national security to the Monitor.
Significantly, this can be as broad or as narrow as the Prime
Minister sees fit and the terms of a reference may be altered. The
Explanatory Memorandum notes that this section is modelled on the
provisions in the Australian Law Reform Commission Act
1976.
Proposed section 8 requires the Monitor to have
regard to Australia s obligations under international agreements
(as in force from time to time) (proposed subsection
8(a)) and arrangements that are agreed from time to time
between the Commonwealth, the States and the Territories to ensure
a national approach to countering terrorism (proposed
subsection 8(b)).
A further requirement of the Monitor is, under proposed
section 9, to give preference to legislative provisions
that have been applied, considered or purportedly applied by
employees of agencies that have functions relating to, or are
involved in the implementation of, that legislation. This applies
to legislation during that financial year or the immediately
preceding financial year.
Proposed paragraph 10(1)(a) will require the
Monitor to have regard to the functions of the agencies that have
functions relating to, or are involved in the implementation of the
counter-terrorism and national security legislation. Further,
proposed paragraph 10(1)(b) will also require the
Monitor to have regard to functions relating to that legislation
that are conferred on a person who holds any office or appointment
under a law of the Commonwealth or of a State or Territory. This
will minimise unnecessary reviews of other agencies functions that
are currently reviewed under different arrangements.
Consultation with other agencies is prescribed in
proposed section 10(2) and will allow the Monitor
to consult with the head of any relevant agency, the Ombudsman, the
Inspector-General of Intelligence and Security or a similarly
appointed person mentioned in proposed
paragraph 10(1)(b).
Division 2 contains provisions relating to the
appointment of the National Security Legislation Monitor. The
provisions are fairly standard for such an appointment and are not
controversial, with some exceptions. Proposed subsection
11(1) notes that the position is a part-time appointment.
Proposed subsection 11(2) also requires that the
Prime Minister consult with the Leader of the Opposition before
making a recommendation to the Governor-General for the
appointment. The Governor-General must be of the opinion that the
person is suitable for appointment because of the person s
qualifications, training or experience (proposed subsection
11(3)).
Proposed section 12 outlines that the period of
appointment must be specified in the instrument of appointment and
must not exceed 3 years. The Monitor is only able to be reappointed
once under proposed subsection 12(2).
Proposed sections 13-20 set out processes
relating to remuneration, leave, disclosure of interests,
resignation and termination of appointment. These provisions are
not controversial in themselves although there is insufficient
detail as to the structure, public administration and resource
arrangements of the Monitor.
Proposed subsection 13(1) requires the Monitor
to be paid such remuneration as is determined by the Remuneration
Tribunal. If there is no operative determination, the Monitor can
be remunerated as prescribed by the regulations. Further,
proposed subsection 13(2) requires that the
Monitor be paid the allowances prescribed by the regulations.
The Monitor may be granted a leave of absence by the Prime
Minister under proposed section 14, on specific
terms and conditions determined by the Governor-General.
Proposed section 15 requires that the Monitor must
not engage in any paid employment that conflicts, or may conflict,
with the performance of his or her duties without the Prime
Minister s written consent.
Proposed section 16 requires the Monitor to
give written notice to the Prime Minister of all interests,
pecuniary or otherwise, that the Monitor has or acquires and that
conflict or could conflict with the proper performance of his or
her functions.
Proposed section 18 addresses matters relating
to resignation and proposed section 19 outlines
the conditions that must be met before the Governor-General can
terminate the appointment of the Monitor. Proposed
subsection 19(1) allows the Governor-General to terminate
the appointment for misbehaviour or physical or mental incapacity.
Proposed subsection 19(2) states that the Governor‑General must terminate the
appointment of the National Security Legislation Monitor:
- if the Monitor:
- becomes bankrupt; or
- applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors; or
- compounds with his or her creditors; or
- makes an assignment of his or her remuneration for the benefit
of his or her creditors; or
- if the Monitor fails, without reasonable excuse, to comply with
section 16; or
- if the Monitor engages, except with the Prime Minister s
written consent, in paid employment that conflicts or may conflict
with the proper performance of the Monitor s duties; or
- if the Monitor is absent, except on leave of absence granted
under section 14, for 7 consecutive days or for 14 days in any
12 months.
The appointment provisions also provide, in proposed
section 20, for the appointment of an Monitor in the event
of a vacancy or period of absence of less than 12 months.
Part 3 of the Bill contains provisions relating
to the information gathering powers that the Monitor may use in the
course of his or duties. This Part also contains offences relating
to a person s failure to assist the Monitor in particular ways.
These provisions are in proposed section 25.
Proposed section 21 allows the Monitor to hold
a hearing for the purposes of performing his or her functions under
the Act. The hearings must be held in public unless the Monitor
directs that a hearing or part of a hearing be held in private.
Hearings must also be private during any time which a person is
giving evidence that discloses operationally sensitive information
(a defined term). A person may, under proposed section
22, by written notice, be summoned to attend a hearing to
give evidence or produce documents or things as specified.
The information-gathering powers given to the Monitor are
similar to those given to Commonwealth intelligence and law
enforcement agencies who are permitted to conduct examinations.
Proposed section 23 outlines that the Monitor
may require a person to take an oath or make an affirmation.
Failure to do so is an offence under proposed subsection
25(2). Further, the Monitor may issue a written notice to
produce information, documents or things referred to in the notice
(proposed section 24). Failure to do so is an
offence under proposed section 25(3).
Each offence in proposed section 25 carries a
maximum penalty of imprisonment for 6 months or 30 penalty units,
or both. A penalty unit is $110.[56] Proposed subsections 25(5) and
(6) provide for a person to use the defence of reasonable
excuse for the offences. It is a reasonable excuse for a person to
fail to answer a question, produce a document or thing or provide
information, on the ground that to do so might tend to incriminate
the person or expose the person to a penalty. Presumably, a
Minister would also be able to claim public interest immunity
against the production of documents.
Proposed section 26 clearly states that a
person who is served with a notice under section 22 (summon to
attend) or section 24 (notice to produce) does not commit an
offence because they assist the Monitor in the following ways:
- answer a question at a hearing that the Monitor requires the
person to answer; or
- provides information that the person is required to provide in
accordance with the notice; or
- produces a document or thing that the person is required to
produce in accordance with the notice.
The Explanatory Memorandum notes that this provision
must be viewed in light of the Monitor s
functions and the protection of operationally sensitive information
in other provisions of the Act. This is designed to encourage
people to assist the Monitor in the conduct of inquiries as fully
as possible.[57]
The effectiveness of the Monitor is enhanced by proposed
section 27 which permits him or her to retain documents or
things. The Monitor may take possession of, and make copies of, the
document or thing, or take extracts from the document
(Proposed subsection 27(1)(a)); and may retain
possession of the document or thing for such period as is necessary
for the performance of the Monitor s function under this Act
(proposed paragraph 27(1)(b)). However, the
Monitor must allow a person who would otherwise be entitled to
possession of the document or thing, reasonable access to that
document or thing (proposed subsection 27(2)).
If documents provided by an agency have a national security
classification or contain operationally sensitive information,
proposed subsection 28(2) requires the Monitor to
make arrangements for the protection of those documents and ensure
that they are returned as soon as possible to the agency after
examination.
Proposed section 29 outline the requirements
for the preparation and presentation of an annual report relating
to the performance of the National Security Legislation Monitor s
functions as set out in paragraphs 6(1)(a) and (b).
Proposed subsection 29(2) requires that the
annual report is given to the Prime Minister as soon as practicable
after 30 June in each financial year and, in any event, by the
following 31 December. Proposed subsection 29(3)
indicates that the annual report must not contain, amongst other
things, any operationally sensitive information or any information
that would or might prejudice Australia s national security or the
conduct of Australia s foreign relations or the performance by a
law enforcement or security agency of its functions.
Proposed subsection 29(4) requires the Monitor
to seek the advice of the responsible Ministers to determine if the
annual report contains any operationally sensitive information or
material that may be prejudicial to Australia s national security
(amongst other things).
Proposed subsection 29(5) states that the Prime
Minister must present an annual report to each House of the
Parliament within 15 sitting days of that House after the day on
which he or she receives the report. While this is a standard
provision for tabling reports of this kind, it must be noted that
due to the Parliamentary sitting schedule, there could still be a
lengthy period of time between the Prime Minister formally
receiving the report and the actual date of tabling.
However, before presenting an annual report to each House of the
Parliament, the Prime Minister must be satisfied that the annual
report does not contain information referred to in subsection 29(3)
(proposed subsection 29(6)). If, because of
subsection (3), the Monitor excludes information from an annual
report, the Monitor must prepare and give to the Prime Minister a
supplementary report that sets out that information
(proposed subsection 29(7)).
Proposed subsection 29(8) explicitly states
that section 34C of the Acts Interpretation Act 1901 does
not apply in relation to a report given to the Prime Minister under
this section. Section 34C of that Act requires periodic reporting
on activities and administration of a person (commission,
authority, committee, organisation etc) or an Act. Section 34C(8)
excludes the Australian Security Intelligence Organisation, the
Australian Secret Intelligence Service or the Office of National
Assessments from this requirement. Similarly then, the exclusion of
the Monitor is appropriate.
Proposed section 30 outlines the reporting
requirements for a reference by the Prime Minister under section 7.
Proposed subsection 30(1) requires the Monitor to
report to the Prime Minister on a reference. The Monitor may,
before giving his or her report on a reference, give an interim
report to the Prime Minister on the Monitor s work on the
reference. The Prime Minister also may direct the Monitor to give
an interim report to the Prime Minister on the Monitor s work on
the reference. There is no obligation to table a report on a
reference in the Parliament.
Part 5 of the Bill contains two standard
miscellaneous provisions relating to immunity and regulations.
Proposed section 31 prohibits any action, suit or
proceeding may be brought against a person who is, or has been, the
Monitor in relation to anything done, or omitted to be done, in
good faith by the Monitor: (a) in the performance, or purported
performance, of his or her functions; or (b) in the exercise, or
purported exercise, or his or her powers. Proposed section
32 allows for regulations to be made under the Act as
necessary or convenient.
This Bill is fulfilling a policy commitment made by the
Australian Government in December 2008. While the concept and need
for an independent reviewer of terrorism laws has widespread
support with academics, media politicians, and indeed previous
Committee reviews, the drafting of this Bill limits the
independence and flexibility of the Monitor. A review mechanism of
this kind needs to have a clearer function and purpose to ensure it
is robust and effective. Furthermore, the explanatory memorandum
and second reading speech are silent on how this Monitor will fit
within existing and proposed review mechanisms. The Senate
Committee Inquiry into this Bill should address these weaknesses to
encourage a more vigorous review mechanism.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2430.
Monica Biddington
12 August 2009
Bills Digest Service
Parliamentary Library
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