Bills Digest no. 65 2013–14

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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.

Cat Barker
Foreign Affairs, Defence and Security Section
6 May 2014

 

Contents

Purpose of the Bill

Background

Committee consideration

Policy position of non-government parties/independents

Policy position of major interest groups

Financial implications

Statement of Compatibility with Human Rights

Key issue: whether the INSLM’s functions are duplicated elsewhere

Key issue: ongoing monitoring role

Provisions

Concluding comments

Appendix: Summary of oversight mechanisms and comparison to INSLM’s functions

 

Date introduced:  19 March 2014

House:  House of Representatives

Portfolio:  Prime Minister

Commencement: The later of 21 April 2014 and the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Independent National Security Legislation Monitor Repeal Bill 2014 (the Bill) is to repeal the Independent National Security Legislation Monitor Act 2010 (the Act) to abolish the Office of the Independent National Security Legislation Monitor (INSLM).

Background

Independent National Security Legislation Monitor Act 2010

The Act establishing the INSLM commenced on 14 April 2010. Under subsection 6(1) of the Act, the INSLM has the following functions:

(a) to review, on his or her own initiative, the operation, effectiveness and implications of:

        (i) Australia’s counter‑terrorism and national security legislation; and

(ii) any other law of the Commonwealth to the extent that it relates to Australia’s counter‑terrorism and national security legislation;

(b) to consider, on his or her own initiative, whether any legislation mentioned in paragraph (a):

        (i) contains appropriate safeguards for protecting the rights of individuals; and

        (ii) remains proportionate to any threat of terrorism or threat to national security, or both; and

        (iii) remains necessary;

(c) if a matter relating to counter‑terrorism or national security is referred to the Monitor by the Prime Minister—to report on the reference;

(d) to assess whether Australia’s counter‑terrorism or national security legislation is being used for matters unrelated to terrorism and national security.[1]

Section 8 provides that, in performing these functions, the INSLM must have regard to:

• Australia’s obligations under international agreements including those relating to human rights, counter‑terrorism and international security and
• arrangements between the Commonwealth, state and territory governments on a national approach to countering terrorism.

Section 4 provides that the provisions subject to review are:

• Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) (special powers relating to terrorism offences)[2]
• Part 4 of the Charter of the United Nations Act 1945 (implementing United Nations Security Council decisions on terrorism and dealings with assets)[3]
• Division 3A of Part IAA (powers in relation to terrorist acts and terrorism offences), section 15AA (bail not to be granted in certain cases), section 19AG (non-parole periods for sentences for certain offences) and Part IC (investigation of Commonwealth offences—to the extent that it relates to investigation of terrorism offences) of the Crimes Act 1914[4]
• Chapter 5 of the Criminal Code (offences relating to the security of the Commonwealth, including treason and urging violence, espionage and similar activities, terrorism, terrorism financing and harming Australians; provisions relating to proscription of terrorist organisations; control orders and preventative detention orders)[5]
• Part IIIAAA of the Defence Act 1903 (use of the Australian Defence Force to protect Commonwealth interests and states and territories)[6]
• any other provision of any of the Acts set out above, as far as it relates to the provisions identified above
• the National Security Information (Criminal and Civil Proceedings) Act 2004 and[7]
• any other Commonwealth law to the extent that it relates to any of the above legislation.

Part 3 of the Act provides information gathering powers for the INSLM, including the ability to conduct public and private hearings, summon witnesses and require the production of documents and things.

Part 4 of the Act requires the INSLM to report annually to the Prime Minister, and for the Prime Minister to table such reports (or the unclassified versions) in Parliament within 15 sitting days.

The establishment of the INSLM implemented recommendations made in several reviews and inquiries, in particular:

• the Security Legislation Review Committee (known as the Sheller Review, 2005–06)
• the Parliamentary Joint Committee on Intelligence and Security’s 2006 review of security and counter‑terrorism legislation
• the Senate Standing Committee on Legal and Constitutional Affairs 2008 inquiry into a Private Senators’ Bill to establish an Independent Reviewer of Terrorism Laws and
• the 2008 report of the inquiry into the case of Dr Mohamed Haneef.[8]

Independent National Security Legislation Monitor

While the Act commenced in April 2010, Bret Walker SC was not appointed as INSLM until April 2011.[9]

At the time of writing, the INSLM had produced three annual reports. As explained in the third of these, a full review each year of all the legislation within the INSLM’s remit has not been possible, and the INSLM’s reports are therefore ‘cumulative, intended to be understood together’.[10]

In the 2010–11 report, which covered a period of just two months, the INSLM identified 63 ‘issues for consideration’ during his first term[11]

In the 2011–12 report, which focused on the control order and preventative detention order regimes, ASIO’s special counter-terrorism powers and the statutory definition of ‘terrorism’, the INSLM made 21 recommendations, key among them:

• repeal of the control order regime (Division 104 of the Criminal Code)
• repeal of the preventative detention order regime (Division 105 of the Criminal Code) and
• repeal of ‘questioning and detention’ warrants (Subdivision C, Division 3, Part III of the ASIO Act).[12]

In the 2012–13 report, which focused on the remaining issues for consideration identified in the 2010–11 report, the INSLM made 30 recommendations in relation to:

• enhancing powers and offences under the Charter of the United Nations Act 1945
• streamlining the listing, designation and proscription of terrorist organisations under the Criminal Code (including a recommendation to replace any listings of parts of such organisations with listings of the whole organisations)
• amending exceptions to offences in the Criminal Code concerning association with terrorist organisations and
• amending provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004, including extending the Act’s application (with appropriate adaptations) to proceedings in all courts and Commonwealth tribunals.[13]

The Explanatory Memorandum states that the Government anticipates a ‘fourth and final’ report from the INSLM in April 2014.[14] The INSLM’s website indicates the parameters for what will be covered in the final report:

The INSLM is currently conducting a review of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (“Foreign Incursions Act”), the terrorism offences under Part 5.3 of the Criminal Code Act 1995 (Cth) (“Criminal Code”) and Part IIIAAA of the Defence Act 1903 (Cth) (“Defence Act”). It is likely that the review will extend to a review of the powers to refuse to issue or to cancel Australian passports under the Australian Passports Act 2005 (Cth) (“Passports Act”). The Foreign Incursions Act and Passports Act are related laws for the purpose of subpara 6(1)(a)(ii) of the Act (being “any other law of the Commonwealth to the extent that it relates to Australia’s counter-terrorism and national security legislation”).

The INSLM is also considering the issues raised in Appendix 3 of the INSLM’s First Annual Report in regards to secs 15AA and 19AG of the Crimes Act 1914 (Cth) (“Crimes Act”) (bail and non-parole periods in relation to terrorism) as well as Div 3A of Part IAA of the Crimes Act (powers in relation to terrorist acts and terrorism offences) and Part IC of the Crimes Act (police investigation powers in relation to those arrested for terrorism offences).

In carrying out the review, the INSLM will be considering the threat posed by Australians travelling abroad to engage in terrorist or foreign incursion activity and the potential for them to return to Australia with an increased capability to commit terrorist acts.[15]

Government response to INSLM reports

In his 2012–13 report, the INSLM expressed frustration at the apparent lack of any government response to his previous recommendations:

… there has been no apparent response to any of the twenty-one recommendations made on 20th December 2012 by the INSLM (nor indeed to any of the forty-seven recommendations made by the COAG Review of Counter‑Terrorism Legislation delivered on 1st March 2013).

The functions of the INSLM go no further than review, report and recommendation. The INSLM Act was enacted explicitly in recognition of the grave threat of terrorism and the significance of widespread concerns that the best balance be struck by Australia’s legislation to counter terrorism. 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. That would be, in the opinion of the INSLM, a regrettable atmosphere in which future and continued assessment and improvement of Australia’s CT Laws are undertaken.[16]

While successive governments have not always fulfilled such requirements in practice, they have committed to respond to Senate Committee reports within three months and House of Representatives Committee reports within six months.[17] No such commitment has been made in relation to the reports of the INSLM. However, for the role of INSLM to effectively fulfil its purpose, its recommendations must receive the attention of the Government.

In his second reading speech for the Bill, the Parliamentary Secretary to the Prime Minister indicated that the Attorney-General’s Department is leading development of a Government response to the INSLM’s reports.[18]

Basis of policy commitment

In the lead up to the 2013 federal election, the Coalition announced that if it formed government, it would implement a range of measures designed to boost productivity and reduce regulation. One of those measures was the setting aside of at least two parliamentary sitting days each year ‘for the express purpose of repealing counterproductive, unnecessary or redundant legislation and consequently removing associated regulations’.[19] The Bill is one of several Bills introduced for the first ‘repeal day’.[20]

The Government has stated that it ‘remains firmly in support of independent oversight of counter-terrorism and national security legislation’, but that it considers this can be achieved through other existing mechanisms, such as the Inspector-General of Intelligence and Security (IGIS); Australian Commission for Law Enforcement Integrity (ACLEI); Parliament; Parliamentary committees on law enforcement and intelligence and security; and executive powers to appoint ad hoc reviews:

The government considers the best way forward is to work through the large number of recommendations made by the monitor and to continue engaging with the extensive range of existing independent oversight bodies.

…

Together, there has been, and will remain, a comprehensive body of independent reviews of the government's counter-terrorism and national security legislation.[21]

Committee consideration

Senate Standing Committee on Legal and Constitutional Affairs

The Bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 2 June 2014. Details of the inquiry are at the inquiry homepage.[22]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills made no comment on the Bill.[23]

Parliamentary Joint Committee on Human Rights

In its Fifth Report of the 44th Parliament, the Parliamentary Joint Committee on Human Rights pointed to the explicit role of the INSLM under the Act in ensuring that Australia’s counter-terrorism and national security legislation is consistent with Australia’s international human rights obligations.[24] It went on to note that the extensive coercive and invasive powers in Australia’s counter-terrorism and national security legislation have implications for a range of human rights, including ‘freedom from arbitrary detention; the right to a fair trial (and the minimum guaranteed protections therein); the right to privacy; freedom of movement; freedom of expression; freedom of association; protection of the family, including children’s rights; and the right to equality and non-discrimination’.[25]

Accordingly, the Committee sought further information from the Prime Minister on:

• how the Government will continue to ensure Australia’s counter-terrorism and national security legislation contains appropriate safeguards and remains proportionate and necessary in the absence of the INSLM and
• the stage the Government has reached in its consideration of the INSLM’s recommendations, ‘particularly those recommendations which were made on the basis of concerns about the compatibility of existing measures with Australia’s international human rights obligations’.[26]

Policy position of non-government parties/independents

The Australian Greens have committed to opposing the Bill:

Expert oversight of Australia's counter-terrorism laws cannot be called "red tape", Australian Greens spokesperson for legal affairs Senator Penny Wright has said.

….

"The Australian Greens will be blocking this repeal because the government should not be hiding from independent advice about human rights infringements.

"Not only should the Monitor be saved, but the Federal Government should start listening to his advice about making sure national security laws do not impinge on people's freedoms."[27]

At the time of writing, none of the other non-government parties or independents appeared to have made any public statement on the Bill.

Policy position of major interest groups

At the time of writing, no submissions to the Senate Standing Committee on Legal and Constitutional Affairs had been made available on the inquiry page. However, legal, human rights and civil liberties organisations, which largely supported the establishment of the INSLM, are likely to oppose its abolition.[28] The New South Wales Council for Civil Liberties and the Pirate Party Australia have both issued statements claiming that the INSLM remains necessary and calling for it to be retained.[29]

Financial implications

According to the Explanatory Memorandum, abolition of the INSLM will save $1.36 million over four years.[30]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill's compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[31] The Statement of Compatibility states that the existence or otherwise of the INSLM ‘does not create or modify any legal rights, duties or liberties which impact on Australia’s compliance with its international human rights obligations’ and concludes that the Bill is compatible because it does not raise any human rights issues.[32]

As noted above in the ‘Committee consideration’ section of this Digest, the Parliamentary Joint Committee on Human Rights has sought information from the Prime Minister on two matters relating to the Bill.

Key issue: whether the INSLM’s functions are duplicated elsewhere

In his second reading speech for the Independent National Security Legislation Monitor Bill 2010, the then Attorney-General stated that the INSLM would complement, but not duplicate, the role of the IGIS and other oversight mechanisms.[33] The Coalition welcomed and supported the legislation, and pointed out during debate that it had attempted to establish a similar role through Private Members’ and Senators’ Bills in 2008.[34] Further, as noted above, several inquiries that reported from 2006 onwards resulted in recommendations for an independent reviewer to be established in addition to the existing oversight framework that applied. In making its recommendation, one of the components of that framework, the Parliamentary Joint Committee on Intelligence and Security (PJCIS), stated:

Overall the machinery of governance is well developed in Australia. But the current system is fragmented, limiting the capacity for independent, ongoing and comprehensive examination of how terrorism laws are operating.[35]

All but one of the existing mechanisms identified by the Government as performing independent oversight of counter-terrorism and national security legislation were already in existence when those recommendations were made, and when the legislation establishing the INSLM was passed with bipartisan support.

The Parliamentary Joint Committee on Law Enforcement was established in its current form and given the responsibility for overseeing the AFP from 25 November 2010, having previously been the Parliamentary Joint Committee on the Australian Crime Commission.[36] The Inspector-General of Intelligence and Security Act 1986 was amended effective 25 November 2010 to allow the IGIS to inquire into an intelligence or security matter relating to an agency other than the six key intelligence agencies, but only at the request of the Prime Minister.[37] The mandate of the PJCIS has remained the same over that period.[38] As for ACLEI, its role is to prevent, detect and investigate corruption in law enforcement agencies.[39] Of the functions set out under the Law Enforcement Integrity Commissioner Act 2006, the one that comes closest to legislative oversight is that of making recommendations on matters concerning ‘the need for or the desirability of legislative or administrative action on issues in relation to corruption generally in, or the integrity of staff members of, law enforcement agencies’.[40]

For a summary of the functions of the other mechanisms identified by the Government and comparison to those of the INSLM see the Appendix. While these mechanisms contribute to oversight of Australia’s national security laws, individually and even collectively their remit is limited in comparison to the INSLM. For instance, none of the currently established mechanisms is specifically required to have regard to Australia’s obligations under international agreements when reviewing existing legislation. The extent to which reviews of legislation can be self-initiated is generally also more limited.

Key issue: ongoing monitoring role

As noted above, the INSLM’s review functions include considering whether Australia’s national security legislation remains proportionate to terrorism or national security threats, and whether it remains necessary. This continuing review function is consistent with the reasoning behind the PJCIS’s 2006 recommendation for establishing such a role. The PJCIS considered that in light of the distinctive nature of counter-terrorism laws, including the control order and preventative detention regimes, the case had been made for ‘independent ongoing oversight’.[41]

Jessie Blackbourn and Nicola McGarrity from the Gilbert + Tobin Centre of Public Law have argued that one of the reasons given by the Government for abolishing the INSLM—that all relevant legislation will have been reviewed—misses this point:

The Monitor was not created to review the anti-terrorism laws once and once only; it was established to provide continuing review … What is proportionate today may not be proportionate tomorrow, or next week, or next year, and the act recognised the importance of a periodic review of the laws in light of the threat of terrorism at a particular time.[42]

Provisions

Item 1 of Schedule 1 will repeal the whole of the Act.

Items 2, 3 and 4 will make provision for administrative matters in relation to the abolition of the INSLM, including for an annual report to be provided for 2013–14.

Concluding comments

While several other mechanisms exist or can be created to oversee aspects of Australia’s national security legislation, the specific functions of the INSLM and the ongoing nature of its role mean it has a unique remit. However, given the lack of official response to the INSLM’s reports so far, its abolition may not have a significant impact in practice.

Appendix: Summary of oversight mechanisms and comparison to INSLM’s functions

This Appendix provides:

• a summary of the functions of the other mechanisms specifically identified by the Government in the second reading speech for the Bill as providing ‘independent oversight of counter-terrorism and national security legislation’ and[43]
• an assessment of the extent to which the functions of each of those mechanisms accords with the legislative monitoring functions of the INSLM.

It does not detail all of the functions of each oversight mechanism, but rather focuses on the functions of most relevance in that context.

Inspector General of Intelligence and Security (IGIS)

The IGIS is an independent statutory office holder with responsibility for oversight of the Australian Intelligence Community (AIC), which comprises ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate, the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation and the Office of National Assessments. The functions of the IGIS are set out in sections 8–9A of the Inspector General of Intelligence and Security Act 1986 (IGIS Act).[44]

Under section 8 of the IGIS Act, the IGIS has responsibility for inquiring into the activities of the agencies comprising the AIC to ensure they comply with Australian laws and any directions or guidelines given by the responsible Minister, are proper, and are consistent with human rights. Such inquiries may be initiated at the request of the responsible Minister, on the IGIS’s own motion, or in response to a complaint made to the IGIS.

In addition, under section 9, the Prime Minister may request the IGIS to inquire into:

• a matter relating to one of the agencies comprising the AIC or
• an intelligence or security matter relating to a Commonwealth agency.

The functions of the IGIS are more focused on the actions of agencies and whether they are appropriate within the legislative and other parameters by which they are governed than the appropriateness of the legislation under which they operate. None of the inquiry reports available on the IGIS’s website as at the time of writing relate to reviews of legislation.[45]

The IGIS’s oversight of agencies outside the AIC, such as the AFP, is limited to instances where the IGIS is acting at the request of the Prime Minister.

There is no requirement for reports of the IGIS other than its annual reports to be made public.

Parliamentary Joint Committee on Intelligence and Security (PJCIS)

The PJCIS is established under the Intelligence Services Act 2001 (the ISA). Under subsection 29(1) of the ISA, the functions of the PJCIS are to:

• review the administration and expenditure of the agencies comprising the AIC
• review any matter in relation to one of the AIC agencies referred to it by the responsible Minister or a resolution of either House of Parliament
• review the operation, effectiveness and implications of certain national security legislation as soon as possible after the third anniversary of the day on which the Security Legislation Amendment (Terrorism) Act 2002 receives Royal Assent (this review occurred in 2006, the result being the report in which the PJCIS recommended an independent reviewer)
• review the operation, effectiveness and implications of Division 3 of Part III of the ASIO Act (special powers relating to terrorism offences) by 22 January 2016 and
• report its comments and recommendations to each House of Parliament and the responsible Minister.

Under subsection 29(2), the PJCIS may request that the responsible Minister refer a matter relating to the activities of one or more of the agencies comprising the AIC to it for review.

Section 29 confines the functions of the PJCIS under the ISA to certain matters relating to the agencies comprising the AIC.

Under Division 102 of the Criminal Code, the PJCIS may review a regulation made under that Division proscribing an organisation as a terrorist organisation and report its comments and recommendations to each House of Parliament.

The PJCIS does have a legislative oversight function, but this is currently limited to Division 3 of Part III of the ASIO Act, regulations proscribing terrorist organisations and any reference to it by the responsible Minister or a House of Parliament under the ISA.

Provisions in section 29 of the ISA that require the PJCIS to review certain legislation do not explicitly require that those reviews have regard to Australia’s obligations under international agreements or national counter‑terrorism arrangements or to consider whether the legislation contains appropriate safeguards, and remains proportionate and necessary.

Parliamentary Joint Committee on Law Enforcement (PJCLE)

The PJCLE is established under the Parliamentary Joint Committee on Law Enforcement Act 2010 (PJCLE Act). Under section 7 of the PJCLE Act, the functions of the PJCLE include:

• monitoring and reviewing the performance of the ACC and the AFP
• examining the annual reports of those agencies
• reporting to Parliament on any matter pertaining to those agencies or connected with the performance of their functions as it sees fit
• inquiring into any question in connection with its functions referred to it by either House of Parliament and reporting to that House on the question and
• examining trends and changes in criminal activities, practices and methods and reporting to both Houses of the Parliament any change it considers desirable to the functions, structure, powers and procedures of the ACC or the AFP.

The PJCLE does not have an explicit legislative oversight function, but it did initiate an inquiry into Commonwealth unexplained wealth legislation and arrangements under the last of the functions listed above in July 2011.[46] As the legislation establishing the PJCLE does not specifically provide for legislative oversight, there is no requirement for any review the PJCLE does undertake to have regard to Australia’s obligations under international agreements or to consider whether the legislation concerned contains appropriate safeguards, and remains proportionate and necessary.

The PJCLE’s functions are limited to matters relating to the ACC and AFP.

Australian Commission for Law Enforcement Integrity (ACLEI)

Under section 15 of the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act), ACLEI’s functions include:

• preventing and detecting corruption in Commonwealth law enforcement agencies
• investigating and reporting on corruption issues
• at the request of the Minister, conducting public inquiries into corruption issues generally or corruption in, or the integrity of staff members of, law enforcement agencies, and
• making reports and recommendations to the Minister (on its own initiative or at the request of the Minister) in relation to any matter concerning ‘the need for or the desirability of legislative or administrative action on issues in relation to corruption generally in, or the integrity of staff members of, law enforcement agencies’.

Under section 10 and the definition of ‘law enforcement agency’ in section 5 of the LEIC Act, ACLEI has jurisdiction over the AFP, ACC, Australian Customs and Border Protection Service, AUSTRAC, CrimTrac, parts of the Department of Agriculture, the former National Crime Authority and any other Commonwealth agency that has a law enforcement function and is prescribed by regulation.

It is not readily apparent how ACLEI’s functions contribute to independent oversight of counter-terrorism or national security legislation.

Parliament

Detailed legislative oversight performed by Parliament is generally undertaken through the committee system. Both Houses of Parliament have powers to establish select committees to inquire into particular matters and to refer matters to existing committees (including joint committees).[47] Standing committees of relevance include the PJCIS, PJCLE and the Senate Standing Committee on Legal and Constitutional Affairs, which has oversight of legislation and agencies in the Attorney-General’s portfolio.

Executive powers

Australian Government ministers may commission ad-hoc reviews of policies or legislation. While as a matter of practice they sometimes are, there is no requirement for the reports on such reviews to be made public.

 

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

 

 

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