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CHAPTER 2
OVERVIEW OF THE BILL
2.1
This chapter sets out
the main provisions of the Bill.
Part 1 – Preliminary
Purpose of the Bill – proposed
section 3
2.2
Proposed section 3
provides that the purpose of the Bill is to appoint an independent person to
ensure ongoing and integrated review of the operation, effectiveness and
implications of laws in Australia relating to terrorism.
Definitions – proposed section 4
2.3
Proposed section 4
sets out the definitions of terms used in the Bill as
follows:
- 'terrorist act' is
given the same meaning as in Part 5.3 of the Criminal Code Act 1995 (Criminal
Code);
- 'terrorism laws'
means any law or part of a law directed to the prevention, detection or
prosecution of a terrorist act.
2.4
The term 'terrorist
act' is defined in Part 5.3 of the Criminal Code as an action or threat of
action where:
- causes serious harm that is physical harm to a person; or
- causes serious damage to property; or
- causes a person's death; or
- endangers a person's life, other than the life of the person taking
the action; or
- creates a serious risk to the health or safety of the public or a
section of the public; or
- seriously interferes with, seriously disrupts, or destroys, an
electronic system, including but not limited to:
- an information system; or
- a telecommunications system; or
- a financial system; or
- a system used for the delivery of essential government services;
or
- a system used for, or by, an essential public utility; or
- a system used for, or by, a transport system; and
- the action is done or
the threat is made with the intention of advancing a political, religious or
ideological cause; and
- the action is done or
the threat is made with the intention of:
- coercing, or influencing by intimidation, the government of the
Commonwealth or a state, territory or foreign country, or of part of a state,
territory or foreign country; or
- intimidating the public or a section of the public.[1]
Part 2 – Independent Reviewer
Appointment of Independent Reviewer
– proposed section 6
2.5
Proposed subsection 6(2)
provides that the Independent Reviewer must be appointed by the
Governor-General.
2.6
Proposed subsection
6(3) states that, before a recommendation is made to the Governor-General for
the appointment of a person as the Independent Reviewer, the Prime Minister
must consult with the Leader of the Opposition in the House of Representatives
about the appointment.
Appointment of Acting Independent
Reviewer – proposed section 7
2.7
Proposed subsection
7(1) provides that the Prime Minister may appoint a person to act as the
Independent Reviewer in the following circumstances:
- during a vacancy in
the office of the Independent Reviewer; or
- during any period, or
during all periods, when the Independent Reviewer is absent from duty or from Australia or is, for any reason, unable to perform the duties of the
office.
2.8
However, a person
appointed to act as the Independent Reviewer during a vacancy must not continue
to act for more than 12 months.
2.9
Proposed subsection
7(2) states that, before appointing a person to act as the Independent
Reviewer, the Prime Minister must consult with the Leader of the Opposition in
the House of Representatives about the appointment.
Functions of Independent Reviewer –
proposed section 8
2.10
Proposed section 8
sets out the functions of the Independent Reviewer.
2.11
The functions of the
Independent Reviewer are – at the request of the responsible Minister, the
Parliamentary Joint Committee on Intelligence and Security, or on the
Independent Reviewer's own motion – to review the operation, effectiveness and
implications of laws relating to terrorist acts.
2.12
Proposed section 8
also provides that the Independent Reviewer is free to determine priorities as
he or she thinks fit.
Conduct of reviews – proposed
section 9
2.13
Proposed subsection
9(1) provides that the Independent Reviewer must inform the responsible
Minister that he or she proposes to conduct a review, prior to the commencement
of that review.
2.14
Proposed subsection
9(2) provides that the Independent Reviewer may obtain information – including
information that is classified as confidential – from such persons as he or she
thinks is necessary for the conduct of a review. The Independent Reviewer may
also make such inquiries as he or she thinks is necessary for the conduct of a
review.
2.15
Pursuant to proposed
subsection 9(3), the Independent Reviewer must, before commencing a review of
legislation, have regard to the functions of:
- the Inspector-General
of Intelligence and Security;
- the Australian
Security Intelligence Organisation;
- the Australian
Federal Police;
- the Human Rights and
Equal Opportunity Commission;[2]
- the Privacy
Commissioner,
in relation to that legislation, and may
consult with all or any of them with respect to the review to ensure a
cooperative and comprehensive approach, and to avoid inquiries being conducted
unnecessarily by more than one of them.
Power to obtain information and
documents – proposed section 10
2.16
Proposed subsection
10(1) provides that, where the Independent Reviewer believes that a person is
capable of producing documents relevant to a review, he or she may, by notice
in writing, require that person – within such period as is specified in the
notice and which must be reasonable – to produce such documents to the
Independent Reviewer.
2.17
Under proposed
subsection 10(2), where documents are produced, the Independent Reviewer may
take possession of, make copies of, or take extracts from such documents and
may retain possession of them for such period as the Independent Reviewer
considers necessary.
2.18
Proposed subsection
10(3) provides that, where the Independent Reviewer requires access to
documents for the purpose of a review, and the documents have national security
classification, the Independent Reviewer must make arrangements with relevant
agencies for protection of the documents while they remain in the Independent
Reviewer's control, and for the secure return of those documents.
2.19
Proposed subsection
10(4) provides that, where the Independent Reviewer takes possession, copies or
extracts of documents, the documents will be held securely by the Independent
Reviewer and will be destroyed within 6 months of the completion of the
inquiry.
2.20
Pursuant to proposed
subsection 10(5), where the Independent Reviewer believes that a person is
capable of providing information relevant to the review being undertaken, the
Independent Reviewer may, by notice in writing, require that person to attend
before the Independent Reviewer to answer questions as relevant.
2.21
Proposed subsection
10(6) provides that a person is not liable to any penalty under the provisions
of any other enactment by reason of his or her giving such information or
producing such documents to the Independent Reviewer.
2.22
Proposed subsection
10(7) provides that, for the purposes of the Privacy Act 1988, the
giving of such information or the production of such documents to the
Independent Reviewer is taken to be authorised by law.
Reports of Independent Reviewer –
proposed section 11
2.23
Under proposed
subsection 11(1), the Independent Reviewer must report to the relevant Minister
upon completion of each review.
2.24
Proposed subsection
11(2) provides that a Minister must, as soon as practicable after receiving a
report by the Independent Reviewer:
- present to each House
of Parliament a copy of the report, subject to the Independent Reviewer's certification
that the report should be so presented, and the deletion of any part, the
publication of which the Independent Reviewer certifies may adversely affect
national security or should not be published on other compelling grounds; and
- present to each House
of Parliament a response to the report, provided that a response to any report
not certified for presentation, or any part the publication of which the
Independent Reviewer has certified should be deleted, is made only to the
Independent Reviewer.
2.25
Proposed subsection
11(3) states that, as soon as practicable after 30 June each year, the
Independent Reviewer must provide to the Minister a report of the Independent
Reviewer's activities during the preceding year. The Minister must, as soon as
practicable after receiving the report, present to each House of the Parliament
a copy of the report – subject to the Independent Reviewer's certification that
the report should be presented, and subject to deletion of any part of the
report which the Independent Reviewer certifies may, if published, adversely
affect national security or should not be published on other compelling
grounds.
2.26
Proposed subsection
11(4) provides that a report of the Independent Reviewer that has been
presented to the Parliament must be considered by the Parliamentary Joint
Committee on Intelligence and Security, and included in its annual report to
the Parliament.
Part 3 – Administrative Provisions
Terms and conditions of appointment
– proposed section 12
2.27
Proposed subsection
12(1) provides that the Independent Reviewer will hold office for such period,
not exceeding five years, as is specified in the instrument of appointment but,
subject to subsection 12(2), is eligible for re-appointment.
2.28
Proposed subsection
12(2) provides that a person is not eligible to be appointed to the office of
Independent Reviewer more than twice.
2.29
Under proposed
subsection 12(3), the Independent Reviewer may be appointed on a full-time or
part-time basis.
Resignation – proposed section 13
2.30
Proposed section 13
states that a person appointed as Independent Reviewer may resign that office in
writing, signed by the Independent Reviewer and delivered to the
Governor-General.
Termination of appointment –
proposed section 14
2.31
Pursuant to proposed
subsection 14(1), the Governor-General may terminate the appointment of the
Independent Reviewer by reason of misbehaviour, or physical or mental
incapacity.
2.32
Proposed subsection
14(2) provides that the Governor-General must terminate the appointment of the
Independent Reviewer, if the Independent Reviewer:
- becomes bankrupt,
applies to take the benefit of any law for the relief of bankrupt or insolvent
debtors, compounds with creditors or makes an assignment of remuneration for
their benefit; or
- is holding office on
a full-time basis and
- engages in paid employment outside the duties of his or her
office, except with the approval of the Prime Minister; or
- is absent from duty, except on leave, for 14 consecutive days or
for 28 days in any period of 12 months; or
- fails, without
reasonable excuse, to comply with proposed section 15.
Disclosure of interests – proposed
section 15
2.33
Under proposed
section 15, the Independent Reviewer must give written notice to the Prime
Minister of all pecuniary or other interests that the Independent Reviewer has
or acquires, and that could conflict with the proper performance of the
Independent Reviewer's functions.
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