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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR (IMPROVED
OVERSIGHT AND RESOURCING) BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of
Senator Penny Wright)
INDEPENDENT NATIONAL SECURITY LEGISLATION
MONITOR (IMPROVED OVERSIGHT AND RESOURCING)
BILL 2014
GENERAL OUTLINE
1. This purpose of the Independent National Security Legislation Monitor (Improved
Oversight and Resourcing) Bill 2014 is to amend the Independent National Security
Legislation Monitor Act 2010 (Cth) (,,the INSLM Act) and the Australian Human Rights
Commission Act 1986 (Cth) to preserve and enhance the role of the Independent National
Security Legislation Monitor (,,the Monitor).
2. The Bill will ensure that the Monitor is empowered to provide independent, expert
advice about the effectiveness and proportionality of proposed changes to Australias
counter-terrorism and national security laws, as well as existing legislation.
3. The Bill also makes changes to reflect the reality of the Monitors role in light of
rapid reform to Australias counter-terrorism and national security laws by ensuring that the
position of Monitor is a full time position, cannot be left vacant and is supported by
appropriate staff.
4. This Bill also enhances the independent character of the Monitor by ensuring that he
or she can receive references from the Senate Committees on Legal and Constitutional
Affairs and by the Australian Human Rights Commission.
5. By preserving and enhancing the role of the Monitor, the Bill aims to give the
Australian community confidence that Australias counter-terrorism and national security
laws are operating effectively and accountably, and in a manner consistent with Australias
international obligations, including human rights obligations.
6. The Bill comprises of 2 Schedules.
7. Schedule 1 of the Bill amends the INSLM Act to:
ensure that the Monitor can review proposed as well as existing national security
legislation;
to make it clear in the objects clause of the Act that the Monitor is required to
consider whether Australias national security legislation is a proportionate response
to the national security threat faced;
enable the Senate Committees on Legal and Constitutional Affairs to refer matters to
the Monitor for inquiry;
enable the Human Rights Commission to refer matters to the Monitor for inquiry;
ensure that the position of Monitor is a full time position, cannot be left vacant and is
supported by appropriate staff; and
1
ensure that all reports of the Monitor are tabled in Parliament and that the
Government is required to respond to the recommendations of the Monitor within six
months of tabling.
8. Schedule 2 of the Bill amends the Australian Human Rights Commission Act 1986
(Cth) to ensure that it is a function of the Australian Human Rights Commission to refer
matters to the Monitor for inquiry.
FINANCIAL IMPACT STATEMENT
9. This Bill would have an impact on the Governments Budget as it proposes changes
that include: the appointment of a full time (rather than part time) Monitor; the establishment
of the Office of the Independent National Security Legislation Monitor as statutory agency
and a listed entity within the meaning of the Public Governance, Performance and
Accountability Act 2013 (Cth); and the provision of appropriate staff to support the Monitors
expanded role.
REGULATORY IMPACT STATEMENT
10. The Bill has no regulatory impact.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Independent National Security Legislation Monitor (Improved Oversight and
Resourcing) Bill 2014
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
GENERAL OUTLINE
11. The Independent National Security Legislation Monitor Act 2010 (,,the INSLM Act)
established the position of the Independent National Security Legislation Monitor (the
,,Monitor). The function of the Monitor is to review the operation, effectiveness and
implications of the counter-terrorism and national security legislation and report his or her
comments, findings and recommendations to the Prime Minster, and in turn Parliament, on an
annual basis. The Monitor must also consider whether Australias counter-terrorism and
national security legislation contains appropriate safeguards for protecting individuals rights,
remains proportionate to any threat of terrorism or threat to national security, or both, and
remains necessary.
12. The main purpose of the INSLM Act is to ensure that Australias counter-terrorism
and national security laws operate in an effective and accountable manner, are consistent with
Australias international obligations, including human rights, counter-terrorism and
international security obligations, and to help to maintain public confidence in those laws.
13. This legislative aim is now at risk of being displaced and undermined.
14. The position of Monitor has been vacant since April 2014, encompassing a period of
prolific legislative reform to Australias counter-terrorism and national security laws. The
findings and recommendations contained in the previous Monitors four comprehensive
reports have also been largely ignored.
15. This Bill aims to preserve and enhance the role of the Monitor by amending the
INSLM Act to:
ensure that the Monitor can review proposed as well as existing national security
legislation;
to make it clear in the objects clause of the Act that the Monitor is required to
consider whether Australias national security legislation is a proportionate response
to the national security threat faced;
enable the Senate Committees on Legal and Constitutional Affairs to refer matters to
the Monitor for inquiry;
3
enable the Human Rights Commissioner to refer matters to the Monitor for inquiry;
ensure that the position of Monitor is a full time position, cannot be left vacant and is
supported by appropriate staff; and
ensure that all reports of the Monitor are tabled in Parliament and that the
Government is required to respond to the recommendations of the Monitor within six
months of tabling.
16. If enacted, this Bill will help ensure that the legislative aim of the INSLM Act is
realised and give the Australian community confidence that Australias counter-terrorism and
national security laws are operating effectively and accountably, and in a manner consistent
with Australias international obligations, including human rights obligations.
Human rights implications
17. This Bill concerns the role of the Monitor as an independent reviewer of Australias
counter-terrorism and national security laws.
18. The Monitor is empowered to provide advisory recommendations to the Government
and to obtain certain information necessary to perform this role, but has no other enforceable
powers.
19. The Monitors role is not directly mandated by the relevant international human rights
obligations subject to scrutiny under the Human Rights (Parliamentary Scrutiny) Act 2011,
nor does the position of Monitor itself create or modify any legal rights, duties or liberties
directly arising from Australias international human rights obligations.
20. As such, the Bill does not directly engage any applicable rights or freedoms.
21. However, the purpose of this Bill - namely to preserve and enhance the role of the
Monitor - is consistent with the protection and promotion of many rights and freedoms
subject to scrutiny under the Human Rights (Parliamentary Scrutiny) Act 2011. The Bill also
aligns with worlds best practice for ensuring consistency between counter-terrorism laws
and human rights.1
22. The Bill introducing the INSLM Act was introduced prior to the requirement for Bills
to be introduced with a Statement of Compatibility with human rights. This Statement of
Compatibility seeks to outline how the position of Monitor - as preserved and enhanced by
this Bill - assists in the protection and promotion of the human rights subject to scrutiny
under the Human Rights (Parliamentary Scrutiny) Act 2011.
1
Human Rights Council, Sixteenth session. Agenda item 3, Report of the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin: Ten areas of best
practices in countering terrorism (22 December 2010) UN Doc /HRC/16/51accessed on 25 November 2014 at
http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A-HRC-16-51.pdf.
4
Effective Review of National Security Laws Assists in Promotion and Protection of Human
Rights
23. Counter-terrorism and national security laws are designed to prevent and prohibit
terrorist acts and other threats to national security that are aimed at the destruction of human
rights, fundamental freedoms and democracy.
24. To this end, many counter-terrorism and national security laws seek to promote and
protect human rights by empowering law enforcement and intelligence agencies to deter,
prevent, and disrupt activities that would endanger the safety or lives of the Australian
community.
25. Measures to combat terrorism may also prejudice the enjoyment of - or may violate -
human rights and the rule of law. The negative impact of counter-terrorism laws on human
rights in Australia can be observed in the report prepared by the Parliamentary Joint
Committee on Human Rights in respect of the Counter-Terrorism Legislation Amendment
(Foreign Fighters) Bill 2014 (the Foreign Fighters Bill).2 The impact of this legislation on
human rights was extensive and deep.
26. The Explanatory Memorandum to the Foreign Fighters Bill notes that the Bill seeks to
introduce substantive changes to the criminal law regime in respect of terrorism offences, and
engages and limits a range of human rights including the:
right to life;
right to equality and non-discrimination;
right to security of the person and freedom from arbitrary detention;
right to freedom of movement;
right to a fair trial and the presumption of innocence;
right to privacy;
right to freedom of expression;
right to freedom of association;
right to the protection of family;
prohibition on torture and cruel, inhuman or degrading treatment;
prohibition on the use of evidence produced as a result of torture;
right to work;
right to social security and an adequate standard of living; and
rights of the child.
27. Counter-terrorism laws can, like other laws, permissibly limit some of the above
3
rights, provided the limitation is in accordance with human rights law. As the Parliamentary
Joint Committee on Human Rights has explained:
2
Parliamentary Joint Committee on Human Rights Examination of legislation in accordance with the Human Rights
(Parliamentary Scrutiny) Act 2011 Bills introduced 30 September - 2 October 2014 Legislative Instruments received 13 - 19
September 2014 Fourteenth Report of the 44th Parliament p. 3
http://www.aph.gov.au/~/media/Committees/Senate/committee/humanrights_ctte/reports/2014/14_44/c01%20Master%20Re
port%20Template.pdf
3
Some human rights are non-derogable or absolute rights and cannot be subject to justifiable limitations. They are: the right
not to be subjected to torture, cruel, inhuman or degrading treatment; the right not to be subjected to slavery; the right not to
be imprisoned for inability to fulfil a contract; the right not to be subject to retrospective criminal laws; and the right to
recognition as a person before the law.
5
International human rights law allows for reasonable limits to be placed on most rights and
freedoms, although some absolute rights cannot be limited. All other rights may be limited as
long as the limitation is reasonable, necessary and proportionate to the achievement of a
legitimate objective. This is the analytical framework the committee applies when exercising
its statutory function of examining bills for compatibility with human rights. 4
28. By preserving and enhancing the role of the Monitor, this Bill will substantially
contribute to this analytical framework. It will do this by ensuring that proposals to reform
Australias counter-terrorism laws can be examined by an independent expert who has the
expertise and access to information necessary to identify any adverse impacts on human
rights and suggest alternative mechanisms for achieving any legitimate legislative ends.
29. The past reports of the Monitor on existing counter-terrorism laws demonstrate the
capacity of the Monitor to identify what aspects of the laws are having a disproportionate
effect on human rights, and to identify practical alternative mechanisms to deter, prevent and
disrupt terrorist activity in Australia.5 For example, in his Second Annual Report, the Monitor
examined the existing control order regime, noting that because control orders "do not require
the established safeguards of a criminal trial according to law and because they may be very
restrictive in their effect on a persons way of life - personally, socially and occupationally -
it is critical that these provisions be scrutinized." 6
30. The Monitor concluded that: "control orders in their present form are not effective,
not appropriate and not necessary."7 The Monitor considered the effectiveness of the regime
at preventing terrorist activity in Australia as well as the impact of the regime on human
rights. The Monitor concluded that the existing regime required substantive reform,
suggesting that "they may be effective, would be appropriate and might be regarded as
necessary in the case of persons already convicted of terrorist offences whose dangerousness
at the expiry of their sentences of imprisonment can be shown." 8
31. These recommendations have been ignored by the Government, which has since
introduced legislation that would significantly expand the scope of the control order regime
and dilute existing procedural safeguards. This legislation was rushed through Parliament
without the opportunity for expert, independent advice to be sought or considered.
32. This Bill would ensure that the Government is required to respond to the Monitors
recommendations within six months. It would also make it an object of the Act and a function
of the Monitor to review proposed changes to counter-terrorism and national security laws.
This would put the parliament and the public in a much better position to evaluate the
effectiveness of the proposed changes to counter-terrorism laws and to understand their
impact on the human rights of all Australians.
4
Parliamentary Joint Committee on Human Rights Examination of legislation in accordance with the Human Rights
(Parliamentary Scrutiny) Act 2011 Bills introduced 30 September - 2 October 2014 Legislative Instruments received 13 - 19
September 2014 Fourteenth Report of the 44th Parliament p. 5 [1.19].
5
Past reports of the Monitor can be viewed at http://www.dpmc.gov.au/INSLM/index.cfm.
6
Independent National Security Legislation Monitor Annual Report (20 December 2012) p. 10.
7
Independent National Security Legislation Monitor Annual Report (20 December 2012) p. 9.
8
Independent National Security Legislation Monitor Annual Report (20 December 2012) p. 9.
6
33. The changes proposed by this Bill would assist, for example, in answering the
following questions posed by the PJCHR in its report on the extension of the control order
regime in the Foreign Fighters Bill:
whether the control orders regime is aimed at achieving a legitimate objective;
whether there is a rational connection between the control orders regime and that
objective; and
whether the control orders regime is a reasonable and proportionate measure for the
achievement of that objective.9
34. The Bill would also enable the Australian Human Rights Commissioner and the
Senate Committees on Legal and Constitutional Affairs to refer matters to the Monitor for
inquiry - enhancing the potential for the Monitor to inquire into and report on those aspects
of Australias counter-terrorism and national security laws that have the most significant
impact on the rights and lives of Australians.
35. The changes proposed by this Bill also align with worlds best practice in countering
terrorism in a manner consistent with human rights. As the former UN Special Rapporteur for
the promotion and protection of human rights and fundamental freedoms while countering
terrorism, Martin Scheinin, has explained, best practice demands regular and independent
review of counter-terrorism laws and their impact on human rights, and that review
mechanisms be based on statutory terms of appointment, linked to the work of relevant
parliamentary committees and accompanied by adequate resourcing. 10 Review mechanisms
should enable public consultation and should be accompanied by publicly available reports. 11
36. Where these features are present, regular independent review of counter-terrorism
laws can ensure that special powers relating to the countering of terrorism are effective and
continue to be required, and to help avoid the "normalization" or de facto permanent
existence of extraordinary measures. 12 Regular review also enables the legislature to
consider whether the exercise of powers under counter-terrorism laws has been proportionate
and thus whether, if they continue, further constraints on the exercise of such powers should
be introduced, and/or whether the overall operation of counter-terrorism laws calls for their
modification or discontinuance. 13
37. This Bill seeks to ensure the Independent National Security Legislation Monitor Act
aligns with worlds best practice by addressing the shortcomings that have contributed to the
current circumstances where the position of Monitor has remained vacant during a period of
prolific legislative reform and where reports of the Monitor have not been met with formal
Government responses.
9
Parliamentary Joint Committee on Human Rights Examination of legislation in accordance with the Human Rights
(Parliamentary Scrutiny) Act 2011 Bills introduced 30 September - 2 October 2014 Legislative Instruments received 13 - 19
September 2014 Fourteenth Report of the 44th Parliament p. 18-19.
10
Human Rights Council, Sixteenth session. Agenda item 3, Report of the Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin: Ten areas of best
practices in countering terrorism (22 December 2010) UN Doc /HRC/16/51accessed on 25 November 2014 at [19].
11
Ibid, at [20].
12
Ibid, at [20].
13
Ibid, at [20].
7
38. By specifically empowering the Monitor to inquire into and report on proposed as
well as existing counter-terrorism laws, the Bill will also assist in addressing a number of the
concerns raised by the Parliamentary Joint Committee on Human Rights relating to the speed
at which counter-terrorism reforms have proceeded through Parliament. For example, the
PJCHR has observed that:
"[t]he apparent urgency with which the national security legislation is being passed through
the Parliament is inimical to legislative scrutiny processes, through which the committee's
assessments and dialogue with legislation proponents is intended to inform the deliberations
of senators and members of the Parliament in relation to specific legislative proposals. The
committee is concerned that the capacity of legislative scrutiny to contribute to achieving the
fine balance between the preservation of traditional human rights and freedoms and the
maintenance of national security is limited where the passage of such legislation is
expedited."14
39. This Bill will ensure that the Parliament has the opportunity to access expert,
independent advice regarding the impact of proposed counter-terrorism reforms on human
rights prior to the passage of legislation through Parliament.
Conclusion
40. This Bill is compatible with human rights.
Senator Penny Wright
14
Parliamentary Joint Committee on Human Rights Examination of legislation in accordance with the Human Rights
(Parliamentary Scrutiny) Act 2011 Bills introduced 30 September - 2 October 2014 Legislative Instruments received13 - 19
September 2014 Fourteenth Report of the 44th Parliament p. 5-6.
8
NOTES ON CLAUSES
PRELIMINARY
Clause 1--Short title
41. This clause provides that when the Independent National Security Legislation Monitor
(Improved Oversight and Resourcing) Bill 2014 is enacted, it is to be cited as the Independent
National Security Legislation Monitor (Improved Oversight and Resourcing) Act 2014.
Clause 2--Commencement
42. This clause provides that the provisions of the Independent National Security
Legislation Monitor (Improved Oversight and Resourcing) Act 2014 are to commence on the
day this Act receives the Royal Assent.
Clause 3--Schedules
43. Clause 3 provides that each Act specified in a Schedule to the Bill is amended as set
out in the applicable items in the Schedule and any other item in a Schedule has effect
according to its terms. This is a technical provision to give operational effect to the
amendments contained in the Schedules.
SCHEDULE 1-- Amendments to the Independent National Security
Legislation Monitor Act 2010
GENERAL OUTLINE
44. Schedule 1 of the Bill amends the INSLM Act to:
ensure that the Monitor can review proposed as well as existing national security
legislation;
make it clear in the objects clause of the Act that the Monitor is required to consider
whether Australias national security legislation is a proportionate response to the
national security threat faced;
enable the Senate Committees on Legal and Constitutional Affairs to refer matters to
the Monitor for inquiry;
enable the Human Rights Commission to refer matters to the Monitor for inquiry;
ensure that the position of Monitor is a full time position, cannot be left vacant for
more than three months and is supported by appropriate staff; and
ensure that all reports of the Monitor are tabled in Parliament and that the
Government is required to respond to the recommendations of the Monitor within six
months of tabling.
9
Independent National Security Legislation Monitor Act 2010 (Cth)
Amendments to the Objects of the Independent National Security Legislation Monitor Act
2010 (Cth)
Item 1: Section 3
45. This Item will insert "and proposed counter-terrorism and national security
legislation" into subsection section 3(1) of the INSLM Act to make it clear that one of the
objects of the Act is to ensure that Australias counter-terrorism and national security
legislation and proposed counter-terrorism and national security legislation:
is or would be effective in deterring and preventing terrorism and terrorism-related
activity which threatens Australias security; and
is or would be effective in responding to terrorism and terrorism-related activity; and
is or would be consistent with Australias international obligations, including: human
rights obligations; counter-terrorism obligations; and international security
obligations; and
contains appropriate safeguards for protecting the rights of individuals.
46. This amendment is necessary to ensure that the Monitor is able to provide the
Parliament and the public with an expert, independent assessment of any proposed additions
or changes to counter-terrorism or national security laws before they are enacted into
legislation.
47. Currently, the Monitor is only empowered to review and report on existing counter-
terrorism or national security laws.
48. This gap in the existing legislative framework, coupled with the fact that the position
of Monitor has been left vacant since 20 April 2014, has meant that Australia has been
without a Monitor during a time of the prolific legislative reform in this area including the
introduction of the National Security Legislation Amendment Act (No. 1) 2014, Counter
Terrorism Legislation (Foreign Fighters) Amendment Act 2014 and the Telecommunication
Legislation (Data Retention) Amendment Bill 2014. Each of these Acts and Bills have, or
will have, profound impacts on human rights and were strongly criticised by legal and other
experts as being disproportionate to the national security risks faced by Australia and without
appropriate safeguards for protecting the rights of individuals.
49. The amendments proposed in Items 1-4 and 6-8 of this Bill would make it clear that is
both an object of the INSLM Act and a function of the Monitor to inquire into proposed as
well as existing counter-terrorism or national security laws.
Item 2: Paragraphs 3(a) and (b)
50. This Item would insert "or would be," into paragraphs 3(a) and (b) of the Act, to make
it clear that it is one of the objects of the Act for the Monitor to explore the likely effect of
10
proposed legislation when considering whether Australias counter-terrorism and national
security legislation and proposed counter-terrorism and national security legislation is
effective in deterring and preventing terrorism and terrorism-related activity which threatens
Australias security and responding to terrorism and terrorism-related activity.
Item 3: After paragraph 3(b)
51. This Item would insert a new paragraph (ba) into section 3 of the Act that would
provide that it is part of the objects of the Act to ensure that Australias counter-terrorism and
national security legislation and proposed counter-terrorism and national security legislation
"is, or would be, proportionate to any threats of terrorism and threats to national security".
52. Subparagraph 6(1)(b) (ii) of the Act currently provides that the Monitor can, by his or
her own initiative, inquire into whether any national security legislation "remains
proportionate to any threat of terrorism or threat to national security, or both".
53. However, unlike other functions listed in section 6, this function is not currently
reflected in the objects clause of the Act.
54. This Item would amend the objects of the Act to make it clear that assessing whether
Australias existing and proposed counter-terrorism and national laws are proportionate to
any threats of terrorism and threats to national security is not only a function of the Monitor,
but an object of the Act.
55. Ensuring that such laws are proportionate is critical to an assessment of whether
Australia is complying with its international human rights obligations, and also requires the
Monitor to consider whether there are any other less rights-restrictive means for achieving the
same legislative ends sought by the particular law. This process can lead to sound
recommendations for how the proposed or existing laws could be improved or amended. It
has been a feature of the previous Monitors reports and referred to on a number of occasions
by parliamentary committees, including the Parliamentary Joint Committee on Human
Rights.
Item 4: Paragraph 3(c)
56. This Item would insert "or would be," into paragraph 3(c) of the Act, to make it clear
that it is one of the objects of the Act for the Monitor to explore the likely effect of proposed
legislation when considering whether Australias counter-terrorism and national security
legislation and proposed counter-terrorism and national security legislation is or would be
consistent with Australias international obligations, including: human rights obligations;
counter-terrorism obligations; and international security obligations.
Amendments to definitions
Item 5: Section 4
57. Item 5 makes changes to the definitions applying in the Act.
11
58. It provides that a reference to "Committee on Legal and Constitutional Affairs" means
either the Legal and Constitutional Affairs Legislation Committee or the Legal and
Constitutional Affairs References Committee.
59. It also provides that "proposed Commonwealth legislation" means a Bill for an Act
that has been introduced into either House of the Parliament, and includes an exposure draft
of a Bill for an Act.
60. It also provides that "proposed counter-terrorism and national security legislation"
means proposed Commonwealth legislation that amends, repeals or otherwise relates to
counter-terrorism and national security legislation; and proposed Commonwealth legislation
that would, if enacted, be of a similar character to counter-terrorism and national security
legislation.
61. These definitions are required to give effect to the other Items in this Schedule that
empower the Monitor to review proposed as well as existing national security legislation and
enable the Committees on Legal and Constitutional Affairs to refer matters to the Monitor for
inquiry.
Establishment of the Office of the Independent National Security Legislation Monitor as a
listed entity
Item 6: New section 5A
62. This Item introduces a new section 5A to the Act to make it clear that the Office of
the Independent National Security Legislation Monitor is a listed entity (within the meaning
of the Public Governance, Performance and Accountability Act 2013) for the purposes of the
finance law.
63. The purpose of this amendment is to bring the Office of the Independent National
Security Legislation Monitor into line with similar statutory oversight bodies such as the
Inspector General of Intelligence and Security.
64. This amendment is modelled on section 6AA of the Inspector General of Intelligence
and Security Act 1986 (Cth), introduced in 2014 by the Public Governance, Performance and
Accountability (Consequential and Transitional Provisions) Act 2014 (the PGPA Act).
65. The PGPA Act consolidates under one law the governance, performance and
accountability framework for the Commonwealth and relevant entities.
Function of Monitor to Review Proposed Laws
Items 7, 8 and 9: Subsection 6(1)
66. Section 6 of the Act sets out the functions of the Monitor. Subsection 6(1) provides
that it is the function of the Monitor to review, on his or her own initiative, the operation,
effectiveness and implications of Australias counter-terrorism and national security
legislation; and any other law of the Commonwealth to the extent that it relates to Australias
counter-terrorism and national security legislation and consider on his or her own initiative,
whether any of these laws:
12
contain appropriate safeguards for protecting the rights of individuals; and
remain proportionate to any threat of terrorism or threat to national security, or both;
and
remain necessary.
67. Subsection 6(1) also provides that it is a function of the Monitor to report on a matter
relating to counter-terrorism or national security that is referred to the Monitor by the Prime
Minister and to assess whether Australias counter-terrorism or national security legislation is
being used for matters unrelated to terrorism and national security.
68. Items 7, 8 and 9 of the Bill amend subsection 6(1) of the Act to make it clear that it is
part of the functions of the Monitor to review, on his or her own initiative, the operation,
effectiveness and implications of proposed counter-terrorism and national security legislation
as well as existing laws.
69. Item 7 inserts "proposed counter-terrorism and national security legislation" into
subparagraph 6(1)(a)(i).
70. Item 8 inserts "proposed legislation" into paragraph 6(1)(b).
71. Item 9 inserts "or would be" into subparagraphs 6(1)(b)(ii) and (iii).
72. As noted above, these amendments are necessary to ensure that the Monitor is able to
provide the Parliament and the public with an expert, independent assessment of any
proposed new counter-terrorism or national security laws before they are enacted into
legislation.
Referrals to the Monitor by the Australian Human Rights Commission
Item 10: At the end of subsection 6(1)
73. This Item amends section 6 of the Act to make it clear that it is a function of the
Monitor to report on a matter relating to Australias counter-terrorism and national security
legislation that has been referred to the Monitor by the Australian Human Rights
Commission.
74. This amendment is necessary to facilitate an efficient and effective dialogue between
Australias independent expert authority on human rights, the Australian Human Rights
Commission, and the person appointed to review Australias counter-terrorism and national
security laws for, among other things, compliance with Australias international human rights
obligations.
75. One of the existing objects of the Act is to ensure that Australias counter-terrorism
and national security legislation is ,,consistent with Australias international obligations
including human rights obligations and ,,contains appropriate safeguards for protecting the
rights of the individuals.
13
76. The Australian Human Rights Commission is uniquely placed to identify whether and
to what extent these laws are engaging with or infringing upon human rights, and therefore
would serve as an efficient and independent source of referrals to the Monitor.
77. For example, through its work with Arab and Muslim Australians, the Australian
Human Rights Commission is familiar with concerns that counter-terrorism legislation can
have a disproportionate impact on the rights of members of particular communities. This
information could form the basis of a referral to the Monitor, who in turn, possesses unique
information gathering powers that allow him or her to speak with the agencies responsible for
implementing these laws and to comprehensively review the practical impact of counter-
terrorism laws on individual rights.
78. By providing the Commission with the power to refer matters to the Monitor, this Bill
will ensure that the Parliament and the public have the best available information on which to
assess Australias proposed and existing counter-terrorism laws.
79. Schedule 2 of the Bill makes the necessary amendments to the Australian Human
Rights Commission Act 1986 (Cth) to ensure that it is a function of the Commission to make a
referral to the Monitor under this provision.
80. It is noted that neither this Item, nor the amendments proposed in Schedule 2, are
intended to preclude the Commission from inquiring into matters relating to Australias
counter-terrorism and national security legislation in accordance with its other functions as
outlined in section 11 of the Australian Human Rights Commission Act 1986 (Cth).
Referrals to the Monitor by a Committee on Legal and Constitutional Affairs
Item 11: Subsection 6(1A)
81. This Item amends section 6(1A) of the Act, which currently refers to references to the
Monitor made by the Parliamentary Joint Committee on Intelligence and Security, by adding
"or a Committee on Legal and Constitutional Affairs".
Item 12: New section 7B
82. This Item inserts a new section 7B into the Act which sets out how references are to
be made to the Monitor by one of the two Committees on Legal and Constitutional Affairs.
This new section provides that a Committee on Legal and Constitutional Affairs may refer to
the Monitor a matter that the Committee becomes aware of in the course of performing its
functions; and considers should be referred to the Monitor.
83. Item 12 also makes it clear that it is a function of the Committee on Legal and
Constitutional Affairs to refer the matter to the Independent National Security Legislation
Monitor.
84. Currently, only the Prime Minister and the Parliamentary Joint Committee on
Intelligence and Security can refer matters to the Monitor for review and report. This limits
14
the independent character of the Monitor, and can leave the Parliament without access to
independent, expert advice on proposed and existing counter-terrorism and national security
laws.
85. This amendment will ensure that the two Committees on Legal and Constitutional
Affairs - who are regularly involved in scrutinising proposed and existing counter-terrorism
laws - are empowered to refer relevant matters to the Monitor for review and reform.
86. In the last year, for example, these Committees considered at least six separate Bills
that sought to reform or add to Australias counter-terrorism and national security legislation.
The vast majority of these Bills were considered while the position of Monitor remained
vacant and without the benefit of a formal Government response to the past recommendations
made by the Monitor.
87. This amendment will enable these Committees - that comprise of membership from a
more representative cross section of the Parliament - with the opportunity to refer matters to
the Monitor for review and inquiry.
Item 13: Subsection 10(2)
88. Item 13 amends section 10 of the Act which sets out the matters to which the Monitor
must have regard when performing his or her functions, and the bodies and agencies with
which the Monitor may consult, which include the Ombudsman, the Human Rights
Commissioner and the Inspector General of Intelligence and Security.
89. This Item amends section 10 to make it clear that this provision also applies to the
Monitors consideration of proposed counter-terrorism and national security legislation.
Appointment of Monitor and Staff
Item 14: Subsection 11(1)
90. This Item amends subsection 11(1) of the Act to provide that a Monitor must be
appointed on a full time basis.
91. Currently, subsection 11(1) provides that the Monitor is appointed on a part-time
basis.
92. The former Monitor, Mr Bret Walker SC, performed the role of Monitor on a part
time basis from 21 April 2011 to 20 April 2014 and produced four high quality and
detailed reports.
93. However, it has since become apparent that the prolific pace of legislative reform to
counter-terrorism and national security laws demands a full-time Monitor with adequate
support staff.
94. For example, the scope of the Monitors functions have recently been significantly
expanded by the Counter Terrorism Legislation (Foreign Fighters) Amendment Act 2014
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which amended the Act by introducing a new subsection 6(1A) that requires the Monitor to
review the sun-setting counter-terrorism provisions in the ASIO Act, the Criminal Code and
the Crimes Act (such as the control order and preventative detention order regimes, ASIOs
questioning and detention powers and the new ,,designated area offences) by 7 September
2017.
95. Further recommendations for matters to be referred to the Monitor have also been
made by the Parliamentary Joint Committee on Intelligence and Security in its report on the
Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 (Cth).
96. The changes proposed in this Bill, including expanding the function of the Monitor to
review proposed counter-terrorism and national security laws and respond to references from
the Committees on Legal and Constitutional Affairs and the Australian Human Rights
Commission, will also increase the work load of the Monitor and require that the position be
appointed on a full time basis.
Item 15: After subsection 11(2)
97. This Item amends subsection 11(2) of the Act. This subsection currently provides that
before a recommendation is made to the Governor-General for the appointment of a person as
the Monitor, the Prime Minister must consult with the Leader of the Opposition in the House
of Representatives.
98. This Item adds a new subsection (2A) which requires such a recommendation be
made to the Governor-General before the end of three calendar months after the office has
become vacant.
99. This Item will apply regardless of whether a person has been appointed to the position
of Acting Monitor pursuant to section 20 of the Act.
100. As noted above, Mr Bret Walker SC held the position of Monitor from 21 April 2011
to 20 April 2014. Since then, no Monitor has been appointed. The Government has also
unsuccessfully attempted to remove the position of Monitor permanently by seeking to repeal
the Act in March 2014 as part of its ,,reduction of red tape budgetary measures.15
101. As many legal and other experts have submitted to parliamentary committees,16 it is
deeply regrettable that the office of Monitor should remain vacant at a time of the most
significant legislative reform in this area for almost a decade.
102. This Item aims to prevent this scenario arising in the future by requiring the Prime
Minister to take the appropriate steps towards appointing a permanent Monitor within three
months of the position becoming vacant. This time frame provides adequate scope for
15
Independent National Security Legislation Monitor Repeal Bill 2014
16
See for example submissions by the following organisations to the Parliamentary Joint Committee on Intelligence and
Security inquiry into the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014: Law Council of Australia,
the Castan Centre for Human Rights, Gilbert + Tobin Centre for Public Law, the Human Rights Law Centre and the
Australian Human Rights Commission.
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expressions of interest to be sought and considered, while ensuring that the position is not left
vacant for a prolonged period of time.
Item 16: Application
103. This Item relates to the application of the new provision proposed by Item 15. It
provides that if the office of Monitor is vacant at the time this Schedule commences, the
amendment proposed by Item 15 applies in relation to the vacancy as if the reference in that
subsection to three calendar months after the office became vacant were a reference to one
calendar month after the day this Schedule commences.
104. This means that, at the time of commencement of this Bill, the Prime Minister would
have one month to make a recommendation to the Governor General for the appointment of a
person as the Monitor in accordance with subsection 11(2) of the INSLM Act.
105. This time frame is considered appropriate having regard to the urgent need to fill the
position on Monitor and in light of the fact that the position has been vacant since 21 April
2014.
Item 17: New Division 3 to Part 2
106. This Item would add a new Division 3 to Part 2 of the Act. The new Division 3 would
outline the legal framework governing the appointment of staff to assist the Monitor.
107. Proposed subsection 20A(1) would provide that the staff of the Monitor are to be
persons engaged under the Public Service Act 1999; and any person employed under
proposed new subsection 20A(3) of the Act.
108. Proposed subsection 20A(2) would make it clear that the Monitor and the staff of the
Monitor together constitute a Statutory Agency; and that the Monitor is the Head of that
Statutory Agency.
109. Proposed new subsection 20A(3) would empower the Monitor to employ a person, by
written agreement, to assist the Monitor to perform functions and exercise powers under
Division 1 for the purposes of a particular inquiry. Such a person could only be employed if
necessary and if he or she has appropriate expertise. Such a person must also be cleared for
security purposes to at least the same level, and at the same frequency, as staff members of
the Australian Security and Intelligence Services unless otherwise agreed by the Minister.
110. Proposed new subsection 20B would enable the Monitor, by written agreement, to
delegate all or any of his or her functions or powers to a person employed pursuant to
proposed new subsection 20A(3).
111. This proposed new Division is necessary to support the expanded and full time role of
the Monitor, and in recognition of the changes to the Monitors functions as described above.
These changes also enable the Monitor to appoint an expert to assist with a particular inquiry.
Similar powers are currently available to the Inspector General of Intelligence and Security
pursuant to sections 32 and 32AA of the Inspector General of Intelligence and Security Act
1986 (Cth).
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112. These changes are necessary as without adequate staffing and access to subject-
specific experts, there is a risk that the Monitor will not continue to be able to produce high
quality, evidence based expert reports and recommendations or to respond to the pace to
legislative change in this area.
113. It is expected that the money for the Monitor to employ the staff under these new
arrangements will be provided for in annual appropriations.
Responding to Reports of the Monitor
Item 18: Paragraph 29(1)(a)
114. This Item omits "and (b)" and substitutes ", (b) and (e)" in paragraph 29(1)(a) of the
Act. This will require the Monitors annual reports under section 29 to relate to matters
referred to the Monitor by the Australian Human Rights Commission.
Item 19: New subsection 29(6)
115. This Item amends section 29 of the Act which relates to the preparation of the
Monitors Annual Report on the performance of his or her functions.
116. This Item adds a new subsection 29(6) which would require the Prime Minister,
within 6 months of the Annual Report being presented to a House of the Parliament, to make
a statement to the Parliament setting out the action that the Government intends to take in
relation to the report.
117. This amendment is necessary to ensure that the Government provides a timely and
public response to any findings or recommendations made by the Monitor in his or her
Annual Reports, which could include recommendations for certain counter-terrorism or
national security laws to be amended or agency practices to be changed or reviewed.
118. Currently, there is no requirement for the Government to respond to the Annual
Reports of the Monitor. As a result, is it difficult for the Parliament and the community to
evaluate whether and to what extent the Government has considered and/or acted upon the
Monitors findings or recommendations.
Item 20: New subsection 30(7)
119. This Item amends section 30 of the Act which relates to the preparation of the
Monitors reports to the Prime Minister following a referral by the Prime Minister under
section 7 of the Act.
120. This Item adds a new subsection 30(7) which would require the Prime Minister,
within 6 months of the Annual Report being presented to a House of the Parliament, to make
a statement to the Parliament setting out the action that the Government intends to take in
relation to the report.
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121. As noted above with respect to Item 19, this amendment is necessary to ensure that
the Prime Minister provides a timely and public response to any findings or recommendations
made by the Monitor in his or her reports following references by the Prime Minister.
Item 21: New Section 30A
122. Item 21 of the Bill would insert a new section 30A into Part 4 of the Act which
currently outlines how and when the Monitor issues reports on the exercise of his or her
functions.
123. Proposed new section 30A sets out how the Monitor is to report on a reference by the
Committee on Intelligence and Security or a Committee on Legal and Constitutional Affairs.
It provides that if such a reference has been made, the Monitor must report to the Chair of the
committee on the reference.
124. Pursuant to proposed new subsections 30A(2) and (3), the committee Chair may,
before the Monitor gives his or her report on a reference, direct the Monitor to give an interim
report to the committee Chair on the Monitors work on the reference, and the Monitor can
provide an interim report.
125. Proposed subsection 30A(4) provides that if the Monitor considers that a report to the
committee Chair contains certain sensitive information of the kind referred to in
subsection 29(3) of the Act the Monitor must also prepare and give to the committee Chair, a
declassified committee report.
126. Proposed subsection 30A(5) provides that when determining whether a report
contains information of the kind referred to in subsection 29(3), the Monitor may consult the
responsible Minister or responsible Ministers concerned.
127. Pursuant to proposed section 30A(6), once the Monitors report has been received, the
committee Chair must present the 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.
128. Proposed subsection 30A(7) will require the Prime Minister to make a statement to
the Parliament setting out the action that the Government proposes to take in relation to the
report prepared by the Monitor in response to a reference Committee on Intelligence and
Security or a Committee on Legal and Constitutional Affairs within six months after the
report is presented to Parliament.
129. Proposed new section 30A is modelled on the procedure for preparing and issuing
reports following a reference by the Prime Minister contained in section 30 of the Act.
130. These proposed changes to the reporting requirements for the Monitor are critical to
ensuring references received by the Monitor from the Committee on Intelligence and Security
or a Committee on Legal and Constitutional Affairs that form the subject of reports are
presented in Parliament and made available to the public. The changes will also ensure that
the Prime Minister provides a timely and public response to any findings or recommendations
made by the Monitor in his or her reports following references by one of these Committees.
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131. In line with the existing provisions relating to reports prepared following a reference
from the Prime Minister, these changes incorporate processes for dealing with sensitive
information and presenting declassified reports.
Item 22: Section 31
132. This item inserts "(1)" before the commencement of this section. It is a consequential
amendment to Item 21.
Item 23: New subsection 31(2)
133. This Item adds a new subsection to section 31 of the Act. Section 31 currently
provides the Monitor with immunity from legal action in relation to anything done, or
omitted to be done, in good faith by the Monitor in the performance, or purported
performance, of his or her functions; or in the exercise, or purported exercise, or his or her
powers.
134. This Item extends this same immunity to the Monitors staff. Proposed new
subsection 31(2) provides that no action, suit or proceeding may be brought against a person
who is, or has been, a member of the staff of the Monitor in relation to anything done, or
omitted to be done, in good faith by the person in the performance of his or her duties as a
member of the staff of the Monitor.
135. A similar provision applies with respect to the staff of the Inspector General of
Intelligence and Security.
SCHEDULE 2-- OTHER AMENDMENTS
Australian Human Rights Commission Act 1986 (Cth)
136. Schedule 2 of the Bill makes the necessary amendments to the Australian Human
Rights Commission Act 1986 (Cth) to ensure that it is a function of the Commission to make a
referral of a matter to the Monitor for report and inquiry.
Item 24: New subsections 11(5) and (6)
137. This Item would amend section 11 of the Act, which currently sets out the statutory
functions of the Commission.
138. It would insert a new subsection 11(5) which would make it a function of the
Commission to refer a matter to the Monitor for inquiry, if the Commission is of the opinion
that, having regard to the functions and powers of the Monitor and the object of the INSLM
Act, it would be appropriate for the Commission to refer a matter relating to Australias
proposed or existing counter-terrorism and national security legislation to the Monitor.
139. Proposed new subsection 11(6) would make it clear that the new subsection 11(5)
does not prevent the Commission from inquiring into matters relating to Australias
counter-terrorism and national security legislation in accordance with its other functions as
outlined in section 11 of the Australian Human Rights Commission Act 1986 (Cth).
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140. These proposed amendments are necessary to give effect to the relevant changes
proposed in Schedule 1 that seek to enable the Commission to refer a matter to the Monitor
for inquiry and report, and that empower the Monitor to respond to such a reference.
141. They are consistent with subsection 11(3) of the Australian Human Rights
Commission Act 1986 (Cth) which permits the Commission to refer matters to the Inspector
General of Intelligence and Security.
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