Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR REPEAL BILL
2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Parliamentary Secretary to the Prime Minister,
the Hon Josh Frydenberg MP)
INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR REPEAL BILL 2014
OUTLINE
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) and to abolish the
Office of the Independent National Security Legislation Monitor.
The Bill is part of the Government's commitment to reduce bureaucracy and streamline government.
The Government is working to remove, as far as possible, duplication of responsibilities across
Commonwealth agencies and between different levels of Government.
The current Independent National Security Legislation Monitor (the Monitor) will have, before the
expiry of his term on 20 April 2014, conducted a comprehensive review of Australia's national
security legislation. To date, the Monitor has provided three annual reports for the Government's
consideration. A fourth and final report from the Monitor is expected in April 2014 before the expiry
of his term. Together these four reports are expected to cover the extensive list of key issues in
Australian national security laws that the Monitor indicated, in his first annual report, would be
considered and reviewed during his term. The end of the Monitor's term brings to an end this
thorough review.
The experience from the establishment of the Monitor's Office in 2010 has provided a valuable
opportunity to reflect on the optimal form that such oversight should take. With the benefit of this
experience, the Government considers that placing the laws in a constant or continuous state of
wholesale review has not proven to be the optimal form of oversight. 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,
including the Inspector-General of Intelligence and Security, Parliamentary Committees, and the
Parliament itself.
FINANCIAL IMPACT STATEMENT
The Bill will provide savings of $1.36 million over four years.
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation has advised that no regulation impact statement is required
for the measures contained in the Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The 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
As set out in the Outline of this Explanatory Memorandum, the Bill aims to abolish the Office of the
Independent National Security Legislation Monitor as part of the Government's commitment to
streamline government.
Human Rights Implications
The Bill does not engage any of the applicable rights or freedoms. The Monitor's role is not
mandated by the relevant international human rights obligations subject to scrutiny under the
Human Rights (Parliamentary Scrutiny) Act 2011.
The Monitor's role, as identified in section 6 of the Act, includes reviewing and considering, on his or
her own initiative, any counter-terrorism and national security legislation, or be referred matters
relating to counter-terrorism and national security legislation by the Prime Minister, or the
Parliamentary Joint Committee on Intelligence and Security. To date the Monitor has not been
referred any such matters. The Monitor's statutory mandate is to provide advisory
recommendations to the Government, and the existence (or otherwise) of the Monitor's Office does
not create or modify any legal rights, duties or liberties which impact on Australia's compliance with
its international human rights obligations.
The Government remains firmly in support of independent oversight of counter-terrorism and
national security legislation, but considers that placing the laws in a constant or continuous state of
wholesale review has not proven to be the optimal form of oversight. To the extent that compliance
monitoring of the counter-terrorism legislation within the Monitor's statutory remit is considered
good practice, as distinct from an obligation of itself, Australia has a comprehensive range of
standing and ad hoc oversight and accountability measures already in place. These measures
include existing independent oversight bodies such as Parliamentary Committees, and executive
powers to appoint ad hoc reviews. Comprehensive oversight of relevant counter-terrorism and
national security legislation will remain despite this repeal.
Conclusion
The Bill is compatible with human rights as it does not raise any human rights issues.
NOTES ON CLAUSES
Clause 1: Short title
This is a formal clause which provides for the citation of the Bill. This clause provides that when
enacted the Bill may be cited as the Independent National Security Legislation Monitor Repeal Act
2014.
Clause 2: Commencement
This clause provides for the commencement of the Act. It provides that sections 1 to 3 of the Bill will
commence on the day this Act receives the Royal Assent, and Schedule 1 will commence the later of
21 April 2014 and the day after this Act receives the Royal Assent. This is to ensure that the repeal
does not commence until after the expiry of the current Monitor's term on 20 April 2014.
Clause 3: Schedule(s)
This is a formal clause which provides for the effect of Schedule 1.
SCHEDULE 1
Part 1 - Repeal of Act
Item 1: The whole of the Act
This item repeals the whole Act.
Part 2 - Saving and transitional provisions
Part 2 will preserve some requirements in the Act to ensure that the necessary administrative
arrangements and safeguards remain in force after the repeal. These include the continuation of
reporting requirements in relation to the Monitor's final annual report (covering the reporting
period commencing 1 July 2013); the preservation of statutory safeguards which apply to the
Monitor's exercise of powers and performance of statutory functions under the Act to date; and
machinery type provisions to ensure the appropriate management of records held by the Monitor's
office.
Item 2: Saving - protection from criminal and civil liability
This item provides for the continued application of section 26 of the Independent National Security
Legislation Monitor Act 2010 on and after the commencement of this item in relation to a person
who was served with a notice before that commencement.
Item 3: Transfer of records and documents to the Department
This item provides for any records or documents in the possession of the Independent National
Security Legislation Monitor immediately prior to the commencement of this item to be transferred
to the Department of Prime Minister and Cabinet after the commencement of this item.
Item 4: Transitional - reports
This item provides that the annual reporting obligations under section 29 of the Independent
National Security Legislation Monitor Act 2010 continue to apply in relation to the financial year
starting on 1 July 2013 and are taken to have been satisfied in relation to that financial year if
subitems (2) and (3) are satisfied.
Subitem (2) provides that the Monitor's obligation to submit an annual report in relation to the
financial year starting on 1 July 2013 will be satisfied if he provides a report (the final annual report),
together with a declassified version (if relevant), to the Prime Minister after 1 January 2014 and
before the commencement of this item.
Subitem (3) provides that a final annual report be presented to each House of Parliament within 15
sitting days of that House after the day on which it was received.
Item 5: Saving - immunity from legal action
This item provides for the continued application of section 31 of the Independent National Security
Legislation Monitor Act 2010 after the commencement of this item.