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Finance and Public Administration Legislation Committee
21/05/2018
Estimates
PRIME MINISTER AND CABINET PORTFOLIO
Independent National Security Legislation Monitor

Independent National Security Legislation Monitor

CHAIR: The committee will now continue. For anyone watching at home, there's been a slight change in the order of programming. We're about to have the Independent National Security Legislation Monitor and then we'll go back to the Digital Transformation Agency. I welcome Dr Renwick, the Independent National Security Legislation Monitor. I believe we have Ms Kylie Bryant, the first assistant secretary, who will be joining us from the National Security Division of the Department of the Prime Minister and Cabinet. Dr Renwick, I believe you have an opening statement, so please begin.

Dr Renwick : It's a very brief one—and thank you for the accommodation, Mr Chair.

CHAIR: No worries.

Dr Renwick : I last appeared before this committee in October. I wasn't required in February. In the 16 months since I've been INSLM I've produced three substantive reports and an annual report. They concern: stop, search and seizure powers; declared areas; and, finally, control orders and preventative detention orders and how they interact with high-risk terrorist offender situations. The PJCIS has considered my reports and in the main agreed with them. The last report, in relation to high-risk terrorist offenders, is of particular importance, as there are at least 20 terrorist offenders who will become eligible to have an order made against them as their prison sentence comes to an end. There's been a significant increase in terrorist prosecutions. More than half of all terrorism-related charges since 2001 have been laid since 2014, and there are presently 40 people before the courts for terrorism offences. The increase is marked. Recently, the PJCIS also completed consideration of my predecessor Mr Giles' report on ASIO's questioning and detention powers and has adopted a central recommendation, namely that ASIO questioning and detention warrants, which haven't ever been used, should be abolished.

My current work is on a reference from the Prime Minister concerning the trial and punishment of children for terrorism—that is, people from 10 to 17 years of age. Significant sentences have been imposed on children. Regrettably, this is an area of growth. Until recently there were no such cases; now there have been four children convicted and three remain before the courts. I note last week there were multiple attacks in Indonesia in which children were used as suicide bombers. I note the PJCIS in 2016 said the involvement of children:

… represents a significant change in the national security landscape.

There are large and important questions involved. Let me mention just four: (1) the special human rights of children, for example the Convention on the Rights of the Child; (2) the high cost to society if children can't be diverted from the path of radicalisation; (3) whether laws appropriate for adults are appropriate for children, so, for example, should the requirement that serious terrorism offenders serve three-quarters of their sentence before being eligible for parole apply equally to children, as it currently does; and (4) what should be done in our federal structure? Should there be a federally imposed uniformity, or should we continue to take state and territory courts as we find them with their sometimes significant differences in powers, procedures and approaches?

That last topic arises acutely because trial and punishment, including incarceration of children, is undertaken in state and territory courts and prisons or places of detention. So unlike my previous inquiries—for example, last year where I was mainly dealing with federal agencies—I've got to deal a lot this time with state and territory agencies, courts and ministers. I'll also be consulting with comparable institutions in the United Kingdom, as previously, and in New Zealand. That report is due by the end of November.

Finally, as this committee takes an interest in my resources, and may I say that interest is most welcome, let me say something about the machinery-of-government changes. As this committee was advised by the department—and by that I mean Prime Minister and Cabinet—last year, my annual budget is $841,000 and is projected to remain such until the end of my term in about two years' time. The budget covers staffing costs, salaried employees and contractors—counsel and solicitors assisting in that category—travel, accommodation and some incidentals. I have an entitlement to four staff, currently three ASL and one contractor; I have a principal adviser, Mr Mooney, an office manager and I will shortly get a deputy advisor. But as I have mentioned to you previously, we will otherwise use counsel and solicitors assisting for each inquiry, and that's a cost-effective way of engaging highly qualified people with specialist skills to assist in particular reviews in accordance with normal Commonwealth procurement practices. PM&C has never charged me or my office rent for office space or back office support on IT, payroll, security and the like, and that's appropriate as I'm not a separate statutory authority.

As you know, I think last week the Administrative Arrangements Order, consequent upon the enactment of the Home Affairs and Integrity Agencies Legislation Amendment Act, has now transferred my office from Prime Minister and Cabinet to Attorney-General's. My view on those changes is that, provided there is no diminution of my independence or resources, such changes are matters for the parliament and government of the day. I assume the resourcing arrangements I've just described will continue after the transfer. I will advise this committee and the PJCIS if there is any change diminishing my resources or independence, but I don't expect anything of the sort to occur. For those reasons I have no view about the transfer, except to record the excellent support given to me and my office, since its inception, by PM&C. May I particularly thank Dr Parkinson, Ms Foster, Mr McKinnon and Ms Bryant, and to note the warm welcome I've received from Mr Moraitis and other officials. At some point I'll move physically as well as administratively to within the Attorney-General's portfolio, with that move to occur when my standalone premises are constructed within 3-5 National Circuit. I'm now happy to answer any of your questions.

Senator PATRICK: I hope the Attorney doesn't charge you rent either.

Dr Renwick : I don't expect him to.

Senator PATRICK: I was going to ask some questions about your current review, but you've answered them in your opening statement. In your last annual report you foreshadowed an intention to adopt a more flexible work plan, subject to the references of both the Prime Minister and PJCIS, and I guess now the Attorney-General. Basically, you were going to move to own-motion reviews. I'm wondering what your plan is moving forward as you undertake your work in the coming year out to 30 June 2020, when your current term expires. Could you give us some thoughts on what you're intending to do.

Dr Renwick : You're quite right to say I can get references from three sources and own motion. To be perfectly honest, I did say that in my report, I'm very much focused on this children's report. It's more detailed and intensive than I expected it to be, because not only do I have to master the federal law involved but also the law of the eight states and independent territories. The real answer to your question is: I'm not sure. I would have to report to the Prime Minister by 1 December, or the day before, as that's a Saturday. I certainly am consulting widely. Indeed, I consulted widely before I requested the current reference. I can request a reference from the Prime Minister or the Attorney. I requested this reference about children. I intend to think further. May I say, as I said, I think, to Senator Xenophon when I first started here, I welcome suggestions from anyone, including from honourable senators, about possible matters for reference.

Senator PATRICK: Maybe I'll throw a couple at you then.

Dr Renwick : Certainly.

Senator McALLISTER: It would be useful to know if you are planning any own-motion inquiries at all, before we leave.

Dr Renwick : Yes, sorry. The answer is not at the minute. I don't have a particular own-motion inquiry in mind. I really am awfully focused on this current inquiry, but I do consult widely—the Law Council of Australia and so on.

Senator PATRICK: Thank you, that was actually quite helpful, Senator McAllister. I'm just wondering whether or not, as you're moving forward, you'd give priority to questions of privacy in regard to investigative powers exercised by intelligence and national security agencies?

Dr Renwick : I'm not the IGIS, so I don't look at individual complaints that, for example, ASIO or another intelligence agency might have broken the law. What I do is look backwards and monitor how an act works.

Senator PATRICK: I am actually referring to, in the context of the powers provided by the parliament, to the extent that they intrude upon privacy, whether or not you would consider looking at the balance. You haven't really thought about it, so maybe I'll just put that as a thought in your mind.

Dr Renwick : Yes. I'd simply note at this stage that I am required by section 8 of my act at all times to consider human rights obligations, and that would be one of them.

Senator PATRICK: Given the fact that the powers exercised under the Australian telecommunications interception and access legislation potentially affect all Australians in terms of not only actual invasions of privacy but people's perception of privacy when they're using communications or electronic systems, would you rate that as something that you'd look at over the next couple of years?

Dr Renwick : The answer to your question is: that's not within my own-motion powers. In section 4 there's a list of counterterrorism and national security legislation, and that's not it. The Prime Minister can give me anything in relation to national security and counterterrorism, so I'd need to get a reference from him to look at the TI act. The TI act is a very important piece of legislation, and Mr L'Estrange, for example, did make some remarks about it, but the answer is: I can't look at it on my own motion.

Senator PATRICK: That's helpful in clarifying that. Thank you, Chair.

Senator McALLISTER: There was an announcement in the budget for the Attorney-General's Department to undertake a review of the legislative framework of all national security legislation. Have you been consulted about that review?

Dr Renwick : Yes, I have been. I think I can say this: I have met with the Prime Minister and discussed future possible references. Precisely what I've discussed with him is cabinet in confidence, so I don't think I can take that any further. What I can say—I don't think this is a secret—is the Law Council of Australia have proposed that I do that piece of work.

Senator McALLISTER: Is it your expectation that you will do that piece of work?

Dr Renwick : Not at the minute is the answer. No is the answer.

Senator McALLISTER: Reflecting on your answer, is that because you don't know if you will or you won't, or because you definitively do not believe you will be undertaking it?

Dr Renwick : I think it's the former.

Senator McALLISTER: Would you require further resources to do a piece of work at that scale?

Dr Renwick : Yes. That's a large piece of work, as the L'Estrange review itself acknowledges.

Senator McALLISTER: Would it require any legislative amendment to your mandate to allow you to do a piece of work of that breadth?

Dr Renwick : I don't think so, because, as I mentioned to Senator Patrick, the Prime Minister can give me a matter relating to counterterrorism or national security, and my reading of the L'Estrange proposal is that that would probably be recovered by that remit.

Senator McALLISTER: Just finally: in your annual report, you said that you want to work with government to formalise responses to the INSLM's recommendations. How many outstanding recommendations are there?

Dr Renwick : I think I'd better take that on notice, Senator. Apart from what's in my annual report itself—and I think in your recent PJCIS report you may have made some remarks about that; that is to say that the review you undertook of my three reports resulted in the government responding in a formal way, I think, to some previous control order recommendations. So I think—and I'd like to check this—that the government may be up to date in relation to my control order recommendations, really because of your PJCIS review.

CHAIR: As there are no further questions for you, Dr Renwick, I thank you very much for your evidence and I wish you the best of luck in getting that plane home.

Dr Renwick : Thank you for your accommodation.

CHAIR: Our pleasure. I neglected to formally welcome the Senator the Hon. James McGrath, the Assistant Minister to the Prime Minister, earlier.