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Independent National Security Legislation Monitor Bill 2010

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2008-2009

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

NATIONAL SECURITY LEGISLATION MONITOR BILL 2009

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

(Circulated by authority of the Cabinet Secretary, Senator the Hon Joe Ludwig)



AMENDMENTS TO

NATIONAL SECURITY LEGISLATION MONITOR BILL 2009

 

OUTLINE

 

The purpose of these amendments to the National Security Legislation Monitor Bill 2009 (the ‘Bill’) is to respond to the report of the Senate Finance and Public Administration Committee (the Committee) following its inquiry into the Bill.

 

The Bill establishes the position of the National Security Legislation Monitor (the ‘Monitor’).  In response to the Committee’s report, the amendments would emphasise the independent nature of the Monitor by changing its title.  The reporting requirements would be expanded to allow the Monitor to include references from the Prime Minister in the annual report as the Monitor considers appropriate.  The amendments would also provide that the Parliamentary Joint Committee on Intelligence and Security (PJCIS) may refer matters that it becomes aware of in the performance of its functions to the Monitor for the Monitor to consider reviewing. 

 

The amendments would also:

·        Clarify that the Monitor has the power to conduct inquiries on his or her own initiative on subjects which are within the functions of the Monitor.

·        Allow the Monitor to consider on his or her own initiative whether Australia’s counter-terrorism and national security legislation and any other law of the Commonwealth to the extent it relates to these laws is necessary, contains appropriate safeguards, and is a proportionate response to the threat of terrorism or threat to national security or both.

·        Clarify that the Monitor may consult with the Privacy Commissioner, the Human Rights Commissioner and the head of any other statutory agency.

·        Clarify that Australia’s obligations under international agreements include human rights, counter-terrorism and international security obligations.

 

 

FINANCIAL IMPACT STATEMENT

 

Funding of $1.36 million over four years was provided in the 2009-10 Budget to fund the establishment of the Office of the National Security Legislation Monitor.



NOTES ON AMENDMENTS

 

 

Amendment 1

Amendment 1 would omit paragraph (c) of clause 3 of the Bill.  It would substitute proposed paragraph (c) which would provide that Australia’s international obligations include human rights obligations as well as counter-terrorism and international security obligations.  For example, these include Australia’s human rights obligations such as the International Convention on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.  Counter-terrorism obligations include the United Nations counter-terrorism conventions and protocols and the United Nations Security Council Resolutions 1267 and 1373 concerning the freezing of assets of terrorists.  This amendment relates to amendment 10.

 

Amendment 2

Amendment 2 would insert the proposed definition of the Parliamentary Joint Committee on Intelligence and Security to mean the committee of that name established under the Intelligence Services Act 2001

 

Amendment 3

Amendment 3 would insert the proposed definition of National Security Legislation Monitor so that it follows alphabetically after the definition of “head” in clause 4.  This is a consequence of its name change to the Independent National Security Legislation Monitor.

 

Amendment 4

Amendment 4 would omit the definition of National Security Legislation Monitor in clause 4 as the new definition would be substituted in amendment 3.

 

Amendment 5

Amendment 5 implements recommendations 5 and 7 of the Committee’s report.  It would make explicit that the Monitor can review on his or her own initiative the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation and any other law of the Commonwealth to the extent that it relates to the counter-terrorism and national security legislation. 

 

Amendment 6

Amendment 6 implements recommendations 5 and 11 of the Committee’s report.  It would omit paragraph (1)(b) of clause 6 and provide in proposed paragraph (1)(b) that the Monitor may consider on his or her own initiative whether Australia’s counter-terrorism and national security legislation contains appropriate safeguards for protecting the rights of individuals, remains necessary and is proportionate to any threat of terrorism or threat to national security or both.

 

Amendment 7

Amendment 7 implements recommendation 6 of the Committee’s report.  It would insert proposed subclause 6(1A) which would provide that the Monitor could perform his or her functions in paragraph (1)(a) or (b) in clause 6 if the Parliamentary Joint Committee on Intelligence and Security (PJCIS) refers a matter to the Monitor.

 

Amendment 8

Amendment 8 would amend the heading to clause 7 to make it clear this clause refers to references by the Prime Minister to the Monitor.

 

Amendment 9

Amendment 9 implements recommendation 6 of the Committee’s report.  It would insert proposed clause 7A which would provide that the PJCIS may refer a matter to the Monitor that it becomes aware of in the course of performing its functions under subsection 29(1) of the Intelligence Services Act 2001 .  It would provide that it would be a function of the PJCIS to be able to refer a matter to the Monitor.  The Monitor would only be able to examine matters referred by the PJCIS if they are within the Monitor’s functions.  For example, the Monitor would not be able to review the administration and expenditure of the agencies mentioned in paragraph 29(1)(a) of the Intelligence Services Act 2001 since reviewing the priorities of, and use of resources by, agencies is not a function of the Monitor as provided in subclause 6(2) of the Bill.

 

The Monitor would not be compelled to act on the PJCIS reference.  The Monitor would retain discretion in dealing with any references provided by the PJCIS.  This would ensure that the Monitor’s resources would be used efficiently.  The Monitor would be able to report on the PJCIS references in the annual report.

 

Amendment 10

Amendment 10 implements recommendation 10 of the Committee’s report and relates to amendment 1.  It would omit paragraph (a) of clause 8 and would substitute proposed paragraph (a) which would provide that Australia’s international obligations include human rights obligations as well as counter-terrorism and international security obligations.  This highlights that Australia’s international obligations include but also extend beyond human rights to include obligations in the counter-terrorism and international security spheres as well.

 

Amendment 11

Amendment 11 is a consequential amendment which would omit paragraph 2(a) of clause 10.  This amendment relates to amendment 12.

 

Amendment 12

Amendment 12 implements recommendation 9 of the Committee’s report and would insert proposed paragraphs (ca) (cb) and (cc) in clause 10 providing that the Monitor may consult with the Privacy Commissioner, the Human Rights Commissioner and the head of any other agency established under Commonwealth and State and Territory laws.

 

Amendment 13

Amendment 13 implements recommendation 12 of the Committee’s report and would omit subclause (1) in clause 29 and substitute new subclause (1) which would provide that the Monitor’s annual report must include details about references from the Prime Minister as the Monitor considers appropriate.  For example, the Monitor may wish to report on the number of references made by the Prime Minister each year, and include any non-sensitive information about the references as the Monitor considers appropriate.  This is similar to the type of information contained in the Inspector-General of Intelligence and Security’s annual reports.

 

Amendment 14

Amendment 14 would omit the heading to clause 30 and replace it with a heading which makes it clear that this report relates to a reference made by the Prime Minister.

 

Amendment 15

Amendment 15 would include additional wording in subclause 30(1) to make explicit that the Monitor must report to the Prime Minister on a reference made by the Prime Minister under clause 7.

 

Amendment 16

Amendment 16 is a consequential amendment which would substitute in clause 3 “an” for “a” as a result of the Monitor’s name change to the “Independent National Security Legislation Monitor”.

 

Amendment 17

Amendment 17 is also a consequential amendment which would substitute in clause 5  “an” for “a” as a result of the Monitor’s name change to the “Independent National Security Legislation Monitor”.

 

Amendment 18

Amendment 18 is another consequential amendment which would insert the word “Independent” in clause 8.

 

Amendment 19

Amendment 19 would insert the word “Independent” before “National Security Legislation Monitor” wherever occurring throughout the Bill.  This implements recommendation 3 of the Committee’s report.

 

Amendment 20

Amendment 20 would omit “a National” and insert the words “an Independent National” in the title which implements recommendation 2 of the Committee’s report.