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Independent National Security Legislation Monitor (Improved Oversight and Resourcing) Bill 2014

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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 Australia’s counter-terrorism and national security laws , as well as existing legislation.

 

3.                   The Bill also makes changes to reflect the reality of the Monitor’s role in light of rapid reform to Australia’s 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 Australia’s counter-terrorism and national security laws are operating effectively and accountably, and in a manner consistent with Australia’s 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 Australia’s 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

·          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 Government’s 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 Monitor’s expanded role.

Regulatory impact statement

10.       The Bill has no regulatory impact.



 

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 Australia’s 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 Australia’s counter-terrorism and national security laws operate in an effective and accountable manner, are consistent with Australia’s 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 Australia’s counter-terrorism and national security laws. The findings and recommendations contained in the previous Monitor’s 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 Australia’s 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 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 Australia’s counter-terrorism and national security laws are operating effectively and accountably, and in a manner consistent with Australia’s international obligations, including human rights obligations.

Human rights implications

17.               This Bill concerns the role of the Monitor as an independent reviewer of Australia’s 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 Monitor’s 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 Australia’s 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 world’s 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 .

 

 

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 rights, [3] provided the limitation is in accordance with human rights law. As the Parliamentary Joint Committee on Human Rights has explained:

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 Australia’s 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 person’s 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 Monitor’s 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.

 

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 Australia’s 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 world’s 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 world’s 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.

 

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



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 Australia’s 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.

 

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 Australia’s 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 Australia’s security; and

·          is or would be effective in responding to terrorism and terrorism-related activity; and

·          is or would be consistent with Australia’s 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 proposed legislation when considering whether Australia’s 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 Australia’s 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 Australia’s 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 Australia’s 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 Monitor’s 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 Australia’s counter-terrorism and national security legislation and proposed counter-terrorism and national security legislation is or would be consistent with Australia’s 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.

 

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 Australia’s counter-terrorism and national security legislation; and any other law of the Commonwealth to the extent that it relates to Australia’s counter-terrorism and national security legislation and consider on his or her own initiative, whether any of these laws:

·          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 Australia’s 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 Australia’s 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 Australia’s independent expert authority on human rights, the Australian Human Rights Commission, and the person appointed to review Australia’s counter-terrorism and national security laws for, among other things, compliance with Australia’s international human rights obligations.

 

75.               One of the existing objects of the Act is to ensure that Australia’s counter-terrorism and national security legislation is ‘consistent with Australia’s international obligations including human rights obligations’ and ‘contains appropriate safeguards for protecting the rights of the individuals’.

 

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 Australia’s 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 Australia’s 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 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 Australia’s 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 Monitor’s 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 Monitor’s functions have recently been significantly expanded by the Counter Terrorism Legislation (Foreign Fighters) Amendment Act 2014 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, ASIO’s 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 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 Monitor’s 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).

 

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 Monitor’s 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 Monitor’s 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 Monitor’s 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 Monitor’s 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.

 

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 Monitor’s 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 Monitor’s 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.

 

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 Monitor’s 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 Australia’s 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 Australia’s 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).

 

140.           These proposed ame ndments 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.

 




[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 .

[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%20Report%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.

[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.

[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].

[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.

[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.