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Finance and Public Administration Legislation Committee
17/10/2016
Estimates
PRIME MINISTER AND CABINET PORTFOLIO
Independent National Security Legislation Monitor

Independent National Security Legislation Monitor

[16:18]

CHAIR: I welcome Mr Gyles, the Independent National Security Legislation Monitor. I invite you to make an opening statement.

Mr Gyles : I thank the chair and the members of the committee for accommodating my arrangements. On the fourth of this month, I tendered my resignation from office to the Governor-General, effective 31 October. That was done reluctantly and for personal reasons. In early July, I had informed the Attorney-General, Senator Brandis, of the necessity to do so as soon as possible after the election, and I informed Mr Dreyfus shortly after that, with the knowledge of the Attorney-General. My annual report for the period 2015-16 was provided to the Prime Minister on 5 October, and I will complete a report on questioning and detention powers by my departure on 31 October.

Senator XENOPHON: Thank you very much, Mr Gyles. I hope the Attorney will not mind me saying that I have been very impressed by the dignified, thorough and very fair way that you have conducted yourself as the Independent National Security Legislation Monitor. As someone who has been concerned about the legislation, I think you have been impeccable in the way that you have handled our concerns and the way that you have reported on it, so thank you for your service.

Mr Gyles : Thank you.

Senator XENOPHON: I am very sorry to hear that you are leaving this position. What transitional arrangements have been made for the kind of work that is being done to be continued? I might ask the Attorney what the likely timeline might be for a worthy replacement to Mr Gyles.

Mr Gyles : I will leave the Attorney to answer that part of it. I have, with my current staff, put forward to the Department of Prime Minister and Cabinet a structure which will be necessary to ensure that the work of the office proceeds. I believe that that has been approved, so, from an administrative point of view, steps are in train to make sure that there is, as far as possible, a seamless handover.

Senator XENOPHON: Is there someone who, on a transitional basis, can act in your place and do the work?

Mr Gyles : That is a matter for the Attorney. I have not heard about that, but my principal adviser will be staying on and completing—there is one review that we commenced in June which he can progress so that the new monitor can come in with something in train.

Senator XENOPHON: I understand that it has been relatively recent since Mr Gyles tendered his resignation, but can the Attorney advise as to what the likely timeframe is for his replacement to be found?

Senator Brandis: I do not want to tie myself down to any specific period, but, because Mr Gyles did give an early indication of his departure and has been, as one would expect, extremely cooperative about the actual time of his resignation, I would not expect any undue or particular delay. Obviously, this is not my appointment; this is an appointment within the Department of the Prime Minister and Cabinet, on which I will be consulted. But, certainly, the names of potential replacements for Mr Gyles are under consideration.

Senator XENOPHON: I have raised issues of resources with you previously, Mr Gyles, given that a significant amount of legislation has been passed. You have prepared a very comprehensive report on the impact on journalists of section 35P of the ASIO Act—a 173 page report, including appendices—in October of last year. Can you indicate or make any observations, given that you are leaving this position soon, as to the workload and the adequacy or otherwise of staffing arrangements, given that there are many pieces of legislation, including fresh pieces of legislation, coming up within your purview?

Mr Gyles : Yes. In the annual report, which has not yet been tabled, I did make the point that because of the number of pieces of legislation that need to be reviewed that it is a considerable task, and indicated that discussions were in train at that time with the Department of Prime Minister and Cabinet to make sure there was adequate resourcing.

Senator XENOPHON: That would mean additional resourcing?

Mr Gyles : Yes. And, as I understand it, our submission or suggestions on that matter have been approved.

Senator XENOPHON: Okay. And further to that, can you tell us what the current inquiries are that you are working on and prospective inquiries that the office of the monitor is proposing in the coming months?

Mr Gyles : Yes. The report that I will complete by 31 October is into certain questioning and detention powers in relation to terrorism—ASIO, the Crime Commission and the AFP in particular.

The review which we commenced in June relates to aspects of the foreign fighters bill, particularly dealing with the refusal of parties to leave, the re-entry issue and that kind of thing. Initial steps have been taken to get that review underway. The list of things to be done—if I could just mention some of them—includes, not necessarily in order: firstly, the warrants which are available for use by the AFP, ASIO and the ASIO special intelligence operations. I did look at the special intelligence operations in the context of 35P, but not in a holistic fashion.

Then there needs to be a review of pre- and post-criminal processes, including disruption and prevention powers; preventative detention orders; stop-and-search powers; control orders; and, potentially now, post-conviction detention orders. There needs to be a review of chapter 5 of the Commonwealth Criminal Code. There needs to be a review of the provisions of the Crimes Act relating to bail and non-parole periods. There needs to be a review of part 4 of the Charter of the United Nations Act, in particular, the legislation relating to the financing of terrorism.

A review needs to be done on matters related to cybersecurity, including access to metadata. A review needs to be done of the provisions relating to suspension and cessation of welfare payments of those connected with or suspected of being connected with terrorism, that aspect of the foreign fighters legislation having been excised for present purposes. There needs to be a review of the provisions of the National Security Information (Criminal and Civil Proceedings) Act 2004. The Defence Force call-out powers need to be reviewed. And there needs to be a watching brief on the activities of the various agencies.

That is an indicative work program which lies ahead.

Senator XENOPHON: It is quite a heavy workload.

Mr Gyles : It is quite a heavy work program, and for that reason there needs to be the increased resources that I have mentioned.

Senator XENOPHON: Just given the time constraints, can you tell us whether your request for additional resources has been met in full or in part by the Department of Prime Minister and Cabinet?

Mr Gyles : As I understand it—and I will be corrected if I am wrong—the minute that was prepared has come back approved. I am not sure what that means in public service terms, but I think it is good!

Mr McKinnon : Can I just add a bit of clarification there? As Mr Gyles has suggested, he has made recommendations. We have agreed to resource the recommendations as they were made.

Senator XENOPHON: So that is—

Mr McKinnon : There is no difference between us.

Senator XENOPHON: Yes. Since this is the last time you will be appearing before Senate estimates in this capacity—and probably the last time you will be appearing before Senate estimates, if you are lucky!—

Mr Gyles : Yes!

Senator XENOPHON: do you have any overarching concerns, or any particular concerns, about the legislation in the context of your role? And I note that you made some quite strong comments in respect of section 35P, and I note that the government has taken on board your recommendations for the reform of section 35P.

Mr Gyles : Incidentally, there is a similar secrecy provision in relation to questioning and detention warrants—similar but not identical—which will be looked at. The one point that strikes me is that the differing roles between intelligence collecting on the one hand and law enforcement on the other hand is blurred. Whether it is becoming more or less blurred is another issue. I think that needs to be borne in mind.

Senator XENOPHON: In what way? To what extent does that concern you?

Mr Gyles : Putting it in layman's terms, ASIO is not a law enforcement body; it is an intelligence-collecting body. The Australian Federal Police is a law enforcement body. The Crime Commission is an intelligence-collecting body. Whilst the legislation may be relatively clear as to those points—in this day and age you have task forces and cooperation which is very good—there is the capacity, which needs to be carefully watched so that you just do not take the easiest path or the most advantageous path to law enforcement and do that sort of thing. I am not suggesting that is the case, but it is a critical distinction and, at times, maybe we lost sight of it.

Senator XENOPHON: That is a distinction that ought to be drawn more clearly?

Mr Gyles : I think it is drawn clearly but it does get fudged at the edges.

Senator XENOPHON: It is something that either you or your successor will be or ought to be looking at?

Mr Gyles : Yes.

Senator XENOPHON: My final question is: in terms of the plethora of counterterrorism laws that have been introduced—and I understand the reasons for that—do you think there ought to be some overarching monitoring of the efficacy of that? In other words, to what extent are some laws more effective than others in terms of keeping the community safe?

Mr Gyles : That is the role of the monitor. That is why when I looked at questioning detention I did not look at ASIO; I looked at the three of them together because otherwise you do not get the picture. Then you have to see them in relation to preventative detention orders, control orders and all of that. You have to see it as a whole. You have to see who is doing what, what powers are being exercised and what are not. And if they are not being exercised then why not? That is what the monitor is supposed to be doing.

Senator XENOPHON: Do you have any general views about where the sum of the powers may be unwarranted or not properly exercised? I am not suggesting improper but that there has been a blurring of lines that may not be useful in terms of the efficacy of dealing with terrorism.

Mr Gyles : I do not think there is anything general I want to say about that. I think that requires looking at the nuts and bolts of what is going on.

Senator XENOPHON: All the best and thank you very much for your service.

Mr Gyles : Thank you.

CHAIR: Thank you, Mr Gyles, for being here today and for your service.

Senator Brandis: Before Mr Gyles leaves the table, I will also add my thanks to him for his work as the Independent National Security Legislation Monitor, which is a very, very important role. And if you will indulge me for a moment, Mr Chairman, I have known Mr Gyles for about 20 years. I first encountered him when he was a judge of the Federal Court and I appeared on behalf of an applicant before him in one of those gargantuan commercial cases. It was a cartel case that was very, very complicated and almost everybody you could think of was in it. Tom Bathurst, now the Chief Justice of New South Wales, was in it for one party, I think Dyson Heydon, later of the High Court, was in it for another party and Mark Speakman, now a member of the New South Wales government, was in it for another party. I have known Mr Gyles ever since, in one way or another.

He has a very illustrious record of service to the bar, to the bench and to the public, most recently in this role, and it is not the first role of public service beyond the bar or bench that he has undertaken. On behalf of the government and the people of Australia I want to record deep appreciation for his service and wish him and his family well into the future.

CHAIR: Thank you, Senator Brandis.

Proceedings suspended from 16:37 to 16:44