Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Independent Reviewer of Terrorism Laws Bill 2008 [No. 2]

Part 2 Independent Reviewer

   

6   Appointment of an Independent Reviewer of Terrorism Laws

             (1)  For the purposes of this Act there must be an Independent Reviewer of Terrorism Laws.

   (2)  The Independent Reviewer must be appointed by the Governor-General.

   (3)  Before a recommendation is made to the Governor-General for the appointment of a person as the Independent Reviewer, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives about the appointment.

7   Acting Independent Reviewer

             (1)  The Prime Minister may appoint a person to act as the Independent Reviewer:

                     (a)  during a vacancy in the office of Independent Reviewer; or

                     (b)  during any period, or during all periods, when the Independent Reviewer is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office;

but a person appointed to act during a vacancy must not continue so to act for more than 12 months.

             (2)  Before appointing a person to act as the Independent Reviewer, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives about the appointment.

8   Functions of the Independent Reviewer

             (1)  The functions of the Independent Reviewer are:

                     (a)  at the request of the responsible Minister; or

                     (b)  at the request of the Parliamentary Joint Committee on Intelligence and Security; or

                     (c)  on the Independent Reviewer’s own motion, at least every 2 years;

to review terrorism laws in order to assess whether the laws and their operation:

                     (d)  are an effective and efficient means of preventing, detecting or prosecuting terrorist acts; and

                     (e)  alter fundamental legal principles, such as habeas corpus; and

                      (f)  are consistent with Australia’s human rights, privacy and other international obligations; and

                    (fa)  continue to be necessary; and

                    (fb)  are proportional to the extant threat of terrorism; and

                     (g)  have any adverse social consequences.

             (2)  The Independent Reviewer also has the following additional functions:

                     (a)  investigation of the manner in which relevant law enforcement agencies interpret and implement terrorism laws; and

                     (b)  investigation of the use of their powers by relevant law enforcement agencies in interpreting and implementing terrorism law.

             (3)  The Independent Reviewer may, of his or her own motion:

                     (a)  make submissions to parliamentary or other committees examining bills making, amending or otherwise affecting terrorism laws; and

                     (b)  participate in reviews of terrorism laws, such as reviews by the Council of Australian Governments.

9   Conduct of reviews by the Independent Reviewer

             (1)  The Independent Reviewer must, before commencing a review into legislation, inform the responsible Minister that the Independent Reviewer proposes to conduct the review.

             (2)  The Independent Reviewer may, for the purposes of this Act, obtain information, including information that is classified as confidential, from such persons, and make such inquiries, as the Independent Reviewer thinks is necessary for the conduct of a review.

             (3)  The Independent Reviewer may, before commencing a review of legislation, have regard to the functions of the Inspector-General of Intelligence and Security, the Australian Security Intelligence Organisation, the Australian Federal Police, the Human Rights and Equal Opportunity Commission, the Auditor-General, the Ombudsman, and the Privacy Commissioner, in relation to that legislation, and may consult with all or any of them in relation to the review, with a view to ensuring a cooperative and comprehensive approach and to avoiding inquiries being conducted unnecessarily by more than one of them.

10   Power to obtain information and documents

             (1)  Where the Independent Reviewer believes that a person is capable of producing documents relevant to the review being undertaken, the Independent Reviewer may, by notice in writing, require that person, within such period as is specified in the notice and which must be reasonable, to produce such documents to the Independent Reviewer.

             (2)  Where documents are produced, the Independent Reviewer may take possession of, make copies of, or take extracts from such documents and may retain possession of them for such period as the Independent Reviewer considers is necessary.

             (3)  Where the Independent Reviewer requires access to documents for the purposes of a review under this Act, and the documents have a national security classification, the Independent Reviewer must make arrangements with relevant agencies for protection of the documents while they remain in the Independent Reviewer’s control, and for the secure return of the documents.

             (4)  Where the Independent Reviewer takes possession of, makes copies of, or takes extracts from documents, the documents, copies or extracts, as the case may be, will be held securely by the Independent Reviewer and within 6 months of the completion of the review:

                     (a)  original documents or extracts from documents received from agencies must be returned to those agencies; and

                     (b)  copies of documents or copies of extracts from documents held by the Independent Reviewer must be destroyed.

             (5)  Where the Independent Reviewer believes that a person is capable of providing information relevant to the review being undertaken, the Independent Reviewer may, by notice in writing, require that person to attend before the Independent Reviewer to answer questions as relevant.

          (5A)  If a person is required to attend before the Independent Reviewer under subsection (5), the Independent Reviewer may:

                     (a)  require the person, before answering questions, either to take an oath or to make an affirmation in a form approved by the Independent Reviewer; and

                     (b)  administer an oath or affirmation to the person.

             (6)  A person is not liable to any penalty under the provisions of any other enactment by reason of his or her giving the information to the Independent Reviewer or producing the document to the Independent Reviewer.

             (7)  For the purposes of the Privacy Act 1988 , the giving of the information to the Independent Reviewer or the production of the document to the Independent Reviewer is taken to be authorised by law.

10A   Offences

                   A person who after being given a notice under subsection 10(1) or 10(5) fails to comply with the notice when required to do so or fails to answer a question that the Independent Reviewer requires the person to answer is guilty of an offence punishable on conviction:

                     (a)  in the case of a natural person—by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months or both; or

                     (b)  in the case of a body corporate—by a fine not exceeding $5,000.

11   Independent Reviewer to report

             (1)  Upon completion of each review of the operation, effectiveness and implications of a law relating to terrorism, the Independent Reviewer will report to the relevant Minister.

             (2)  A Minister must, as soon as practicable after receiving a report of a review of terrorism laws by the Independent Reviewer:

                     (a)  present to each House of the Parliament a copy of the report, subject to the Independent Reviewer’s certification that the report should be so presented and the deletion of any part whose publication the Independent Reviewer certifies may affect adversely national security or certifies should not be published on other compelling grounds;

                     (b)  present to each House of the Parliament a response to the report, provided that a response to any report not certified for presentation, or any part whose publication the Independent Reviewer has certified should be deleted, must be made only to the Independent Reviewer.

             (4)  A report of the Independent Reviewer under this section that has been presented to the Parliament must be considered by the Parliamentary Joint Committee on Intelligence and Security and included in its annual report to the Parliament.

11A   Protection from civil action

             (1)  Neither the Independent Reviewer, nor a person acting on behalf of the Independent Reviewer, is liable to an action or other proceeding for damages for or in relation to any act done or omitted to be done in good faith in performance or purported performance of any function or in exercise or purported exercise of any power conferred on the Independent Reviewer.

             (2)  Where:

                     (a)  a complaint has been made to the Independent Reviewer; or

                     (b)  a document has been produced, or information or evidence has been given to the Independent Reviewer;

a person is not liable to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the complaint was made, the document was produced or the evidence was given.

11B   Annual report

             (1)  The Independent Reviewer must, as soon as practicable after each 30 June, prepare and provide to the Prime Minister a report of the operations of the Independent Reviewer during the year that ended on that 30 June.

             (2)  The Prime Minister must cause a copy of a report provided under subsection (1) to be presented to each House of the Parliament as soon as practicable after the report is presented to the Prime Minister, subject to the Independent Reviewer’s certification that the report should be so presented and to the deletion of any part the publication of which the Independent Reviewer certifies may adversely affect national security or which the Independent Reviewer certifies should not be published on other compelling grounds.