2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

Independent National Security Legislation Monitor Amendment Bill 2021

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable Michaelia Cash)

 

                                                                                                        

 

INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR AMENDMENT BILL 2021

General Outline

1. This Bill amends the Independent National Security Legislation Monitor Act 2010 (INSLM Act) to clarify reporting arrangements for the Independent National Security Legislation Monitor (the Monitor) and provide a framework for the engagement of staff to assist the Monitor. In doing so, it implements recommendations made by the Monitor and by the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community.

2. The Bill amends the INSLM Act to:

·          enable the Monitor to report on own motion inquiries in standalone reports, separate to the Monitor’s annual reports

·          clarify the process for a Monitor’s review following a reference from the Parliamentary Joint Committee on Intelligence and Security (PJCIS)

·          clarify the reporting arrangements for statutory reviews conducted by the Monitor

• provide a framework for the engagement of staff (including contractors) to assist the Monitor with the performance of functions and exercise of powers, and
• provide current and former staff of the Monitor with appropriate protections in relation to anything done, or omitted to be done, by that person in good faith during the course of assisting the Monitor in performing functions or exercising powers.

FINANCIAL IMPACT

3. This Bill does not have a financial 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 Amendment Bill 2021

4. 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

5. The Independent National Security Legislation Monitor Bill 2021 amends the INSLM Act to clarify reporting arrangements for the Monitor and provide a framework for the engagement of staff to assist the Monitor.

6. The Bill implements recommendations made in the Monitor’s 2017-18 and 2018-19 Annual Reports, and by the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community (the Richardson Review). The amendments also address practical concerns to ensure the Monitor has appropriate clarity and support in performing their functions and exercising their powers.

Amendments to clarify the Monitor’s reporting arrangements

7. A key function of the Monitor is to review Commonwealth counter-terrorism and national security legislation and to report on the outcomes of those reviews. The Monitor can conduct own motion reviews on specific matters (subsection 6(1) of the INSLM Act) and must conduct reviews on matters referred by the Prime Minister or the Attorney-General (section 7).

8. In addition, the PJCIS can refer matters to the Monitor (section 7A), and the Monitor may take up the matter as part of an own motion review (subsection 6(1A)). The INSLM Act also requires the Monitor to undertake a number of specific statutory reviews (see subsections 6(1B) and (1C)).

9. This Bill amends the INSLM Act to clarify the review and reporting arrangements for statutory reviews, own motion reviews, and reviews conducted under a PJCIS referral.

Reporting on own motion reviews

10. The Monitor can conduct own motion reviews under paragraphs 6(1)(a) and (b) in relation to specific matters, including the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation (subparagraph 6(1)(a)(i)). Own motion reviews must be reported on through an annual report (paragraph 29(1)(a)). There is no express provision which allows for the Monitor to report sooner on these reviews. The annual report must be given to the Attorney-General as soon as practicable after 30 June in each financial year, and in any event, by 31 December (subsection 29(2)).

11. In his 2017-18 and 2018-19 Annual Reports, the then Monitor, Dr James Renwick CSC SC, recommended that there should be an express power for the Monitor to report on a matter or matters within the statutory mandate but more urgently or particularly than by the annual report. The Richardson Review also recommended the INSLM Act be amended to provide that the Monitor may prepare and give to the Attorney-General a report on any matter relating to the performance of the Monitor’s functions at any time (recommendation 177). The Government accepted these recommendations.

12. As noted by Dr Renwick CSC SC in his 2017-18 Annual Report, the absence of a provision providing for separate reporting of own motion reports ‘has the potential to undermine [the Monitor’s] independence if an urgent own motion review cannot be reported until the end of a particular financial year’.

13. The Bill amends the Act to enable the Monitor, subject to certain conditions, to report on own motion inquiries in standalone reports ( special reports ), separate to the Monitor’s annual reports.

Reporting on statutory reviews

14. The INSLM Act is currently silent on the process for reporting on statutory reviews. Statutory reviews are not specifically described or identified as one of the functions of the Monitor under subsection 6(1), but section 6 has been amended over the years to require the Monitor to conduct reviews of specified Acts and provisions at specified times. To date, the Monitor has reported on statutory reviews in a standalone report, providing it to the Prime Minister or the Attorney-General, but there is no specific provision in the INSLM Act for reporting on a statutory review.

15. The Bill amends the Act to clarify that the Monitor should report on a statutory review by providing a copy of that report to the Attorney-General, who would then be required to table the report in Parliament. This reflects the arrangements for the Monitor when reporting on a reference from the Prime Minister or the Attorney-General, and would formalise the approach taken to date.

Reporting on referrals from the PJCIS

16. The PJCIS can refer a matter to the Monitor for review under section 7A. Subsection 6(1A) provides that if the Monitor decides to take up a referral from the PJCIS, the Monitor may perform the own motion inquiry functions set out in paragraphs 6(1)(a) and (b). The INSLM Act does not provide for reporting on a PJCIS review other than in the annual report; paragraph 29(1)(a) requires the annual report to include information on the exercise of the Monitor’s functions in paragraphs 6(1)(a) and (b). That the INSLM Act is silent on reporting on a referral from the PJCIS has the potential to raise issues around the interpretation of the provisions and the process for providing reports to the PJCIS and the Prime Minister or Attorney-General.

17. To ensure there is clarity around the reporting requirements for the PJCIS referrals under section 7A, the Bill amends the INSLM Act to expressly provide that the Monitor’s annual report may include information relating to the performance of the Monitor’s functions in relation to a referral from the PJCIS. The Bill also provides that the Monitor may, where necessary, report on referrals from the PJCIS through a standalone report (a special report ) separate to the Monitor’s annual report. This reflects the amendments allowing the Monitor to report on own motion inquiries separate to the Monitor’s annual report.

Amendments to address the engagement of staff to assist the Monitor

18. The Monitor is a part-time statutory appointment, responsible for reviewing the operation, effectiveness and implications of national security and counter-terrorism laws. When the position was established in 2010, it was envisaged that the Monitor would only undertake one review a year. Since then, the role has evolved, including through an increased number of statutory reviews of various legislation. The Monitor is now supported by three permanent employees of the Attorney-General’s Department, whose services have been made available to assist the Monitor, as well as legal representatives who are engaged in relation to specific reviews.

19. Given the Monitor’s position is part-time, and the increased workload arising from additional reviews, the support of staff is necessary and appropriate. The Bill provides a framework for the engagement of staff (including contractors) to assist in the performance of the Monitor’s functions, or the exercise of the Monitor’s powers, subject to the direction of the Monitor.

20. In addition, under the existing section 31 of the INSLM Act, the Monitor is protected from any legal action in relation to acts or omissions done in good faith in the performance of his or her functions or the exercise of his or her powers. This Bill extends this protection to staff of the Monitor, similar to arrangements for the staff of other statutory oversight officeholders, such as the Commonwealth Ombudsman, the Integrity Commissioner and the Inspector-General of Intelligence and Security.

Human rights implications

21. This Bill does not engage any of the applicable rights or freedoms as the amendments it makes are procedural in nature.

Conclusion

22. This Bill is compatible with human rights as it does not raise any human rights issues.

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1. This clause provides for the short title of the Act to be the Independent National Security Legislation Monitor Amendment Act 2021 .

Clause 2 - Commencement

2. This clause provides for the commencement of each provision in the Bill, as set out in the table. Item 1 in the table provides that all provisions commence on the day on which the Bill receives Royal Assent. 

Clause 3 - Schedules

3. This clause provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 - Amendments

Item 1 - After paragraph 6(1)(b)

4. This item inserts two paragraphs under subsection 6(1) to clarify that the functions of the Monitor include reporting on the Monitor’s own motion reviews and on reviews required by statute.

Functions of the Monitor include reporting on own motion reviews

5. The functions of Monitor include conducting own motion reviews in relation to specific matters, including the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation (paragraphs (6)(1)(a) and (b)).

6. New paragraph 6(1)(ba) clarifies the functions of the Monitor to explicitly include reporting on matters relating to the performance of the Monitor’s functions as set out in paragraphs (6)(1)(a) and (b).

Functions of the Monitor include reporting on statutory reviews

7. Statutory reviews are not currently specifically described or identified as one of the functions of the Monitor under subsection 6(1), but section 6 has been amended over the years to require the Monitor to conduct reviews of specified Acts and provisions at specified times, including parts of the  National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018  (subsection 6(1B)) and the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (subsection 6(1C)).

8. New paragraph 6(1)(bb) clarifies the functions of the Monitor to explicitly include reporting on reviews completed under subsections 6(1B) and (1C).

Item 2 - After paragraph 6(1)(c)

9. This item inserts paragraph 6(1)(ca), which clarifies the functions of the Monitor to include reporting on a matter referred to the Monitor by the PJCIS under section 7A.

Item 3 - Paragraph 6(1)(e)

10. This item repeals paragraph 6(1)(e), which established one of the Monitor’s functions as the function conferred by subsection 6(1D). Subsection 6(1D) required the Monitor to review the operation, effectiveness and implications of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Assistance and Access Act).

11. The Monitor completed this review and provided the report to the Attorney-General on 30 June 2020. The review was tabled on 10 July 2020.

12. This item is a consequential amendment to Item 5, which repeals subsection 6(1D).

Item 4 - Subsection 6(1A)

13. The item amends subsection 6(1A) which provides that the Monitor may perform their own motion functions in relation to a matter referred to the Monitor by the Committee on Intelligence and Security.

14. The amendment substitutes the text ‘the Monitor may perform the function set out in paragraph (1)(a) or (b) in relation to the matter’ with ‘under section 7A, the Monitor may perform the function set out in paragraph (1)(a), (b) or (ca) in relation to the matter’.

15. This reflects the amendment made by Item 2, which clarifies the functions of the Monitor to explicitly include reporting on a matter referred to the Monitor by the Committee on Intelligence and Security under section 7A.

Item 5 - Subsection 6(1D)

16. This item repeals subsection 6(1D), which required the Monitor to review the operation, effectiveness and implications of the amendments made by the Assistance and Access Act. As noted above, the Monitor has completed this review and it has been publicly released.

Item 6 - Paragraph 29(1)(a)

17. The PJCIS can refer a matter to the Monitor for review under section 7A of the INSLM Act. The Monitor may then perform the own motion review functions set out in the Act if the Monitor decides to take up the referral (subsection 6(1A)). The INSLM Act does not provide for reporting on such a review other than in the annual report, as annual reports must include information on the Monitor’s exercise of their own motion review functions. However, the current reporting provisions for annual reports do not explicitly refer to PJCIS reviews.

18. On 26 March 2019, the PJCIS referred the Assistance and Access Act to the Monitor for review under section 7A of the INSLM Act, which the Monitor accepted. The Monitor was also required to review the Assistance and Access Act as a statutory requirement under subsection 6(1D) of the INSLM Act. The Monitor prepared a single report on this issue for the two reviews, and provided the report to the Attorney-General on 30 June 2020. The review was tabled on 10 July 2020.

19. This review highlighted that the INSLM Act was silent on reporting on a referral from the PJCIS and the process for providing reports to the PJCIS and the Prime Minister and Attorney-General.

20. To ensure there is clarity around the reporting requirements for PJCIS referrals, this item expressly provides that the Monitor’s annual report may include information relating to the performance of the Monitor’s functions in relation to a referral from the PJCIS.

21. The Monitor will also be able report on PJCIS referrals through a standalone report, separate to the Monitor’s annual report. This reflects the amendments allowing the Monitor to report on own motion inquiries separate to the Monitor’s annual report (Item 8).

Item 7 - After paragraph 29(1)(b)

22. Subsection 29(1) outlines what information must be included in the Monitor’s annual reports, which includes information relating to the performance of the Monitor’s functions as set out in paragraphs 6(1)(a) and (b) of the Act .

23. This item clarifies that the Monitor’s annual report need not include such information, if that information has already been included in a report prepared under the new section 29A (a ‘special report’), discussed below.

Item 8 - After section 29

24. This item sets out the reporting requirements for the Monitor’s own motion reviews (including following a referral from the PJCIS under section 7A) and statutory reviews.

Special reports

25. Section 29A establishes a mechanism by which the Monitor may report on the performance of the Monitor’s own motion review functions (including following a referral from the PJCIS under section 7A) as part of a standalone report (a special report ).

26. This will enable the Monitor to report on own motion inquiries separately to the Monitor’s annual reports, in accordance with recommendations made by the then Monitor in the Monitor’s 2017-18 and 2018-19 Annual Reports, and the Richardson Review.

27. Section 29A provides that:

·          The Monitor may, from time to time, prepare and give to the Attorney-General a report (a special report ) relating to the performance of the Monitor’s functions as set out in paragraphs 6(1)(a), (b) and (ca).

·          Before preparing the special report, the Monitor must notify the Attorney-General and the Prime Minister in writing of the Monitor’s intention to prepare the special report, and provide reasons why, in the opinion of the Monitor, the special report is required.

·          If the Monitor considers that the special report contains information of the kind referred to in current subsection 29(3), the Monitor must also prepare and give to the Attorney-General, at the same time as the report, a version of the report which does not contain that information (a declassified report).

·          In 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.

·          The Attorney-General must cause a copy of the report (and the corresponding declassified report) to be presented to each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report.

28. This approach reflects the arrangements for the Monitor when reporting on a reference from the Prime Minister or the Attorney-General under section 30 of the INSLM Act.

Statutory review reports

29. The INSLM Act is currently silent on the process for reporting on statutory reviews. To provide clarity and to formalise the approach taken to date, this item sets out the reporting requirements following a statutory review.

30. Section 29B provides that where the Monitor completes a statutory review under subsection 6(1B) or (1C):

·          The Monitor must prepare and give to the Attorney-General a report relating to the performance of the review (a statutory review report ).

·          If the Monitor considers that the statutory review report contains information of the kind referred to in current subsection 29(3), the Monitor must also prepare and give to the Attorney-General, at the same time as the report, a version of the report which does not contain that information (a declassified report).

·          In 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.

·          The Attorney-General must cause a copy of the report (and the corresponding declassified report) to be presented to each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report.

31. This approach reflects the arrangements for the Monitor when reporting on a reference from the Prime Minister or the Attorney-General under section 30 of the INSLM Act.

Item 9 - Section 31

32. Section 31 provides that no action, suit or proceeding may be brought against the Monitor in relation to anything the Monitor has done or omitted to do in good faith in the performance of the Monitor’s functions, or the exercise of the Monitor’s powers.

33. This item inserts a ‘(1)’ before ‘No action’. This renumbers the existing ‘Immunity from legal action’ section to reflect the introduction an additional subsection under section 31 under Item 11.

Item 10 - Paragraph 31(1)(b)

34. This item substitutes ‘or his’ with ‘of his’ to correct a typographical error in the INSLM Act.

Item 11 - At the end of section 31

35. This item amends the existing immunity provision in section 31 to provide current and former staff of the Monitor with appropriate protections for anything done, or omitted to be done, in good faith in the course of assisting the Monitor in the performance of their functions or the excise of their powers.

36. This will bring the INSLM Act into line with other oversight bodies’ enabling legislation, including the Inspector-General of Intelligence and Security Act 1986 , Ombudsman Act 1976 and Law Enforcement Integrity Commissioner Act 2006 .

Item 12 - At the end of Part 5

37. This item provides a framework for the engagement of staff (including contractors) to assist the Monitor with the performance of their functions and the exercise of their powers.

Staff of the Independent National Security Legislation Monitor

38. The INSLM Act does not currently contain provisions relating to staff who assist the Monitor. Given the Monitor’s position is part-time, and the significant increase in the Monitor’s workload as part of the shift from ‘point in time’ assessments of a suite of laws (annual reports) to rolling reviews, successive Monitors have required the support and assistance of staff in order to adequately perform their functions under the Act.

39. This item amends the INSLM Act to provide that the Monitor may be assisted by the following persons:

·          APS employees in the Attorney-General’s Department whose services are made available to the Monitor by the Secretary of the Department

·          employees of Agencies (within the meaning of the Public Service Act 1999 )

·          persons employed under the Australian Security Intelligence Organisation Act 1979

·          persons employed under the Intelligence Services Act 2001

·          Parliamentary Service employees (within the meaning Parliamentary Service Act 1999 ), and

·          members of the Australian Defence Force.

40. The services of these persons may be made available to the Monitor in connection with the performance of any of the Monitor’s functions, or the exercise of the Monitor’s powers, and they are subject to the directions of the Monitor.

41. This provision is not intended to capture individuals who are providing information to the Monitor in the course of the Monitor conducting reviews. It is intended to apply only to persons who are staffing the Monitor’s office and secondees.

Contractors engaged by the Independent National Security Legislation Monitor

42. This item provides a mechanism for the Monitor to engage persons to assist in the performance of any of the Monitor’s functions, or the exercise of the Monitor’s powers.

43. The persons are to be engaged on the terms and conditions that the Monitor determines in writing, and they are subject to the directions of the Monitor.

44. The item also provides that the Monitor may delegate their power to engage a contractor to a member of the staff of the Monitor who is classified as an Executive Level 2 or equivalent or higher, or acting in a position usually occupied by a person with a classification level of Executive Level 2 or higher.

45. Given the Monitor’s position is part-time, this delegation of power is necessary and appropriate to enable the engagement of contractors as and when necessary.

46. The delegation of power is limited in scope and type of power (i.e. restricted to the power to engage a contractor) and in the category of people that may be authorised to exercise the power (i.e. restricted to staff of the Monitor classified as an Executive Level 2 or equivalent or higher). This reflects the staffing profile of the Monitor’s office, which does not include any Senior Executive Service staff.

47. The item also requires that a member of staff to whom the Monitor delegates their power to engage a contractor must, in exercising that power, comply with the directions of the Monitor.