Purpose of the Bill

The purpose of the Independent National Security Legislation Monitor Amendment Bill 2021 (the Bill) is to amend the Independent National Security Legislation Monitor Act 2010 (INSLM Act) to:

• enable the Independent National Security Legislation Monitor (the INSLM) to report on reviews undertaken on their own initiative (own motion inquiries) in standalone reports, separate to the INSLM’s annual reports as currently required
• clarify the process for an INSLM review following a reference from the Parliamentary Joint Committee on Intelligence and Security (PJCIS)
• clarify the reporting arrangements for statutory reviews conducted by the INSLM
• provide a framework for the engagement of staff (including contractors) to assist the INSLM with the performance of functions and exercise of powers and
• provide current and former staff of the INSLM 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 INSLM in performing functions or exercising powers.[1]

The first dot point above implements a recommendation made by the INSLM and supported by the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community led by Dennis Richardson, former head of the Australian Security Intelligence Organisation (the Richardson Review).[2]

Background

The INSLM independently reviews the operation, effectiveness and implications of national security and counter-terrorism laws. The INSLM considers whether the laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats, and remain necessary.[3]

Among other amendments, the Bill implements a recommendation made in the INSLM’s 2017–18[4] and 2018–19 annual reports,[5] and supported by the Richardson Review.[6]

Recommendations for amendment made by the INSLM

In February 2020, the then INSLM, Dr James Renwick CSC SC, noted in the 2018–19 annual report of the INSLM:

As indicated in previous years or reports, there are two important, and if I may say so, self-evident, amendments urgently needed to the INSLM Act, which I now repeat, namely:

1. That the INSLM Act now be amended to provide for an express power for the INSLM to report on a matter or matters within the statutory mandate but more urgently or particularly than by the annual report;
2. That the INSLM Act now be amended to require a formal response by the executive government to INSLM reports to be tabled in the Parliament within 12 months of delivery of the reports.[7]

The Government response to those recommendations was tabled in Parliament in February 2020.[8] The Government supported Recommendation 1, stating:

The procedure for tabling reports under the Independent National Security Legislation Monitor Act 2010 is premised on the INSLM conducting only one review per year. This no longer matches current practice. Accordingly, the Government supports this legislative change to the INSLM Act.[9]

However, the Government did not support Recommendation 2:

The Government notes that where the recommendations of INSLM reports raise complex policy and legal questions that require detailed consideration and consultation, it may take more than 12 months for the Government to formally respond to those reports. Therefore, the Government does not support this recommendation. However, the Government will continue to endeavour to advise Parliament as soon as practicable of its responses to future INSLM recommendations.[10]

Richardson Review recommendations

The Richardson Review considered:

• whether the INSLM Act should be amended to provide an express power for the INSLM to report on a matter more urgently or particularly than by annual report or pursuant to a reference from the Prime Minister or the Attorney-General and
• interest group concerns about the Government’s lack of response to the INSLM’s recommendations.[11]

Recommendations 177 and 178 of the Richardson Review responded to these concerns:

The Independent National Security Legislation Monitor Act should be amended to provide that the INSLM may prepare and give to the Attorney-General a report on any matter relating to the performance of the INSLM’s functions at any time. The Attorney-General should be required to table an (unclassified) copy of the report in each House of the Parliament within a reasonable time of receiving the report.[12]

As a matter of good practice, the Government should provide a publicly available response to the INSLM’s recommendations within 12 months of the INSLM’s report being tabled in Parliament.[13]

The Government agreed with Recommendations 177 and 178 in its December 2020 response to the Richardson Review, with the caveat:

The Government notes that where the recommendations of INSLM reports raise complex legal and policy questions, it may take more than 12 months for the Government to formally respond to those reports. The Government will continue to endeavour to advise Parliament as soon as practicable of its responses to future INSLM recommendations.[14]

Government not required to formally respond to INSLM report

The Richardson Review specifically considered submissions from the INSLM and interest groups on the question of legislating a requirement for a timely government response to INSLM reports.[15] However, the Richardson Review ultimately concluded that while the Government should consider INSLM reports and respond to them in a timely manner, no requirement to do so should be legislated.

The INSLM considers that ‘an important part of the process begun by conducting a review and reporting, is the timely response of the government of the day’. Given the INSLM’s ongoing role (compared to a Royal Commission whose role is over once it has delivered its report), the INSLM submitted that it has an interest in considering the implementation of its recommendations.

The Review agrees with public stakeholders that the Government should give appropriate consideration to the recommendations of independent experts. The Government specifically established the role of the INLSM to provide independent, expert analysis to it, and, therefore, should consider that analysis and respond to it in a timely manner.

However, the Review considers it would be incongruent with the approach to Government responses to parliamentary committee reports to legislate this requirement. There is generally no requirement in legislation for the Government to respond to parliamentary committee recommendations (rather, successive governments have undertaken to respond to parliamentary committee reports, including by way of resolutions).[16]

Committee consideration

Selection of Bills Committee

At its meetings of 24 June and 4 August 2021, the Senate Selection of Bills Committee deferred consideration of the Bill to its next meeting.[17]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills reported that it had no comment on the Bill.[18]

Policy position of non-government parties/independents

As at the date of this Digest, no non-government parties or independents appear to have commented publicly on the Bill.

Position of major interest groups

Several submissions to the Richardson Review supported a timely government response to INSLM reports: [19]

• Dr Anthony Bergin and Kate Grayson submitted ‘there should be a legislative requirement for the government to table a timely response to the INSLM reports.’
• The Law Council of Australia recommended that ‘the INSLM Act be amended to require the Government to provide a public response to the INSLM’s recommendations within six months.’
• The Human Rights Law Centre recommended ‘mechanisms … to require the Government to respond to the INSLM’s recommendations before a bill can pass’, although recognised the need for flexibility for Bills to be expedited ‘where there are genuine exceptional circumstances.’
• Professor George Williams AO and Dr Keiran Hardy expressed the view that:

Certainly, the record to date demonstrates that Australian governments (on both sides of politics) are very reluctant to accept recommendations for change from executive bodies, and particularly from the INSLM. The government has employed obvious political tactics (such as introducing the INSLM’s reports into Parliament on budget day) so that valuable recommendations have been overshadowed by other events. Indeed the government has not only ignored the INSLM’s recommendations to reduce the scope of Australia’s counterterrorism laws, but also to expand them.[20]

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[21]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[22]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) made no comment in relation to the Bill. The PJCHR makes no comment when a Bill does not engage, or only marginally engages, human rights; promotes human rights; and/or permissibly limits human rights.[23]

Key issues and provisions

Source of INSLM reviews

There are four sources for INSLM reviews:[24]

1. Own motion reviews. The INSLM may, at any time, conduct a review on his or her initiative (own motion review) of Australia’s counter-terrorism and national security legislation and other Commonwealth laws relating to that legislation: subparagraphs 6(1)(a)(i) and (ii) of the INSLM Act.
2. Referral from the Prime Minister or Attorney-General. The Prime Minister (and, since 2018, the Attorney-General) may, either independently or at the request of the INSLM, refer ‘a matter relating to national security or counter terrorism’ to the INSLM for review: section 7 of the INSLM Act.
3. Special reviews required by the INSLM Act. The INSLM Act may require the INSLM to conduct reviews of certain legislation within a particular time frame: for example, subsections 6(1B) and 6(1C) of the INSLM Act require review of parts of the Criminal Code.
4. PJCIS referral. The PJCIS may refer a matter it becomes aware of in the course of performing its functions to the INSLM: section 7A of the INSLM Act.

Introduction of special reports for own motion inquiries

Own motion reviews must be reported in the annual report of the INSLM.[25] There is no express provision which permits the INSLM to report sooner on these reviews. The Bill amends the INSLM Act to enable the INSLM, subject to certain conditions, to report on own motion inquiries in standalone reports (special reports), separate to the INSLM’s annual reports.

The previous INSLM, Dr James Renwick, noted the benefit to public trust in the structures of government of regular and open reporting about the exercise of national security and counter‑terrorism powers:

It cannot be emphasised too strongly how important it is that all that can be published about the exercise of such powers, consistently with the public interest, should be, and regularly, and not, as it were, as a favour, but as a matter of duty by the executive government, owed to the other branches of government and to civil society. One often overlooked reason for publishing information is to prevent or correct error and to forestall mischievous speculation. In a world where malicious actors propound ‘fake news’ unnecessary secrecy can be seriously counter-productive.[26]

Dr Renwick cited with approval the Anderson Report of the UK Investigatory Powers Review:[27]

Public consent to intrusive laws depends on people trusting the authorities, both to keep them safe and not to spy needlessly on them…

Trust in powerful institutions depends not only on those institutions behaving themselves (though that is an essential prerequisite), but on there being mechanisms to verify that they have done so. Such mechanisms are particularly challenging to achieve in the national security field, where potential conflicts between state power and civil liberties are acute, suspicion rife and yet information tightly rationed…

Respected independent regulators continue to play a vital and distinguished role. But in an age where trust depends on verification rather than reputation, trust by proxy is not enough. Hence the importance of clear law, fair procedures, rights compliance and transparency.[28]

Items 1 and 2 amend subsection 6(1) of the INSLM Act to add the following reporting functions:

• Proposed paragraphs 6(1)(ba) and 6(1)(bb)—to report on the performance of existing INSLM functions to:
• review, on the INSLM’s initiative, the operation, effectiveness, and implications of Australia’s counter terrorism and national security legislation and certain other related legalisation (paragraph 6(1)(a) of the INSLM Act)
• consider, on the INSLM’s initiative, whether any of the legislation listed above:
• contains appropriate safeguards for protecting the rights of individuals
• remains proportionate to any threat of terrorism or threat to national security and
• remains necessary (paragraph 6(1)(b) of the INSLM Act)
• proposed paragraph 6(1)(ca)—to report on a matter investigated by the INSLM as a result of reference of a matter to the INSLM by the PJCIS.

Item 4 amends the terms of subsection 6(1A), which deals with matters referred to the INSLM by the PJCIS, to include the special reporting function in proposed paragraph 6(1)(ca).

Item 8 inserts proposed section 29A which permits the INSLM to prepare and give a special report to the Attorney-General.

Proposed subsection 29A(2) requires the INSLM to give the Attorney-General and the Prime Minister written notice of the intention to prepare a special report and reasons why that special report is required.

If the special report contains operational information, or other information that is or should be classified, proposed subsection 29A(3) requires a declassified special report to be prepared.

Time before special report presented to Parliament

The Attorney-General must present the special report or declassified special report to each House of Parliament within 15 sitting days after he or she receives the report.[29] This timing is the same as the existing timing for tabling other types of INSLM reports in the INSLM Act.[30]

Note that the period of 15 sitting days for each House could, at some points in the sitting calendar, amount to a period of up to 14 weeks before the report must be tabled. The House of Representatives does not permit government documents to be tabled out of session; however, Senate Standing Order 166 permits certain documents to be provided to the President of the Senate and published out of session.[31]

Changes to reporting requirements for statutory reviews

Subsections 6(1B) and (1C) of the INSLM Act require the INSLM to conduct reviews of certain legislation:

(1B)     The Independent National Security Legislation Monitor must, as soon as practicable after the third anniversary of the day the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 receives the Royal Assent, begin a review under paragraph (1)(a) of the following provisions of Chapter 5 of the Criminal Code:

1. Division 82 (sabotage);
2. Part 5.2 (espionage and related offences);
3. Part 5.6 (secrecy of information).

(1C)     The Independent National Security Legislation Monitor must complete the review under subparagraph (1)(a)(ia)[32] before the end of 5 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent.

The INSLM Act does not currently provide guidance for reporting on those statutory reviews.

Item 8 inserts proposed section 29B which provides that, when required to conduct a review under subsections 6(1B) or (1C) of the INSLM Act, the INSLM is to provide a statutory review report to the Attorney-General.

As for special reports, if the statutory review report contains information that is or should be classified, proposed subsection 29B(3) requires a declassified statutory review report to be prepared.

Time before statutory review report presented to Parliament

No time limits are imposed on the INSLM for presentation of a statutory review report to the Attorney-General.

However, the Attorney-General must present the statutory review report or declassified statutory review report to each House of Parliament within 15 sitting days after he or she receives the report.[33] Note the comment above about the practical effect of a 15 sitting day time limit.

Provision for the INSLM to be assisted by staff or contractors

Item 12 inserts proposed section 33 which permits certain Commonwealth officers to be assigned to assist the INSLM. While working for the INSLM, those staff are to be subject to the directions of the INSLM.

Item 12 also inserts proposed section 34 which permits the INSLM to engage contractors to assist in the performance of the INSLM’s functions or powers. Proposed subsection 34(3) provides that contractors are to be subject to the directions of the INSLM.

Proposed subsection 34(4) provides that the capacity to engage a contractor can be delegated to certain senior members of the INSLM’s staff.

Immunities for INSLM staff and contractors

The INSLM is currently given immunity from legal action for actions taken in the exercise of his or her functions and powers by section 31 of the INSLM Act.

Item 11 inserts proposed subsection 31(2) which expands immunity under section 31 to a person who is assisting or who has assisted the INSLM as staff of the INSLM or a contractor engaged by the INSLM.