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Independent
National Security Legislation Monitor Repeal Bill 2014
Portfolio: Prime Minister
Introduced: House
of Representatives, 19 March 2014 Summary of committee concerns
1.1
The committee seeks further information on the types of mechanisms and
measures that the government considers will provide continued coverage of the Independent
National Security Legislation Monitor's mandate of ensuring that Australia’s
counter-terrorism and national security legislation are compatible with human
rights.
1.2
The committee also seeks information about the stage at which the
government’s consideration of the recommendations made by the Monitor during
his period of appointment has reached, in particular those recommendations
relating to the human rights concerns identified by the Monitor. Overview
1.3
This bill seeks to repeal the Independent National Security
Legislation Monitor Act 2010 (the INSLM Act) and accordingly to abolish the
Office of the Independent National Security Legislation Monitor. Compatibility with human rights
Statement of compatibility
1.4
The bill is accompanied by a statement of compatibility which states
that the bill does not engage any human rights. The statement states that
'[t]he Monitor's role is not mandated by the relevant international human
rights obligations subject to scrutiny under the Human Rights (Parliamentary
Scrutiny) Act 2011'. Accordingly, '[t]he bill is compatible with human
rights as it does not raise any human rights issues'.
Committee view on compatibility
1.5
The INSLM Act was introduced in 2010 for the purpose of establishing a
Monitor to review the operation, effectiveness and implications of
counter-terrorism and national security legislation[1]
and to report his or her comments, findings and recommendations to the Prime
Minister, and in turn Parliament, on an annual basis.[2]
1.6
In doing so, the Monitor must, among other things, assist Ministers to
ensure that Australia’s counter-terrorism and national security legislation is
consistent with Australia’s international obligations, including human rights
obligations.[3]
According to the explanatory memorandum which accompanied the 2010 bill, these
include, for example, Australia’s obligations under the International Covenant
on Civil and Political Rights (ICCPR) and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.[4]
1.7
In particular, the Monitor’s functions require consideration of whether
counter-terrorism and national security legislation:
- contains appropriate safeguards for protecting the rights of
individuals;
-
remains proportionate to any threat of terrorism or threat to
national security or both; and
-
remains necessary.[5]
1.8
To date, the Monitor has provided three annual reports for the government’s
consideration. According to the explanatory memorandum accompanying this bill,
a fourth and final report from the Monitor is expected in April 2014.
Effective oversight
1.9
The committee notes that Australia’s counter-terrorism and national
security laws contain a range of coercive and invasive powers, including, for
example, Australian Security and Intelligence Organisation questioning warrants
and questioning and detention warrants, control orders, and preventative
detention orders.[6]
These laws have implications for a range of human rights, including: freedom
from arbitrary detention;[7]
the right to a fair trial (and the minimum guaranteed protections therein);[8]
the right to privacy;[9]
freedom of movement;[10]
freedom of expression;[11]
freedom of association;[12]
protection of the family, including children’s rights;[13]
and the right to equality and non-discrimination.[14]
1.10
These rights are not absolute and can be limited where the limitation
seeks to achieve a legitimate objective, where there is a rational connection
between the limitation and the objective, and where the limitation is
proportionate to that objective.
1.11
The committee considers that a key safeguard in ensuring that the
limitations placed on human rights by Australia’s counter-terrorism and
national security legislation are reasonable, necessary and proportionate to
achieving the legitimate objective of protecting Australia’s national security
is independent oversight of such laws, including a body with the mandate of
ensuring that such laws remain so.
1.12
This is supported by the UN Special Rapporteur on the Promotion and
Protection of Human Rights and Fundamental Freedoms While Countering Terrorism,
who has stated that an effective system of oversight must include at least one
civilian organization that is independent of both the intelligence services and
the executive.[15]
1.13
According to the statement of compatibility accompanying the bill:
Australia has a comprehensive range of standing and ad hoc
oversight and accountability measures already in place. These measures include
existing independent oversight bodies such as Parliamentary Committees, and
executive powers to appoint ad hoc reviews. Comprehensive oversight of relevant
counter-terrorism and national security legislation will remain despite this
repeal.
1.14
The committee intends to write to the Prime Minister to seek clarification
on the types of mechanisms and measures that the government considers will
continue to ensure that Australia’s counter-terrorism and national security
legislation contains appropriate safeguards, remains proportionate to any
threat of terrorism or threat to national security or both, and remains
necessary, in the absence of the Monitor.
Monitor’s recommendations past and future
1.15
As set out above, the Monitor has thus far released three reports, with
a fourth report to be released in April 2014. The first report set out a list of
issues for consideration over the three-year period for which the Monitor was
appointed.[16]
The Monitor also set out the approach he intended to take to his mandate. In
particular, the Monitor stated:
The ICCPR should be to the forefront of the INSLM’s task in
assessing the appropriateness of the CT Laws because it protects rights,
freedoms and immunities considered to have universal value, because it
pronounces that protection in specific terms, and because it recognizes and
requires civilized balances where individual freedoms and social aims may be in
tension.[17]
1.16
The Monitor’s second report focussed on reviewing ‘the extraordinary
powers contained in Australia’s CT Laws’ and ‘the definition of terrorism,
which in the CT Laws comprises the statutory meaning of “terrorist act”
stipulated in sec 100.1 of the Criminal Code Act 1995 (Cth)’.[18]
The Monitor made 21 recommendations. In summary, the Monitor concluded:
- control orders in their present form are not effective, not
appropriate and not necessary – but they may be effective, appropriate and
necessary if limited to persons already convicted of terrorist offences whose
dangerousness at the expiry of their sentences of imprisonment can be shown;
-
preventive detention orders are not effective, not appropriate and
not necessary and should be abolished;
-
questioning warrants are sufficiently effective to be
appropriate, and in a relevant sense necessary and could be made more readily
available than the current legislation provides – rejecting the criticism that
such warrants are an unjustified infringement of liberty;
-
questioning and detention warrants are an unnecessary extension
of questioning warrants and detention is appropriately comprehended within
provisions relating to questioning warrants; and
-
improvements to Australia’s definition of terrorism are needed.[19]
1.17
The Monitor’s third report covered the issues for consideration set out
in the Monitor’s first report but which were not considered in his second
report. The Monitor made 30 recommendations, relating to:
- enhancing powers in the Charter of the United Nations Act 1945;[20]
-
streamlining the system of listing, designation and prescription
of terrorist organisations with respect to existing terrorism financing
offences in the Criminal Code;
-
changes to the design of Criminal Code offences concerning
associating with terrorist organisations; and
-
changes to provisions relating to national security information
under the National Security Information (Criminal and Civil Proceedings) Act
2004.[21]
1.18
According to the explanatory memorandum accompanying the bill:
Together these four reports are expected to cover the
extensive list of key issues in Australian national security laws that the
Monitor indicated, in his first annual report, would be considered and reviewed
during his term. ... The Government considers the best way forward is to work
through the large number of recommendations made by the Monitor, and to
continue engaging with the extensive range of existing independent oversight
bodies, including the Inspector-General of Intelligence and Security,
Parliamentary Committees, and the Parliament itself.
1.19
The committee intends to write to the Prime Minister to request
that the Prime Minister provide the committee with information about the stage
at which the government’s consideration of the recommendations made by the
Monitor has reached, particularly those recommendations which were made on the
basis of concerns about the compatibility of existing measures with Australia’s
international human rights obligations.
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