Chapter 2
Key Issues
Overview of evidence
2.1
The committee received evidence from a variety of organisations that
generally welcomed the establishment of the Monitor. The majority of evidence
received included comments of support, which viewed the Monitor as an important
office for improving the operation of terrorism and national security
legislation. Typical of these was the following comment from the Gilbert +
Tobin Centre of Public Law:
We welcome the National Security Legislation Monitor Bill
2009 as an initiative to establish ongoing, holistic and independent review of
Australia's anti-terrorism laws.[1]
2.2
Another example comes from the Federation of Community Legal Centres
(Victoria):
The Federation welcomes in principle the proposal to
establish a National Security Legislation Monitor, a permanent mechanism for
independent review of counter-terrorism and national security legislation. The
counter-terrorism laws are extraordinary and it is imperative whilst they are
in place that they are subject to regular, comprehensive and independent
review.[2]
2.3
Some witnesses highlighted the increase in the amount of legislation
concerning terrorism and national security as a key reason for supporting the
establishment of the monitor. The International Commission of Jurists
(Australia) (ICJA) stated that:
At the outset the ICJA would first like to commend the
Australian Government on creating such [an] office. The role of the Monitor is
particularly important in light of the fact that over the past nine years there
has been a proliferation of legislative activity concerning terrorism and
national security.[3]
2.4
Notwithstanding the broad ranging support for the establishment of the
Monitor, the committee heard evidence on a range of issues including the
following items which are discussed below:
-
the independence of the Monitor;
-
the review referral mechanism;
-
the matters to which the Monitor must have regard when reviewing
legislation; and
-
the Monitor's reporting requirements.
2.5
Only one submission opposed the establishment of the Monitor. The New
South Wales Council for Civil Liberties stated that on balance '...the
introduction of a National Security Legislation Monitor is not the best means
of bringing the unsatisfactory legal situation that exists at present into a
more satisfactory position.'[4]
2.6
At the outset the committee would like to endorse the widespread support
for the bill. It also endorses the need to balance competing concerns which
were highlighted in Senator Wong's second reading speech:
The proposals in this Bill reflect the Government’s
commitment to ensure that Australia has strong counter-terrorism laws that
protect the security of Australians, while preserving the values and freedoms
that are part of the Australian way of life.[5]
Recommendation 1
2.7
The committee recommends that the Senate pass the bill subject to the
following recommendations.
Independence of the monitor
2.8
A consistent theme that ran throughout the inquiry was the need to
ensure the Monitor's independence. While being an issue in its own right, the question
of the Monitor's independence also underlies many related issues that are
discussed later in this report, for example the referral mechanism and
reporting requirements. The committee sees the notion of independence as
fundamentally important to the position of the National Security Legislation
Monitor. It will be an aspect of the Monitor's character that will heavily
influence the public perception and legitimacy of the position. As a
consequence, the committee has used this notion as a prism through which to
assess the various issues raised during the committee's inquiry.
2.9
Many submissions and witnesses argued that the independence of the
Monitor will directly affect the efficacy of his or her work. The committee
heard that various features of the bill, both individually and cumulatively, will
impact on the actual or perceived independence of the Monitor.
Title of the Monitor
2.10
Submitters and witnesses expressed concern that the title of the office
and of the bill did not include the word 'independent'. The Law Council noted
its disappointment that 'the term independent does not feature in the title of
the [Monitor] Bill or in the title of the Monitor itself' arguing that:
While many features of the [Monitor] underscore its
independent character, the Law Council is of the view that it is of symbolic importance
to include the term 'independent' in the title of the office.[6]
2.11
Similarly the AHRC recommended that the 'independent status of the
Monitor should also be reflected in the title of his or her office.'[7]
Committee view
2.12
The committee is of the view that the inclusion of the word
'independent' in the title of the office and in the title of the bill will
assist the public's understanding of the role of the Monitor as an independent
reviewer of national security legislation. This in turn will improve public
confidence in Australia's national security and terrorism laws.
Recommendation 2
2.13
The Committee recommends that the title of the bill be amended to:
'Independent National Security Legislation Monitor Bill 2009'
Recommendation 3
2.14
The Committee recommends that the bill be amended so that the Monitor be
referred to as the 'Independent National Security Legislation Monitor'.
Legal Status of the Monitor
2.15
The Monitor is appointed under clause 11 of the bill. Subclause 11(1)
reads as follows:
The National Security Legislation Monitor is to be appointed
by the Governor-General by written instrument, on a part-time basis.
2.16
Some submissions and witnesses expressed concerns that the bill did not
sufficiently define the legal status of the Monitor. For example, the Gilbert +
Tobin Centre of Public Law (Gilbert + Tobin Centre) argued that the bill did
not address the legal status of the Monitor or whether it constitutes an
independent statutory agency.[8]
The Law Council of Australia (the Law Council) also expressed these concerns
recommending that the bill be amended to include a specific provision outlining
whether the Monitor is to be an independent statutory agency.[9]
2.17
The Castan Centre for Human Rights Law (the Castan Centre) argued that
the departments and agencies examined as part of the Monitor's work may often
be part of the executive government and as a result:
Unless that statutory independence is established and made
unambiguous, there would be an inevitable tension, both a legal tension and a
practical operational tension, if the monitor were called upon to undertake a
review of the activities of those departments or agencies. So we think there
could be improvements in the wording of the bill to make that independence
clear.[10]
2.18
On a number of occasions the Government has sought to clarify the
independent status of the Monitor. For example when the Monitor was first
announced in December 2008, the Attorney-General, the Hon Robert McClelland MP
stated that:
The Government will establish a National Security Legislation
Monitor to review the practical operation of counter-terrorism legislation on
an annual basis. The Monitor will be an independent statutory office within
the Prime Minister’s portfolio and will report to Parliament.[11]
2.19
The bill's second reading speech refers to 'the establishment of an
independent reviewer of terrorism laws' and goes on to highlight the Monitor's
independent status:
...the role of the Monitor will be undertaken by one person
who will be expected to be independent from the current administration of the
counterterrorism legislation.[12]
2.20
In responding to questions about the statutory independence of the
Monitor, officers from the Department of the Prime Minister and Cabinet
(PM&C) told the committee that the monitor '...is an independent statutory
appointment within the Prime Minister's portfolio so the position itself does
not fall within the department.'[13]
Committee view
2.21
While noting the concerns of some submitters and witnesses, the
committee is satisfied that the bill provides sufficient statutory independence
for the Monitor. The committee notes in particular the evidence of PM&C
that the Monitor 'is an independent statutory appointment'. The committee also
notes that the proposed appointment and office location arrangements for the
Monitor are identical to those for the Commonwealth's independent Inspector‑General
of Intelligence and Security.[14]
Location of office, staffing and
resources
2.22
Submitters and witnesses expressed concern that if the staff and the
office of the Monitor were located within the PM&C, the independence of the
Monitor may be reduced. For example, the Public Interest Advocacy Centre (PIAC)
articulated these concerns stating:
...the Bill fails to specify whether the Monitor will be a new
independent office or part of an existing office of department...PIAC suggests
that the Monitor should be a new, independent office to ensure that the Monitor
is seen to be truly independent of government.[15]
2.23
During the public hearings, committee members questioned witnesses on
whether the location of the office within a government department may undermine
the independence of the Monitor. The Gilbert +Tobin Centre stated:
I am not suggesting that the office should not be located
within the Department of Prime Minister and Cabinet. Indeed, the Office of the
Inspector-General of Intelligence and Security is also located within a
government department and, indeed, that is necessary for administrative
purposes. All I am suggesting is that that particular factor combined with
other aspects of the legislation—things like the current reporting arrangements
in sections 29 and 30—could have the effect of undermining public confidence in
independence. If the office is going to be located within a government department,
as it necessarily must be, then steps must be taken to ensure that it is
balanced by clear indications of the independence of the office, for example,
in the reporting requirements.[16]
2.24
PM&C officials advised the committee that the staff in the office of
the Monitor would be employees of PM&C.[17]
2.25
The funding to establish the Monitor was announced in the 2009–10
Budget:
...the Government will provide $1.4 million over four years
to establish the National Security Legislation Monitor in the Department of the
Prime Minister and Cabinet, to review the operation of counter‑terrorism
and national security legislation.[18]
2.26
Several submissions and witnesses highlighted the level of resources
allocated to the Monitor as being key to his or her effectiveness. The Law Council
argued that ultimately 'the success of the Monitor is likely to be dependant
upon the individual appointee and the resources he or she has at his or her
disposal.'[19]
The Law Council also stressed in its evidence to the committee that 'the
monitor will require sufficient resources to be able to do this very important
job.'[20]
The Law Council compared the proposed resources of the Monitor, with the
resources available to the United Kingdom's Independent Reviewer of Terrorism
Laws, Lord Carlile:
The Law Council was fortunate to meet with [Lord Carlile] when
he visited Australia earlier this year. He certainly indicated that he thought
that at least three or four staff were necessary to fulfil his role. When you
look at the budget allocation for this office, it appears that that allocation would
be quite stretched to cover three or four staff as well as the part-time
monitor.[21]
2.27
Committee members questioned PM&C officers on the possible staffing
and resources for the Monitor. Officers told the committee that two new
positions would be created within PM&C to staff the Monitor's office, also
telling the committee that:
...we notionally have two people in our minds, but a lot of it
will depend on how the monitor, once appointed, chooses to work—whether, for
example, that is in short bursts with a heavy load for a couple of months in
each annual cycle plus a bit more as needed, or whether the monitor might
prefer to be doing a number of hours a week each week throughout the year.[22]
Committee view
2.28
The committee agrees with the Law Council that the success of the
Monitor is likely, in part, to be dependant on the resources that he or she has
at his or her disposal. However the committee is of the view that what is
considered to be sufficient resources will ultimately depend on a range of
factors including the quantity, timing and scope of reference. It is difficult
to predict these in advance of the establishment of the Monitor. The committee
considers that funding allocated in the 2009–10 Budget is sufficient for the
initial establishment of the office. However the committee would be concerned
if at some stage in the future the Monitor is unable to fulfil his or her
functions because of lack of resources. While the committee will continue to
assess funding for the Monitor through its Estimates and Annual Report
processes, it believes that ongoing consideration by the government is also
required.
Recommendation 4
2.29
The committee recommends that the Government actively and regularly
assess the adequacy of the resources and staff allocated to the Monitor's
office.
Appointment process
2.30
Subclause 11(2) outlines the process for the appointment of the Monitor:
Before a recommendation is made to the Governor-General for
the appointment of a person as the National Security Legislation Monitor, the
Prime Minister must consult with the Leader of the Opposition in the House of
Representatives.
2.31
An area of concern to submitters and witnesses was the proposed
appointment process for the Monitor. The bill states that the Monitor is to be
appointed by the Governor‑General following consultation between the
Prime Minister and the Leader of the Opposition. Submitters and witnesses
expressed concern that this process may undermine the independence of the
monitor. The International Commission of Jurists (Australia) (ICJA) articulated
these concerns stating that: 'If the purpose of the legislation is to have an
independent monitor then the monitor should be appointed by an independent
non-political body.'[23]
2.32
In their joint submission, the Public Interest Law Clearing House and
the Human Rights Law Resource Centre argued that:
...it is considered that a transparent, and publicly
accountable selection process, combined with comprehensively described
functions, would assist to avoid any perception of lack of independence.[24]
Committee View
2.33
The committee does not believe that a more detailed and lengthy
appointment process than prescribed in the bill would improve the independence
of the Monitor. The committee believes that the requirement for the Prime
Minister to consult with the Leader of the Opposition before making a
recommendation to the Governor-General is sufficient for ensuring the Monitor's
independence. The committee notes that this process is the same as that used to
appoint the Inspector‑General of Intelligence and Security.
Qualifications of the Monitor
2.34
The issue of the Monitor's qualifications was also raised during the
inquiry. Subclause 11(3) requires that a person must not be appointed as the
Monitor unless in the Governor-General's opinion, the person is suitable for
appointment because of the person's qualifications, training or experience.
2.35
The Australian Muslim Civil Rights Advocacy Network (AMCRAN) stated that
it 'is of the firm view that this requirement does not meet the complexities of
the role' arguing that the Monitor needs to 'have extensive legal background.'[25]
2.36
The committee questioned witnesses on whether the Monitor should be
required to have a legal background. The Law Council responded:
Not necessarily. I think in the way the bill is drafted is
that the person or persons who are selected, if there is an amendment to the bill,
have to have suitable qualifications and experience. Obviously, a legal
background would be an advantage in reviewing legislation and how it has been
operating, but we would not necessarily see that that would be an absolute
requirement. It would be up to the Prime Minister, in consultation with the
Leader of the Opposition, to select a person or persons with suitable
qualifications.[26]
2.37
Officers from the Attorney-General's Department (AGD) told the committee
that while legal qualifications would be taken into account 'it is the
character and the experience of the person that are very important, not just
the qualifications'.[27]
Officers from PM&C supported this proposition, telling the committee that:
I think that, clearly, relevant parts of the legal profession
are going to be an obvious picking ground. A legal background will help. My
only concern would be that, if you locked in that they had to have legal
qualifications, you would potentially rule out someone who might be very well
qualified to do it. You might not get the best candidate, just because they do
not have legal qualifications.[28]
Committee view
2.38
The committee considers that prescribing minimum qualifications for the
monitor is overly prescriptive and may exclude members of the community who
would be well qualified to fulfil the role of monitor.
Referral mechanism
2.39
Many submissions raised the issue of how reviews by the Monitor will be
initiated. In particular, a number of submitters and witnesses expressed
concern that the Monitor's power to initiate his or her own inquiries was not
clear. Others suggested that parties other than the Prime Minister or the
Monitor should have the power to refer matters for report.
The Monitor's power to self-initiate
inquiries
2.40
Clause 6 establishes the functions of the Monitor, part of which reads:
6 Functions of the National Security Legislation Monitor
-
The National Security Legislation Monitor has the following functions:
-
to review the operation, effectiveness and implications of:
-
Australia’s counter‑terrorism
and national security legislation; and
-
any other law of the
Commonwealth to the extent that it relates to Australia’s counter‑terrorism
and national security legislation;
-
to consider whether Australia’s
counter‑terrorism and national security legislation:
-
contains appropriate
safeguards for protecting the rights of individuals; and
-
remains necessary;
-
if a matter relating to counter‑terrorism
or national security is referred to the Monitor by the Prime Minister—to report
on the reference.
2.41
Subclause 6(3) goes on to provide the Monitor with broad powers to do
'all things necessary or convenient to be done for or in connection with the
performance of the Monitor's functions.'
2.42
Clause 7 then deals with the Prime Minister's powers to refer matters to
the Monitor, including the power to refer matters on his or her own initiative
or at the suggestion of the Monitor, to alter the terms of a reference and to
give directions about the order in which the Monitor is to deal with
references.
2.43
Several submitters noted that there are indications in the bill's
supporting material that the Monitor has the power to self‑refer matters.
The Explanatory Memorandum states:
...the Monitor will be able to initiate his or her own
reviews. It also provides scope for the Prime Minister to refer matters
relating to counter-terrorism or national security to the Monitor to report on
to the Prime Minister.[29]
2.44
When introducing the bill, Senator the Hon Penny Wong repeated that 'the
Monitor may initiate his or her own investigations'.[30]
2.45
Despite these indications of the ability of the Monitor to self refer
matters, the committee received evidence from numerous sources that the bill
does not clearly specify who has the power to determine what matters will be
referred to the Monitor for report.
2.46
A number of submissions have noted the contrast between the explicit
references in the bill to the Prime Minister's powers of reference in paragraph
6(1)(c) and clause 7, and the lack of specific reference to the Monitor's
powers in the same regard. Indeed, some submissions and witnesses suggested
that the only matters which can be investigated by the Monitor are those
matters referred by the Prime Minister.
2.47
The Law Council of Australia expressed this concern in their submission:
...that the [Monitor] may not have a clear power to initiate and
report on his or her own inquiries. While the [Explanatory Memorandum] suggest [the
Monitor] has power to initiate his or her own investigations, the language of
the Bill itself does not make this clear. For example, clause 7 provides that
the [Monitor] can suggest that the Prime Minster refer a matter for inquiry,
but it does not empower the [Monitor] to initiate its own reference. Even if the
functions contained in clause 6 are interpreted in a manner broad enough to
empower the [Monitor] to initiate his or her own investigations, the only place
the [Monitor] could report on such investigations would be in his or her Annual
Report, which may be prepared up to six months after the period of review. The
Law Council submits that it is essential to the independent character of the [Monitor]
that he or she be clearly invested with the power to initiate his or her own
inquiries and to report on any findings in a timely manner.[31]
2.48
The Gilbert + Tobin Centre of Public Law sought to have this issue
addressed via an amendment to the bill:
We are concerned that there is no explicit mention in section
6 of the Monitor’s power to conduct inquiries upon his/her own initiative
(beyond the obligation to lodge an annual report in section 29). At times, the
Independent Reviewer in the United Kingdom has produced reports on his own
volition and the Monitor should certainly possess a similar capacity.
It is possible that this power is implicit in section 6(1),
especially given the statement in the Second Reading speech that ‘[t]he Monitor
may initiate his or her own investigations’. However, rather than leaving it to
implication, this power should be expressly set out in the National Security
Legislation Monitor Bill 2009.[32]
2.49
Similar concerns about the ability of the Monitor to commence reviews on
his or her own initiative were expressed by the Public Interest Law Clearing
House and Human Rights Law Research Centre, Civil Liberties Australia and the
Federation of Community Legal Centres (Victoria).[33]
2.50
Mr Jonathan Hunyor, Director, Legal Section, Australian Human Rights
Commission, accepted that the ability of the Monitor to initiate his or her own
inquiries 'possibly falls within section 6(1) as we read it, but we agree that
that is something that could and should be clarified'.[34]
2.51
Mr Garry Fleming Assistant Secretary, Border Protection and Law
Enforcement Branch, Department of the Prime Minister and Cabinet advised that
the Monitor's power to investigate matters on his or her own initiative is
implicit in subclause 6(3):
Within the core functions of the monitor, as expressed in
clause 6 of the bill—reviewing the ‘operation, effectiveness and implications’
of the specific legislation and any other relevant law, and to ‘consider’ that legislation—under
subclause (3) the monitor ‘has the power to do all things necessary or convenient’
for discharging that role. So, within that core role, he or she will not need a
referral and can investigate anything on his or her own motion...[35]
Committee view
2.52
It is quite clear from the Explanatory Memorandum, the Minister's second
reading speech and evidence provided by officials, that the Government's
intention is to allow the Monitor to undertake inquiries on his or her own
initiative, and not solely at the instigation of the Prime Minister. The
committee supports this intent.
2.53
Based on the number of times this matter was drawn to the committee's
attention, the committee accepts the bill does not express this intention as
clearly as it might. The committee further notes that the Inspector-General
of Intelligence and Security Act 1986 specifically allows the
Inspector-General of Intelligence and Security to undertake many of its inquiry
functions on 'the Inspector-General's own motion'.[36]
2.54
The committee sees no reason why the stated policy intent cannot be more
clearly expressed in the bill.
2.55
The committee is of the view that clarifying the bill in this manner
will enhance the perceived and actual independence of the Monitor.
Recommendation 5
2.56
The committee recommends that clause 6 of the bill be amended to state
clearly that the National Security Legislation Monitor has the power to conduct
inquiries on his/her own initiative on subjects which are within the functions
of the Monitor.
Referrals by third parties
2.57
Several submissions and witnesses proposed that, in addition to the
Prime Minister, other external parties should have the ability to refer
matters to the Monitor for review and report. These suggestions were put
forward to counter the perception that the Monitor's independence would be
constrained by the referral mechanism only allowing references from the Prime
Minister.
2.58
The Law Council of Australia argued that providing other parties with
the ability to refer matters to the Monitor is necessary because the current
situation 'invests the Executive Government with considerable control over the activities
of the [Monitor]'.[37]
2.59
A suggestion shared by several submitters was to give the Parliamentary
Joint Committee on Intelligence and Security (PCJIS) the ability to refer
matters to the Monitor. This is currently provided for in the Independent
Reviewer of Terrorism Laws Bill 2008 [No. 2], paragraph 8(1)(b).
2.60
The Law Council of Australia strongly endorsed giving the PCJIS the ability
to refer matters to the Monitor:
The PJCIS plays an important oversight role in respect of a
number of key agencies responsible for implementing Australia‘s anti-terrorism
laws, such as the Australian Security Intelligence Organisation, the Australian
Secret Intelligence Service and the Department of Defence and has a specific
review role in respect of key pieces of Australia‘s anti-terrorism legislation,
such as the Security Legislation Amendment (Terrorism) Act 2002. Through
its work, the PJCIS is well placed to identify any shortcomings or
inefficiencies in the content and operation of Australia‘s anti-terrorism measures
and to identify appropriate matters to refer to the [Monitor] for review. In
addition, the bipartisan, bicameral nature of the PJCIS would further enhance
the independent character of the work undertaken by the [Monitor].[38]
2.61
The Gilbert + Tobin Centre of Public Law and the Public Interest
Advocacy Centre also supported vesting the power to refer matters in the PJCIS.[39]
2.62
The International Commission of Jurists Australia (ICJA) proposed the
inclusion of state and territory attorneys-general in the referral process:
The ICJA submits that the Committee might want to consider
widening the referral process to include relevant governmental organizations
and persons, particularly those persons with whom the Monitor will be able to
liaise (as per section 10). The ICJA submits that a broader referral process
will ensure that all counter-terrorism and national security legislation and
Commonwealth criminal legislation is considered rather than just those chosen
by the Prime Minister or the Monitor himself or herself. The Committee may thus
want to consider the inclusion of State and Territory Attorneys General in the
referral process.[40]
2.63
Civil Liberties Australia (CLA) proposed an extensive list of
organisations and persons that should have the ability to refer matters to the
Monitor:
In CLA's
opinion, references to the Monitor should be entitled to come from the
Prime Minister, the Leader of the Opposition, the President of the Senate or
the Speaker of the House of Representatives, as well as being able to be
launched by an “own motion” process by the Monitor, without requiring the
approval of a Prime Minister. Without at least the Leader of the Opposition
involved, this legislation has a distinct party political sheen to it,
whichever party is currently dominant: no party should have exclusive control –
even temporarily – in such an important area of law.[41]
2.64
The Australian Muslim Civil Rights Advocacy Network (AMCRAN) suggested
extending this ability to members of the community:
AMCRAN submits that it would be both effective and pragmatic
to provide a legislative mechanism to allow concerned individuals or groups
with standing to be able to trigger review action by the Independent Reviewer.[42]
2.65
Officials from the Department of the Prime Minister and Cabinet pointed
out that there is nothing to prevent a person or organisation suggesting a
matter to the Monitor for investigation which falls within the core functions
set out in clause 6.[43]
However, there would appear to be no statutory requirement for the Monitor to
act on such suggestions.
2.66
The committee notes that there is a risk that the references received by
the Monitor could exceed its capacity to undertake effective reviews if those
able to refer matters to the Monitor are not responsible for the allocation of
resources. This risk was highlighted by Mr Geoffrey McDonald, First Assistant
Secretary, National Security Law and Policy Division, Attorney-General's
Department:
My initial thought about the problem with [third party
referrals] is that someone has to take responsibility for the resources that
are available to the monitor, so it is important that one portfolio control
that flow. In that way that portfolio can ensure that the monitor is given
proper support.[44]
Committee view
2.67
The committee is of the view that a slight broadening in the referral
mechanism is warranted in order to improve the independent nature of the
Monitor. As drafted, the bill will only allow referrals from one side of
politics.[45]
This limitation may create the perception that the government of the day has
control of the Monitor's activities.
2.68
The committee's preferred approach is that the bill should be amended to
enable the PJCIS to refer matters relating to counter-terrorism or national
security legislation to the Monitor. The PJCIS is a parliamentary committee
comprised of both sides of politics. Over many years it has provided valuable
input into the national security debate in Australia, including many sound
recommendations to the government on national security laws.[46]
As the committee noted earlier, referrals by the PJCIS are provided for under
the Independent Reviewer of Terrorism Laws Bill 2008 [No. 2], a bill which was
unanimously supported by the Legal and Constitutional Affairs Committee.[47]
The committee agrees with the Law Council of Australia that 'the bipartisan,
bicameral nature of the PJCIS would further enhance the independent character
of the work undertaken by the [Monitor]'.
2.69
It is acknowledged that this approach has the potential to increase the
work load of the Monitor. However, in the committee's view the benefits of
bolstering the independence of the Monitor outweigh the minor resourcing
constraints that may flow from a slight expansion of the referral mechanism.
The committee also notes that in the context of the government's overall
expenditure on national security activities, the outlay to establish and
operate the Monitor will be modest.[48]
So even a moderate increase in the cost of operating the Monitor will have a
negligible impact on Australia's overall national security budget.
Recommendation 6
2.70
The committee recommends that the bill be amended to enable the
Parliamentary Joint Committee on Intelligence and Security to refer matters
relating to Australia's counter-terrorism and national security legislation to
the National Security Legislation Monitor for review and report.
2.71
If this recommendation is adopted, consideration will need to be given
to the reporting arrangements. Clearly the report would need to be provided to
the PJCIS and preferably to the Prime Minister also.
Scope of reviews
2.72
The committee heard evidence relating to the scope of reviews undertaken
by the Monitor. These included concerns relating to the laws which are subject
to review, and whether the Monitor should have the function of examining
proposed laws, and who the Monitor can consult in undertaking reviews.
Laws subject to review
2.73
Paragraph 6(1)(a) gives the Monitor the function of reviewing the
operation, effectiveness and implications of Australia's counter-terrorism and
national security legislation, and of any other law of the Commonwealth which
relates to that legislation.
2.74
Counter-terrorism and national security legislation are defined in
clause 4 as the following provisions of Commonwealth law:
-
Division 3 of Part III of the
Australian Security Intelligence Organisation Act 1979 and any other provision
of that Act as far as it relates to that Division;
-
Part 4 of the Charter of the
United Nations Act 1945 and any other provision of that Act as far as it
relates to that Part;
-
the following provisions of the
Crimes Act 1914:
-
Division 3A of Part IAA and any
other provision of that Act as far as it relates to that Division;
-
sections 15AA and 19AG and any
other provision of that Act as far as it relates to those sections;
-
Part IC, to the extent that the
provisions of that Part relate to the investigation of terrorism offences
(within the meaning of that Act), and any other provision of that Act as far as
it relates to that Part;
-
Chapter 5 of the Criminal Code and
any other provision of that Act as far as it relates to that Chapter;
-
Part IIIAAA of the Defence Act
1903 and any other provision of that Act as far as it relates to that Part;
-
the National Security Information
(Criminal and Civil Proceedings) Act 2004.
2.75
This definition is essentially broadened by subparagraph 6(1)(a)(ii)
which allows the Monitor to review 'any other law of the Commonwealth to the
extent that it relates to' the above list.
2.76
By comparison, paragraph 6(1)(b), which requires the Monitor to consider
whether Australia's counter-terrorism and national security legislation
contains appropriate safeguards for protecting the rights of individuals and
remains necessary, appears narrower as it does not include the 'any other law'
phrase.
2.77
Some submissions discussed whether the prescribed list of
'counter-terrorism and national security legislation' is adequate. The Gilbert
+ Tobin Centre for Public Law for example argued that the bill to 'some extent'
rectifies the concern expressed by the Senate Standing Committee on Legal and
Constitutional Affairs that the Independent Reviewer of Terrorism Laws Bill
2008 [No. 2], as introduced, lacked detail about which laws were subject to
review. They noted the detailed definition in clause 4, and further note that
paragraph 6(1)(a) should 'allay concerns' in this regard.[49]
2.78
The Law Council of Australia was 'pleased to see' the legislative
provisions in clause 4:
...which comprise the most significant legislative provisions
dealing with the investigation and prosecution of terrorist activity and
include provisions previously not subject to independent review.[50]
2.79
The Castan Centre for Human Rights Law noted that the list of relevant legislation
is 'less extensive' than that proposed in the Independent Reviewer of Terrorism
Laws Bill 2008 [No. 2] as amended by the Senate. Whilst noting the 'catch‑all'
provision of subparagraph 6(1)(a)(ii), they argue its use could be limited:
Thus, for example, where clause 6(1)(b) directs the Monitor
to consider the necessity of legislation, and the adequacy of the safeguards it
contains, various pieces of legislation appear to be excluded which ought not
to be, such as certain powers enjoyed by the Australian Federal Police pursuant
to the Australian Federal Police Act 1979 (Cth) which are enlivened by
reference to the offences created by Division 101 of the Criminal Code (Cth).[51]
2.80
The Castan Centre proposes that the list in clause 4 should be expanded
(particularly to include Division 72 of the Criminal Code) and that a
catch all provision should be added to the definition in clause 4.[52]
2.81
The Public Interest Law Clearing House and Human Rights Law Resource
Centre also expressed concerns that the scope of clause 4 and subparagraph
6(1)(a)(ii) 'may not cover laws that do not relate to Australia's
counter-terrorism and national security legislation but nevertheless impact on
Australia's approach to counter-terrorism or the human rights of Australian
citizens'.[53]
2.82
One submission raised the possibility of increasing the scope of the
Monitor to include review of state and territory laws:
PIAC strongly submits that if the Monitor is to fulfil his
functions of providing thorough reports of existing national security legislation
he/she should be in a position to consider the entirety of the national
security regime in Australia. PIAC is not convinced that clause 8(b) of the
Bill, which provides that the Monitor may have regard to arrangements between
the Commonwealth, the States and the Territories will enable the Monitor to do
so. PIAC therefore recommends that the Bill be amended to enable the Monitor to
consider all levels of the national security system.
Alternatively, PIAC recommends that the Commonwealth
government should negotiate with the States and territories so that they enact
similar legislation to ensure that there are equivalent independent reviewers operating
in each state and territory.[54]
2.83
The committee notes that paragraph 8(b) requires the Monitor to have regard
to arrangements agreed from time to time between the Commonwealth, states and
territories to ensure a national approach to countering terrorism.
Committee view
2.84
Various submissions appear to have identified a minor oversight in legislative
drafting on this issue. Due to the absence of the 'any other law' phrase in
paragraph 6(1)(b) the bill appears to allow the Monitor to review the
'operation, effectiveness and implications' of 'any other law of the
Commonwealth to the extent that it relates to Australia's counter-terrorism and
national security legislation'[55]
but not to consider whether such 'other' legislation 'contains appropriate
safeguards for protecting the rights of individuals'[56]
and 'remains necessary'.[57]
This would be a curious and perhaps unintended outcome. The committee makes a
recommendation (Recommendation 7) on this subject at the end of the following
section.
Review of relevant State legislation
2.85
Some submitters argued that the Monitor should have the authority to
examine state and territory national security and terrorism legislation. For
example PIAC argued that:
The national security legislation expressly covered by the
Bill is only a part of the existing raft of anti-terrorism legislation in force
in Australia at the moment as all the states and territories have enacted their
own counterterrorism legislation. PIAC strongly submits that if the Monitor is
to fulfil his functions of providing thorough reports of existing national
security legislation he/she should be in a position to consider the entirety of
the national security regime in Australia.[58]
2.86
The Law Council highlighted existing arrangements between the
Commonwealth and State and Territory governments arguing that there 'may
potentially be a conflict between the arrangements made between the
Commonwealth, States and Territories in respect to counter-terrorism and
Australia's international obligations in this area.' In this regard the Law
Council suggested that:
In the event of any conflict between Australia‘s
international obligations and arrangements agreed to between the Commonwealth,
States and Territories, the [Monitor] should be required to give priority to
Australia‘s international human rights obligations when evaluating the content,
effectiveness and operation of the particular provision in question.[59]
Committee view
2.87
The committee agrees that in order to effectively review Australia's
counter terrorism and national security legislation, the Monitor will need to
take into consideration the implications of any relevant law enacted by the
States and Territories.
Recommendation 7
2.88
The committee recommends that paragraph 6(1)(b) of the National Security
Legislation Monitor Bill 2009 be amended to include reference to 'any other law
of the Commonwealth, the States or the Territories to the extent that it
relates to Australia's counter-terrorism and national security legislation'.
Proposed legislation
2.89
Some submissions argued the Monitor should have the power to review
proposed as well as existing legislation:
The Law Council would also support broadening the mandate and
functions of the [Monitor] beyond the consideration of existing legislation to
include a review role in respect of proposed or draft legislative provisions
relating counter-terrorism or national security. In the past, when proposed
changes to Australia‘s counter-terrorism measures have been introduced they
have often proceeded quickly through Parliament with little opportunity for robust
scrutiny of their content and operation. Investing the [Monitor] with the power
to review proposed additions or changes to Australia‘s anti-terrorism laws
would enhance existing Parliamentary scrutiny mechanisms and help ensure that
such proposed provisions are necessary and effective in countering terrorism,
contain appropriate safeguards for protecting the rights of individuals and
comply with Australia's international obligations, including our international
human rights obligations. This function could be added by amending subclause
6(1)(a) to include a reference to 'proposed additions or changes to any
Commonwealth law to the extent that it relates to Australia‘s counterterrorism and
national security legislation'.[60]
We submit that the Monitor’s role should include active
involvement in any proposals of new legislation, including contributing to and
participating in relevant Senate Inquiries.[61]
2.90
Similar views were expressed the Sydney Centre for International Law and
the Public Interest Advisory Centre.[62]
2.91
The Department of the Prime Minister and Cabinet; and the Attorney‑General's
Department have clarified that the Monitor does have the power to investigate
proposed legislation or policy proposals (including the current National
Security Legislation discussion paper), but only when such proposals are
referred to him or her by the Prime Minister.[63]
2.92
There is a risk that asking the Monitor to examine matters which are
before the Parliament could compromise the Monitor's perceived independence,
through potential endorsement of government policy. Associate Professor Andrew
Lynch, Centre Director, Gilbert + Tobin Centre of Public Law, discussed the
shortcomings of asking the Monitor to examine proposed laws:
...it does have the risk that the body might become an approval
mechanism, whereas really the parliament must decide whether those changes to
the laws are to be passed. We see the reviewer as having very much a review
rather than a preview role in reporting to the government and to the parliament
how those laws, once made, are actually operating in effect. Again, that
concern is borne out by the approach taken by Lord Carlile in the UK on some
issues, which was to indicate his support for proposed changes. That, in
particular, was the incident which led to some concerns being expressed that
part of his job was to sell the government’s policy on antiterrorism laws. So
we think that the review function should be confined to exactly just that.[64]
Committee view
2.93
The committee concurs with the views of the Gilbert + Tobin Centre on
this issue. It is true that the Monitor may have valuable insights into
proposed national security amendments. However, if publicising those views puts
at risk the Monitor's independent status, then this will ultimately detract
from the Monitor's broader objective as an independent reviewer of security
legislation.
2.94
The committee notes that the Monitor won't be able to self-refer
proposed legislation but that he or she may provide input if the matter is
referred by the Prime Minister.
Complaints and operational matters
2.95
There appeared to be a degree of uncertainty among some witnesses about
the role of the Monitor in investigating the activities of agencies.
2.96
Subclause 6(2) states that the Monitor is not responsible for
considering individual complaints about the activities of Commonwealth agencies
responsible for implementing counter-terrorism or national security
legislation, or the resourcing and priorities of those agencies.
2.97
The Explanatory Memorandum explains that these exclusions are to
'provide greater clarity to the role and functions of the Monitor and to ensure
no overlap with other oversight and accountability agencies such as the
Inspector-General of Intelligence and Security and the Commonwealth Ombudsman.'[65]
2.98
The Attorney-General's Department explained that the focus of the
Monitor is on the operation and effectiveness of national security legislation.
The activities of agencies would be relevant only to the extent that these
indicated problems in the legislation:
Let us say the allegation was that Islamic people were being
targeted unfairly. If the allegation was that they were being targeted unfairly
because of procedures in the legislation—as a result of the way the legislation
is drafted—then that would be a legitimate matter for the legislation monitor
to consider. If, on the other hand, it was felt they were being targeted
unfairly because there was some horrible policeman who was racist, or something
like that, then that would be more appropriately dealt with by the Ombudsman
and Inspector-General of Intelligence and Security functions. That is the sort
of delineation. Those accountability mechanisms have been operating for some
time and have worked very well.[66]
2.99
Some submissions and witnesses argued that the Monitor's powers in
relation to investigating how the laws are administered are not clear. For example,
the New South Wales Council for Civil Liberties argued:
The significance of a law is to be seen not merely in bare
text, but in how that text is interpreted by those who apply it. In particular,
a law’s reach may be significantly extended or diminished by the interpretation
which is placed on its terms. It is not entirely clear that the monitor’s
functions, as proposed, cover this.[67]
2.100
The Castan Centre for Human Rights Law suggested that there is 'a degree
of tension' between the bill's requirement for the Monitor to give emphasis to
laws which have recently been applied by agencies (clause 9) and its
prohibition on the Monitor reviewing the priorities and resources of agencies
(paragraph 6(2)(a)). The Castan Centre suggested that paragraph 6(2)(a) be deleted
and replaced with a provision 'making it clear that the Monitor's review
function extends to the activities of agencies,'[68]
to remove this ambiguity.
2.101
Some submissions and witnesses advocated a stronger role for the Monitor
in dealing with complaints by individuals and oversight of operational matters.
Civil Liberties Australia argued:
It is hard to comprehend why such functions of the agencies
are not the responsibility of the Monitor. Being able to review agency
priorities in enforcing their own legislation, and what lies behind the
selective decision‑making, is crucial to effective functioning of the
laws and should be in the province of the Monitor. In addition, the Monitor
should be empowered to consider individual complaints about the activities of
the agencies, which may well point to systemic problems in legislation and how
it operates in practice.[69]
2.102
The New South Wales Council for Civil Liberties proposed that the
Monitor should have the ability to determine whether anti-terrorism legislation
was being used for other purposes.[70]
Committee view
2.103
The committee is of the view that if the Monitor were to become involved
in individual complaints or cases, which can be the subject of much public
scrutiny and political debate, then that would potentially compromise his or
her independence or perceived independence.
2.104
The committee is also of the view that individual complaints are best
dealt with by existing accountability and oversight mechanisms (such as the
Commonwealth Ombudsman or the Inspector‑General of Intelligence and
Security). The Monitor's role ought to focus on whether or not the laws are
necessary and contain appropriate safeguards, rather than considering the
outcome of a particular case. The committee therefore accepts that such matters
should be specifically excluded by the bill.
2.105
However, while the committee does not consider it appropriate for the
Monitor to investigate and make judgments on individual cases, clearly the
Monitor must be able to examine the way in which the legislation is being
administered, to the extent necessary to determine whether that legislation is
meeting its original purpose. The committee therefore recommends that the bill
be amended to require the monitor to assess whether the legislation is being
used as intended.
Recommendation 8
2.106
The committee recommends that the bill be amended to require the Monitor
to assess whether counter-terrorism and national security legislation is being
used as intended.
Consultation with other agencies
2.107
The Office of the Privacy Commissioner sought greater clarity about the
way in which the Monitor will consult other agencies. However, it sought this
clarification in the Explanatory Memorandum rather than in the bill itself:
In the Office’s opinion the Explanatory Memorandum could
provide some further detail in relation to the Monitor’s functions under clause
10 (2), by explaining that it would be expected that the Monitor would consult
and take account of the views of oversight and accountability agencies on matters
relevant to their particular jurisdiction. For example, the Monitor could be
expected to consult with the Privacy Commissioner on matters that may
significantly affect the handling of individuals’ personal information or other
aspects of personal privacy.[71]
2.108
The Australian Human Rights Commission (AHRC) suggested that the bill
could be strengthened by including the AHRC in subclause 10(2) as an agency
which may be consulted.[72]
This was supported by the Castan Centre for Human Rights Law.[73]
2.109
Perhaps the simplest suggestion in relation to clause 10 of the bill
came from Civil Liberties Australia:
To extend the ability of the Monitor to engage in community
consultation, or to consult as widely as he or she likes, CLA recommends the
addition of (2) (e) any other person or organisation.[74]
Committee view
2.110
The committee notes that the bill already provides the Monitor with the
power 'to do all things necessary or convenient to be done for or in connection
with the performance of the Monitor's functions'.[75]
However, the committee is of the view that unless there is a sound reason for
not allowing the monitor to consult with key independent agencies, including
the Office of the Privacy Commissioner and the Australian Human Rights
Commission, that these sorts of organisations should be added to clause 10.
Recommendation 9
2.111
The committee recommends that the bill be amended to allow the Monitor
when performing his or her functions, to consult with independent statutory
agencies such as the Office of the Privacy Commissioner and the Australian
Human Rights Commission, as the Monitor considers necessary.
Review criteria
2.112
Several submissions and witnesses discussed the criteria which the
Monitor should use in reviewing national security legislation.
2.113
Clause 3 states that the Monitor is appointed to assist Ministers in
ensuring that Australia's counter-terrorism and national security legislation:
-
is effective in deterring and
preventing terrorism and terrorism‑related activity which threatens
Australia’s security; and
-
is effective in responding to
terrorism and terrorism‑related activity;
-
is consistent with Australia’s
international obligations, including human rights obligations; and
-
contains appropriate safeguards
for protecting the rights of individuals.
2.114
The bill provides the functions of the Monitor are to:
-
review the 'operation, effectiveness and implications' of
legislation (paragraph 6(1)(a));
-
consider whether the legislation 'contains appropriate safeguards
for protecting the rights of individuals' (subparagraph 6(1)(b)(i));
-
consider whether the legislation remains necessary
(subparagraph 6(1)(b)(ii));
2.115
The bill also requires the Monitor to 'have regard to' Australia's
obligations under international agreements (subclause 8(a)).
2.116
The committee heard a number of views concerning whether the criteria
the Monitor will use to review legislation are adequately stated in the bill:
No priorities among these criteria are suggested. Nor is it
clear why some are mentioned multiple times and others only once.[76]
In our view section 8 of the amended Independent Reviewer of
Terrorism Laws Bill 2008, provides a much clearer outline of the mandate of the
Reviewer. This section provides an unambiguous mandate to assess both the
legislation and its operation in terms of not only human rights, privacy and
other international obligations but also to assess any adverse social
consequences. In our view this section should be adopted for the Monitor.[77]
2.117
Other submissions expressed a view that the Monitor should make use of
an expanded set of criteria when reviewing legislation:
PILCH and the HRLRC consider that the Monitor should be
required to have regard to a non-exhaustive list of relevant considerations
when determining review priorities, including but not limited to:
- Australia's human rights
obligations
- the extent to which the laws under
review alter fundamental legal principles;
- whether the relevant laws are
effective and workable, both within their own terms, and in combination with
other legislation; and
- whether there are any less-restrictive
means by which the objectives of the relevant legislation could be achieved.[78]
2.118
Areas of particular focus in submissions were whether the bill contains
adequate consideration of the impact of anti-terrorism laws on human rights and
the rights of individuals, whether the Monitor has sufficient scope to consider
whether the laws adequately adopt Australia's international obligations, and
whether the Monitor has sufficient power to consider the proportionality of
legislation.
Rights of Individuals
2.119
A number of submissions discussed the extent to which the bill requires
the Monitor to be mindful of human rights issues.
2.120
The Sydney Centre for International Law argued the bill does not
adequately address human rights standards. They propose that, in the absence of
an Australian bill of rights, this could be resolved by making more direct
reference to the International Covenant on Civil and Political Rights (ICCPR):
Terrorism laws have the very real potential to negatively
impinge on fundamental human rights. Special provision for review based on
human rights is important since terrorism laws can lack effective review mechanisms,
and also human rights challenges cannot be raised directly in the courts given
the absence of a federal Bill of Rights. Mandating compliance with Australia’s obligations
under the ICCPR will enhance the legitimacy of the government’s antiterrorism legislation,
both within Australia and abroad.[79]
2.121
Whilst noting that safeguards for human rights may fall into subclause
6(1) (rights of individuals) and clause 8 (international standards), the Law
Council of Australia stated:
...neither clause 6 nor clause 8 makes specific reference to
human rights principles. The Law Council is of the view that specifying these
particular matters in clause 6 would provide a concerted focus on the impact of
Australia‘s anti-terrorism laws on the rights of individuals and help ensure that
Australian laws in this area meet international human rights standards.[80]
2.122
This view was shared by the Public Interest Law Clearing House (PILCH)
and Human Rights Law Research Centre (HRLRC):
...PILCH and the HRLRC are concerned that clause 6 does not
require the Monitor review the impact of Australia's counter-terrorism and
national security legislation on international human rights standards and
obligations. Although this role of the Monitor is perhaps implicit in given the
objects of the Bill, an express provision would avoid any ambiguity.
Accordingly, PILCH and the HRLRC submit that clause 6 should be amended to expressly
require the Monitor to review the impact of Australia's counter-terrorism and
national security legislation on international human rights standards and
obligations.[81]
2.123
The Explanatory Memorandum notes in relation to the requirement in
clause 8 for the Monitor to have regard to Australia's international
obligations, that the Monitor:
...must have regard to Australia’s human rights obligations
such as the International Convention on Civil and Political Rights and the
Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment. In addition, the Monitor must also have regard to international
instruments that Australia has become a party to which require Australia to
enact a strong counter-terrorism framework such as the 16 United Nations counter-terrorism
conventions and protocols and the United Nations Security Council Resolutions
1267 and 1373 concerning the freezing of assets of terrorists.[82]
2.124
Ensuring that counter-terrorism and national security legislation is
'consistent with Australia's international obligations, including human rights
obligations' is also specifically referred to as one of the objects of the
bill.[83]
2.125
During the committee's public hearings, Departmental officials confirmed
that Australia's international human rights obligations will be a core
consideration for the Monitor in carrying out his or her statutory functions.[84]
2.126
With regard to a related issue, the ICJA expressed concern that the
reference to 'rights of individuals' in the bill is not clearly defined:
The ICJA questions which 'rights of individuals' the
legislation is referring to. The phrase 'rights of individuals' is not defined
in the Bill. This being so the phrase can be interpreted in numerous ways and
can be defined both inclusively and exclusively. This is because in Australia
we do not have a Bill of Rights or a Charter of Rights, which clearly set outs
[sic] what are 'the rights of individuals'.[85]
2.127
The Office of the Privacy Commissioner suggested that this could be
resolved through the provision of a 'non-exhaustive list of the kinds of rights
that the Monitor should take into consideration' (such as privacy) in the
Explanatory Memorandum.[86]
Committee view
2.128
The committee notes that the bill specifies the level of consideration
the Monitor is to give to Australia's human rights obligations. Clause 8
clearly states that, when performing his or her statutory functions, the
Monitor 'must have regard to Australia's obligations under international
agreements.' Officials clarified that human rights obligations will be a core
consideration in this regard. This fact is confirmed by the Explanatory
Memorandum which states that the Monitor 'must have regard to Australia’s human
rights obligations...'[87]
The committee also notes the explicitly expressed objective of the bill in ensuring
'that Australia's counter-terrorism and national security legislation...is
consistent with Australia's international obligations, including human
rights obligations'.[88]
2.129
While fully supporting these requirements in the bill, the committee
believes that the bill could be further strengthened by requiring the
Monitor to assess whether the legislation is consistent with Australia's
international human rights obligations. This would provide the Government, the
Parliament and other interested parties with important and useful information
on Australia's compliance with international obligations further promoting
confidence in the operation of national security and counter terrorism
legislation.
Recommendation 10
2.130
The committee recommends that the bill be amended to require the Monitor
to assess whether the legislation is consistent with Australia's international
human rights obligations.
2.131
The committee further notes the concerns raised during the inquiry
regarding the lack of definition for the phrase 'rights of individuals' in
clause 6. The committee suggests that Government consider providing a
definition of the phrase 'rights of individuals' in order to provide the
Monitor with appropriate guidance on the nature of the rights the bill is
intended to protect.
Proportionality
2.132
Many submissions welcomed the inclusion in the bill of the requirement
to consider whether national security laws remain necessary. However, some
submissions called for the Monitor to consider whether the laws under review
are in proportion to the scale of the threat being legislated against:
While this function may be implicit, it may be useful for the
Explanatory Memorandum to specify that the Monitor’s considerations under
clause 6(1)(b)(ii) include among other things, an assessment of whether any
limitation of individuals’ rights to privacy (and other rights) under
counterterrorism and national security legislation is proportional to an
identified threat or potential threat of terrorism.[89]
Paragraph 6(1)(b) includes appropriately the requirement that
the monitor report on whether anti-terrorism laws are necessary, and
subparagraph (i) allows the monitor to propose new safeguards. But the monitor
is not given the function of considering whether a law is proportionate to the
threat of terrorism at the time, nor, crucially, to advise that a law is
intolerable.[90]
Committee view
2.133
The committee notes that the Sheller Review report (Report of the
Security Legislation Review Committee) used proportionality as the 'guiding
principle' in its review of national security legislation.[91]
Furthermore the Clarke review, which recommended that the government establish
a national security legislation monitor, indicated that the Monitor should
'scrutinise all aspects of counter-terrorism legislation to ensure that the use
of anti-terrorism powers is proportionate...'.[92]
Finally, the Independent Reviewer of Terrorism Laws Bill 2008 [No. 2] expressly
states that a function of the Independent Review is to assess whether terrorism
laws 'are proportional to the extant threat of terrorism'.[93]
2.134
The committee is of the view that inclusion of the criterion of
proportionality will enable the Monitor to assess whether national security
legislation strikes the right balance between the protection of our national
security and the protection of Australian individual values and freedoms.
2.135
The committee is of the view that inclusion of the criterion of
proportionality will enable the Monitor to assess whether national security
legislation strikes the right balance between the protection of our national
security and the protection of Australian individual values and freedoms.
2.136
The committee agrees with the proposition that in undertaking his or her
reviews, the Monitor should be expressly required to assess whether the
existing counter-terrorism legislation is a proportionate response to the
threat posed to national security.
Recommendation 11
2.137
The committee recommends that the bill be amended to require the Monitor
to assess whether the legislation being reviewed remains a proportionate
response to the threat posed to national security.
Reporting requirements
2.138
A large number of submissions and witnesses commented on the reporting
requirements of the Monitor proposed in Part 4 of the bill. This Part sets out two
key reporting requirements: the provision of an annual report and reports on
references from the Prime Minister.
Availability of reports
2.139
Subclause 29(1) requires that the Monitor must present an annual report
to the Prime Minister relating to the performance of the Monitor's functions as
set out in paragraphs 6(1)(a) and (b).
2.140
Subclause 29(5) requires that the Prime Minister must present an annual
report of the Monitor to each House of the Parliament within 15 sitting days of
receiving the report.
2.141
In evidence to the committee departmental officials clarified the bill's
reporting requirements:
Senator LUDLAM—...Could you just confirm for us then
that apart from the annual reporting mechanism—I think the intention there is
reasonably clear—the monitor will not be reporting in any form directly to the
parliament?
Mr McDonald—No.
Senator LUDLAM—Will the referrals that come from the
Prime Minister’s office be made public? Will the parliament know when the Prime
Minister has requested some activity of the monitor?
Mr Fleming—That is not a requirement in the
legislation.[94]
2.142
Submitters and witnesses expressed concern that only the annual report
of the Monitor would be tabled in the Parliament, while reports on reviews
conducted by the Monitor were not required to be tabled.
2.143
For example the Castan Centre noted that while the annual report of the
Monitor would be provided to Parliament, 'there is no provision for the
presentation to Parliament of the results of any other review work undertaken
by the Monitor.'[95]
Similarly the Australian Human Rights Commission (AHRC) argued that the bill
'does not require the Prime Minister to table reports made by the Monitor in
response to a reference from the Prime Minister.'[96] The ICJA submitted that:
There is some concern that if reports are only being made
available to the Prime Minister there is a real risk that the reports may not
be made publicly available... [T]his restriction seems at odds with the Monitor's
information gathering functions and the whole purpose of the legislation.[97]
2.144
In its submission, the Castan Centre argued that the intended function
of clause 30 (relating to reporting on references) when read in conjunction
with clauses 6(1)(b) and 7, 'appears to be to permit the Prime Minister to
direct the Monitor to undertake a review whose conclusions may well not be
presented to the Parliament.'[98]
While not offering a firm view on the desirability of such an outcome the
Castan Centre noted that this risked 'capture of the Monitor by the
Commonwealth Executive.'[99]
In evidence presented to the committee the Castan Centre argued that:
Our submission does not take a strong view on the question of
whether the Prime Minister should be obliged to give to the parliament all
reviews which the Prime Minister commissions, because there are competing
considerations. Publicity and transparency are highly desirable but equally,
given the current state of disarray surrounding the administration and
operation of these laws, I think it would be highly desirable that the Prime
Minister get better advice than currently seems to be being given, and to that
extent there may be some advantage in having an independent person who can give
confidential advice to the Prime Minister.[100]
2.145
The Law Council also expressed its concerns regarding:
...the absence of the requirement in the [Bill] that these
report be tabled in Parliament or otherwise be made publicly available. This
means that the Prime Minister retains full control over what matters the [Monitor]
inquires into and whether the public is able to access the [Monitor]'s
findings. It leaves to the Prime Minister's discretion whether a Government
response to the [Monitor]'s is warranted and the Parliament and the public can
be denied the opportunity to evaluate whether the Government's response to any
findings made by the [Monitor] is appropriate.[101]
2.146
In a similar vein, the AHRC noted that not requiring the Prime Minster
to table the Monitor's reports to Parliament 'may undermine public confidence
in the independence of the monitor.'[102]
2.147
In its 9th Alert Digest of 2009 the Senate Scrutiny of Bills
Committee drew senators' attention to the fact that where the Monitor has
provided a report to the Prime Minister 'there is no provision requiring
the Prime Minister to present to the Parliament the report, an abridged version
of the report or a statement announcing the reference or completion of the
report.'[103]
The Scrutiny of Bills committee has sought the Cabinet Secretary's advice on
this matter and observed that the arrangement as currently proposed 'may be
considered to insufficiently subject the exercise of legislative power to
parliamentary scrutiny.'[104]
Committee view
2.148
The committee observes that, whether the Monitor's reports are provided
to the Prime Minister alone or also to the Parliament, is an issue that goes to
the heart of the Monitor's independence.
2.149
The committee is of the view that the reporting arrangements as drafted
would be adequate if the intention was to establish a government department,
where the department's primary responsibility is serve the government of the day.
However, in this instance the government has made clear its intention for the
Monitor to be independent statutory body. In the committee's view the Monitor's
reporting requirements need to reflect the independent nature of the position.
2.150
The committee acknowledges that in order to properly perform his or her
role the Monitor will need to access and assess confidential and classified
material. The committee believes that the sensitive nature of this material
must be respected. However, in the committee's view that should not preclude a
version of the report from being tabled in Parliament. The Monitor should seek
to present statistical and other information regarding the operation and
effectiveness of terrorism laws in a manner that can be made available to the
public. Taking this approach would enhance public confidence in the Monitor's independence.
2.151
The committee notes that under subclause 29(7) the Monitor must prepare
and give to the Prime Minister a supplementary report that sets out any
sensitive information that has been excluded from the Monitor's Annual Report.
The committee sees no practical reason why a similar approach cannot be taken
for referrals by the Prime Minister.
Recommendation 12
2.152
The Committee recommends that the bill be amended to require the Monitor
to prepare two versions of any report that requires reference to sensitive
material. The first version would be an unedited version for the Prime
Minister, and the second, an edited version with references to sensitive
material excluded for tabling in both Houses of Parliament.
Exclusion of material from the annual report
2.153
Subclause 29(3) contains a list of material that must not be contained
in the annual report of the Monitor, for example:
-
any operationally sensitive information;
-
any information that, if included in the report, would or might
endanger a person's safety; and
-
information that might prejudice the conduct of Australia's
foreign relations.
2.154
Subclause 29(4) requires that the Monitor must get the advice of the
responsible minister, or responsible ministers, concerned as to whether any
part of the annual report contains information referred to in subclause 29(3).
2.155
Many submitters and witnesses were critical of these restrictions. In
its submission, the Gilbert + Tobin Centre argued that 'every effort should be
made...to prevent the executive branch of government from having any involvement
in the preparation of a report prior to its being tabled in Parliament.'[105]
Similarly the Law Council noted that 'the ability of the Executive Government
to determine what information should be excluded from the [Monitor's] Annual
Report also has the potential to undermine the independent character of the
office.'[106]
Expanding on this point, the Law Council argued that:
These provisions appear to detract from the central value of
an independent reviewer of terrorism laws: namely the provision of independent,
accessible information to the public regarding the practical operation of
terrorism measures.[107]
2.156
The ICJA highlighted the same concerns as several witnesses and
submitters that subclause 29(3) provides that certain information may be
excluded from the Monitor's annual report. The ICJA stated that 'this provision
had the potential to undermine...the provision of readily accessible information
to the public'[108]
noting that:
The ICJA understands that on some occasions a report may
contain information that is highly sensitive. We submit however that on those
occasions the report could be worded to ensure that sensitive material is not
at risk of publication.[109]
2.157
Departmental officials told the committee that the reporting
requirements as defined in the bill were designed to ensure that ongoing
operations were not prejudiced as well as being conscious of the sensitivities
in relation to information that is sourced from overseas. The committee heard
that:
When the government made its decision—and the ministers in
the government were certainly aware that the panel idea, or reporting directly
to parliament, were possibilities—it was felt that, given the complexity of the
security environment, it was probably best to have the monitor report through
the Prime Minister. Just to give a bit of granularity to that, when it came to
the Clarke inquiry, for example, we experienced huge difficulties in that often
the information does not come from this country. Often it comes from other countries
and we have to be very careful about sensitivities in relation to the
information that is sourced from other countries. Quite often it is not
apparent, on the face of it, what the sensitivity is, so this mechanism and the
sort of model we have got here enable us to explore those matters. You would
probably appreciate that much of the safety of Australians in the context of
terrorism and acts of foreign interference and so on does depend on intelligence
security cooperation with other countries. If you do not respect those other
countries’ sensitivities then you might find yourself not getting sufficient
information.[110]
Committee view
2.158
The committee, while acknowledging the concerns expressed in
submissions, is of the view that there need to be mechanisms to avoid the
inadvertent release of sensitive material. The release of such material has the
potential to be highly damaging to the organisations and persons involved and
also risks Australia's international relations. For this reason the committee
supports the proposed arrangements for excluding sensitive material from the
Monitor's Annual Report.
Government response
2.159
A number of submitters and witnesses pointed to the importance of the
government publicly responding to the Monitor's reports and recommendations.
For example, when asked what was most important amendment that could be made to
the bill, Mr Jonathon Hunyor of the Australian Human Rights Commission
responded:
...the main thing would be to ensure that the government
responds to the reports, so there should be an explicit requirement in respect
of the reports of the monitor, which, as I have said, we think should follow
reviews even when they are not referred by the Prime Minister. In our view the
key improvement would be to ensure that those reports are tabled in parliament
and that those reports are responded to by government. We think that would
improve the effective operation and also the integrity of the monitor in the
system set up under the bill.[111]
Committee view
2.160
In this regard the committee notes the comprehensive response the
government tabled in both Houses of Parliament in December 2008 to a series of
bipartisan and independent reviews of our national security legislation conducted
over the past three years. The committee agrees that if this practice was
adopted for the Monitor's reports it would improve the effective operation and
integrity of the Monitor. It would also enhance the Australian community's confidence
that our law enforcement and security agencies have the tools they need to ensure
national security, while ensuring the laws and powers are balanced by
appropriate safeguards.
2.161
If the committee's recommendation on releasing a version of the Monitor's
reports to Parliament is adopted (recommendation 12 refers), then it flows that
the government should prepare and table a response to the Monitor's report. The
committee believes that it is reasonable to expect that government responses will
be tabled in the Parliament within a predetermined timeframe. The committee is
of the view that the government should respond within six months of receipt of
a report as this will allow the Government sufficient time to consider the
Monitor's report while also providing the Parliament access to timely
information.
Recommendation 13
2.162
The committee recommends that, if its earlier recommendation to require
the tabling of the Monitor's reports in both Houses of Parliament is adopted,
then the government be required to table a response to the Monitor's reports in
both Houses of Parliament, within six months of receipt of the report.
Senator Helen Polley
Chair
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