CHAPTER 3
KEY ISSUES
3.1
This chapter begins by providing an overview of the evidence received by
the committee, before examining four key areas of the Bill identified by
submitters as benefiting from further attention. These areas include:
- the role and function of the Independent Reviewer (IR);
- the IR's reporting requirements;
- censorship of IR reports; and
- whether the IR should be an individual or panel.
3.2
The committee then briefly discusses administrative arrangements for the
IR before making its conclusions and recommendations.
Overview of the evidence
3.3
Submitters generally supported the aims and objectives of the Bill. Typical
among these was the Law Council of Australia, which acknowledged that the
threat of international terrorism since 2001, bringing with it 'prolific
legislative activity', posed significant challenges for law makers.[1]
The Gilbert and Tobin Centre of Public Law submitted that more than 40 pieces
of Australian statute have been enacted in relation to terrorism thus far.[2]
Many legislative measures represented significant departures from established
principles of Australian law, leading the Law Council to submit that:
...[t]he exceptional nature of these anti-terrorism measures – and
the often disproportionate impact they have on the enjoyment of individual
rights – should not become normalised within the Australian criminal justice
system and must be subject to regular and comprehensive review.[3]
3.4
The Gilbert and Tobin Centre of Public Law took a similar view,
submitting that:
Understanding how the many disparate parts of our anti-terrorism
laws fit together is a bewildering task. It seems to suggest, in light of their
complexity and number, these laws require on-going review.[4]
3.5
The Law Council acknowledged the contribution of past reviews of terrorism
legislation, such as those conducted by the Sheller Committee and the
Parliamentary Joint Committee on Intelligence and Security referred to in chapter
two, but concluded that:
...[a] comprehensive, independent evaluation of Australia's
terrorism laws – that considers the content and operation of such laws and
explores their impact on the practices of law enforcement and intelligence
officers, courts and the community more broadly – is urgently needed in
Australia ... [F]or these reasons the Law Council supports thorough consideration
by this Committee of models such as that proposed by [the Bill].[5]
3.6
The Gilbert and Tobin Centre of Public Law agreed, describing the
post-enactment review that has occurred as 'markedly fragmented', and considered
that the once-off nature of the reviews had not produced a unified picture.[6]
Another submitter considered current review mechanisms 'irregular and
disconnected'.[7]
The Centre also made the point that an IR would examine laws as enacted, as
distinct from some other scrutiny mechanisms (such as this committee) which do
their work before enactment.[8]
3.7
In particular, the committee notes the submissions of the Commonwealth
Ombudsman and the Inspector-General of Intelligence and Security, both of whom
expressed support for enhanced review of security legislation.[9]
3.8
A different view was taken by the New South Wales Council for Civil
Liberties, which argued that legislation to address terrorist activity was
unnecessary and should be repealed in its entirety, rendering an IR unnecessary.[10]
While supporting the introduction of an IR, the Federation of Community Legal Centres
of Victoria put its similar concerns this way:
In our view, the appointment of an Independent Reviewer is not a
substitute for repeal of undemocratic and excessively harsh laws. When these
laws were introduced, they were recognized as an extraordinary response to
particular global circumstances, as departing from fundamental principles and
as impinging on civil liberties. Consequently, sunset clauses were included in
the various acts and the legislation provides for independent and parliamentary
inquiries to assess the operation of the laws and their on-going necessity. As
these laws were introduced as extraordinary measures, we hope that the
establishment of an Independent Reviewer is not an indication of the permanency
of these laws. It should always be within the scope of the Independent
Reviewer’s role to recommend full repeal of all of the laws.[11]
3.9
Before embarking on a discussion of specific aspects of the Bill requiring
further attention, the committee wishes to point out a more general flaw
relating to its lack of detail. Even accounting for the differences in their
role and function, a brief comparison of this Bill with the legislation
governing the Inspector-General of Intelligence and Security highlights a
number of shortcomings.
3.10
Put simply, the Bill fails to deal with significant aspects of the
establishment and operation of a statutory office like an IR. Some of the matters
ignored include the IR's immunity from civil liability, remuneration, the
manner and method of inquiries, as well as administrative provisions relating
to resourcing.[12]
All of these are dealt with substantively in the Inspector-General of
Intelligence and Security Act 1986.[13]
Legislative parameters: the role and function of the IR
Coverage of legislation
3.11
The Castan Centre for Human Rights Law at Monash University expressed
concern that the specific terms of Clause 4, which brings under the
jurisdiction of the reviewer 'any law or part of a law directed to the
prevention, detection or prosecution of a terrorist act' may not capture all
the legislation it is intended to. Several examples are provided of provisions
which might fall outside the limits of the Bill.[14]
The Inspector-General of Intelligence and Security identified the same issue,
as did a number of other submitters.[15]
3.12
The Attorney-General's Department submitted that:
It may be desirable to include a list of legislation when
defining the role of the independent reviewer. In formulating that list, one
approach may be for the independent reviewer to focus on the laws specifically
enacted for the purposes of terrorism...[R]egardless of which laws are the
subject of review...the Department considers it important to emphasise that it
would be desirable...to focus on those laws which have had practical application
[which would] give the independent reviewer the opportunity to examine the
effectiveness and implications of the laws, including any human rights
implications.[16]
3.13
A number of submitters, including the Public Interest Law Clearing House[17]
and the Inspector-General of Security and Intelligence[18]
suggested non-exhaustive lists of legislation that might provide the basis for
enumerating which laws are intended to be covered by the IR.
Specificity of focus
3.14
The Law Council was not alone in its view that the Bill should more
specifically identify the required content or scope of any review undertaken by
an IR, or should enumerate the matters to be addressed as a minimum in a
review.[19]
3.15
The Gilbert and Tobin Centre of Public Law agreed, submitting that:
In its attempt to confer maximum flexibility upon the
Independent Reviewer, the Bill risks creating an office which is not as useful
as it might be. While we appreciate the value of ensuring that the Independent
Reviewer should be responsive to the priorities as she or he identifies them ...
it would still be beneficial for the Bill to specify essential areas to be addressed
in the Independent Reviewer’s annual reports. This would ensure a consistent level
of review over at least the main components of the terrorism laws – such as the
offences, the questioning and detention powers and control orders.[20]
3.16
Various suggestions were put to address this lack of specificity. Many
reflected a desire for the IR to explicitly consider the effect of terrorism
legislation on the submitter's specific area of interest.[21]
Among those to offer suggestions was the Public Interest Law Clearing House,
which submitted that the IR should, within the broad discretion afforded under
section 8 of the Bill, be required to have regard to a non-exhaustive list of
relevant considerations when determining review priorities, including but not
limited to:
- Australia’s
international human rights obligations;
- the extent to which the laws under review alter fundamental legal
principles, including: habeas corpus; the right to silence; the right of a
person to be notified of a charge in respect of which they are being held, or
to be released from custody; the right to be informed of the nature of the
charge in respect of which a person has been detained; and the right to legal
representation during questioning;
- whether the relevant laws are effective and workable, both within
their own terms, and in combination with other legislation;
- whether there are any less-restrictive means by which the
objectives of the relevant legislation could be achieved;
- any other legislation which is relevant to a comprehensive
consideration of the operation, effectiveness and implications of laws relating
to terrorist acts.[22]
3.17
Human rights was a topic that came up repeatedly among submitters as
requiring specific consideration by an IR in the context of evaluating
terrorism-related legislation.
Human rights
3.18
As well as recommending that the function of the IR be spelt out more
precisely, the Gilbert and Tobin Centre of Public Law considered that laws
relating to terrorist acts be reviewed for their effectiveness in achieving
national security and their impact upon other relevant matters such as human
rights and community relations.[23]
3.19
Similar observations were made by, inter alia, the Castan Centre
for Human Rights Law[24],
the Human Rights Law Resource Centre[25],
the Sydney Centre for International Law[26],
the Public Interest Law Clearing House[27],
Australian Lawyers Alliance[28]
and the Australian Human Rights Commission.[29]
Detention powers, in particular, were identified as being in need of urgent
review.[30]
3.20
The Federation of Community Legal Centres of Victoria expressed concern
that the Bill contained no requirement that the IR conduct any reviews, but
instead confers on the reviewer complete discretion, and identified particular
criteria on which it submitted terrorist laws should be evaluated. These
include the discriminatory impact of the laws; the impact of the laws on civil
liberties; community concerns about the laws; and the consistency of the laws
with fundamental principles of criminal law.[31]
3.21
The committee notes that amendments relating to detention, and seeking
to include in the Bill explicit reference to human rights have been tabled in
the Senate by the Australian Greens.
Powers
3.22
The Human Rights Commission, among others, called for the IR to hold
stronger information gathering powers, to be achieved primarily through the
imposition of a penalty on failure to comply with requests from the IR for information.[32]
Reporting
3.23
The absence in the Bill of any requirement to report on a regular or
prescribed basis directly to Parliament drew criticism from a number of
submitters, including the Sydney Centre for International Law[33],
the Federation of Community Legal Centres of Victoria[34],
and the Public Interest Law Clearing House.[35]
3.24
Clause 11 of the Bill would see the IR report to the relevant minister,
rather than to Parliament. Some submitters argued for reports to be made
directly to Parliament, at least partly so that Parliamentary committees might
have less fettered access to their contents.[36]
To this end, the Law Council cited Professor Clive Walker as arguing that
Parliament and its committees should not have to 'await the pleasure of the government
as to the terms on which the debate takes place'.[37]
The Gilbert and Tobin Centre of Public Law argued similarly, adding that where
reports are requested by committees such as the Parliamentary Joint Committee
on Intelligence and Security[38],
the resulting document should be delivered directly to the committee.
Censorship of reports
3.25
The Bill makes provision for the IR to withhold from publication
information contained in the report which might adversely affect national
security or on other compelling grounds.[39]
Some submitters expressed disquiet at the potential effect of the provision on
the ability of the Parliament and the public to receive a full and accurate
picture of the body of terrorism-related legislation, an objective which is at
the heart of this Bill.
3.26
While submitters generally accepted that that the IR would come into
contact with sensitive material, a number put the view that it ought to be
possible for the information to be reflected, or at least referred to, in the
report in a manner that does not prejudice security. The Law Council drew on
the situation in the United Kingdom, reflecting that, in that country, the reviewer
was able to represent statistical and other information regarding the operation
and effectiveness of terrorism laws without threatening national security.
3.27
The Gilbert and Tobin Centre of Public Law took a very similar approach,
submitting that:
While the Independent Reviewer will undoubtedly view sensitive
material (we support the inclusion of s 10 to this end), it would seem
preferable that she or he writes reports in such a way that neither risks
disclosure of such information nor necessitates the suppression of any
contents. This has been managed by earlier review committees in Australia and
would go a long way to ensuring the perception of the office as truly
independent and fully accountable to both arms of government.[40]
Strength in numbers? A single IR, or a panel
3.28
While the Bill provides for the appointment of an individual to the role
of IR, a number of submitters call for the role to be undertaken by a committee
or panel.[41]
The Law Council cited the situation in the United Kingdom, and observed that
where an individual reviewer remains in the position for a considerable period,
there is a risk that the value of his or her review function could be
undermined by speculation regarding their real independence or their
willingness to criticise the government of the day.[42]
The Gilbert and Tobin Centre of Public Law concluded that:
...[T]here would seem less risk of the office of Independent
Reviewer being perceived as an 'advocate' of the Commonwealth's laws if it was
comprised of a panel of three Reviewers of diverse backgrounds and relevant
expertise.[43]
3.29
In lieu of a panel, the Law Council suggests that individual reviewers
be eligible to serve a single term only, with no opportunity for
re-appointment.[44]
Other submitters, such as the Gilbert and Tobin Centre of Public Law agreed.[45]
Administrative matters
3.30
A number of submitters commented that the IR would need to be adequately
resourced so that it could undertake its role effectively.[46]
3.31
The submission from the Commonwealth Ombudsman, Professor John McMillan,
pointed out the practical difficulties with establishing a completely new body,
such as proposed in the Bill. Professor McMillan reminded the committee that
there might be practical advantages to the office of the IR being attached to
his office or that of the Inspector-General of Intelligence and Security, which
are already established:
The Independent Reviewer will also have a need to establish an
office and to obtain staff to assist in conducting the review. This can be a
time consuming exercise, especially if the staff need to acquire a high level
security clearance to be given access to documents and briefings. The efficient
completion of a review can be hampered if there are staff movements during the
course of the review.[47]
3.32
The Inspector-General of Intelligence and Security, Mr Ian Carnell,
submitted that in relation to assuming administrative responsibility for the IR,
his office:
...is not resourced or structured to perform a continuing review
of the body of terrorism laws from a policy perspective. My office could play a
role in providing input to the work of an [Independent Reviewer], as could the
Commonwealth Ombudsman. One of our offices could be given the role of (and
resources for) administrative support to the [Independent Reviewer] (to avoid
them having to establish their own office).[48]
Committee view
3.33
In an opinion piece in the Australian Financial Review, Associate
Professor Andrew Lynch outlined the advantages he saw to the introduction of
an independent review mechanism:
First, continuing and integrated examination of how the complex
body of anti-terrorism law works enables early identification of inherent problems.
Second, it helps to depoliticise the very contentious debates about these laws
and their importance overall to national security. Third, it reassures the
community that a kind of watchdog exists to report publicly on laws that they
fear might be used against them.[49]
3.34
The committee concurs with each of these observations, and notes the
widespread support for the establishment of an independent review mechanism for
Australian terrorism-related legislation. While the committee considers the Bill
to be sound in principle, its failure to address key aspects of the
establishment and operation of the office of an IR mean that it should not be
passed in its current form.
3.35
A common theme throughout many submissions was the need to more
accurately spell out the role of the IR, and in particular which legislation
fell under its purview and which criteria should be used by the reviewer to
guide the review. The committee finds these observations to be well made, and
recommends that the Bill be amended to clarify these matters, perhaps through
the insertion of a list of legislation intended to be subject to scrutiny by
the reviewer. The committee also sees potential merit
in the legislation falling under the remit of the IR being benchmarked against Australia's international
human rights obligations.
3.36
The Bill should also be amended to insert provisions requiring the
production and tabling of an annual report of the IR's activities to Parliament,
and convey greater information-gathering powers through the imposition of a penalty
on failure to comply with requests from the IR for information.[50]
3.37
Having regard to the censorship of reports, it seems to the committee
that the solution turns largely on the degree of specificity employed by the
reviewer. Where a report makes an observation about a particular law or its
operation, reference might meaningfully be made to a generalised situation, or
one that is hypothetical. Nonetheless, scenarios can easily be foreseen where
reference is necessarily made to specific cases, not least because the law in
relation to terrorism is invoked relatively rarely in comparison with other
laws. Where such references pose a threat to security, the report provided by
the minister to Parliament should be edited appropriately.
3.38
The committee would make the simple but important point that information
should be certified for deletion only where that is reasonably and objectively
found to be warranted. Both the IR and the relevant minister should remain
mindful of the underlying objectives of this Bill to increase transparency in
relation to terrorism laws. This objective may be substantially undermined by
the injudicious use of provisions which allow for the suppression of material
which might help inform debate.
3.39
The committee was impressed by arguments in favour of the role of IR being
filled by a small panel, as opposed to an individual. While a single
appointment offers administrative simplicity and possibly financial advantages,
the committee can see merit in establishing a panel of three independent
reviewers with relevant expertise. Such an arrangement offers the opportunity
to stagger new appointments, therefore promoting continuity over time, but also
reduces the risk of perceived lack of independence.
3.40
Having regard to the administrative arrangements to support the IR, the
committee was again struck by the absence in the Bill of details relating to
the corporate structure of the office of the IR, whether it constituted a
Statutory Agency, under what legislation it would employ staff, and how it would
be resourced. However, the committee notes the observations of a number of
submitters, in particular the Commonwealth Ombudsman and the Inspector-General
of Security and Intelligence, and the possibilities they raise of potential
efficiencies through the use of existing resources. The committee makes no
recommendation on this matter, other than to suggest that Government consider
the advantages and disadvantages of establishing the office of the IR within an
existing agency, such as one of those referred to above, with a view to
maximising its effectiveness and efficiency in carrying out its role.
Recommendation 1
3.41
That the Bill be supported in principle, but that the following
recommendations be implemented prior to it being passed.
Recommendation 2
3.42
That the Bill be amended to comprehensively describe the role and
function of the IR, and enumerate the criteria by which legislation should be
reviewed.
Recommendation 3
3.43
That the Bill be amended to detail:
- the legal status of the Independent Reviewer;
- the legislation intended to fall under its purview;
- resourcing of the IR; and
- the immunity or otherwise of the IR from civil liability.
Recommendation 4
3.44
That the Bill be amended so that the role of Independent Reviewer is carried
out by a panel of three people with relevant expertise, and that their terms of
service be staggered where possible.
Recommendation 5
3.45
That the Bill be amended so that, in addition to reporting to Parliament
on inquiries undertaken by the Independent Reviewer in respect of terrorism
legislation, an Annual Report on the activities of the Independent Reviewer is
tabled in Parliament.
Senator Trish Crossin
Committee Chair
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