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Estimates: Independent National Security Legislation Monitor

Estimates & Committees
Penny Wright 29 May 2014

Will the government respond to previous INSLM reports? And how will the monitor's functions continue if plans for its abolishment go ahead?

Senator WRIGHT: In relation to INSLM, the Independent National Security Legislation Monitor. Attorney-General, could you advise how the government intends to respond to the INSLM's previous reports and the further one due in June.

Senator Brandis: I actually took a question on this topic in the Senate in the last sitting week. The answer is that we intend to respond. The reason I make that perhaps obvious reply is that it was by no means obvious that there was going to be a response to the INSLM's reports, because none of the reports by the INSLM were responded to by the previous Labor government. When the coalition was elected, in September last year, we found that for all the fuss that the Labor Party had made about the statutory office, his reports had been entirely disregarded, and some were some years old. So, we will be responding to the reports. As to what the response will be and what it will contain, you will just have to wait until the response is finalised. But, unlike the previous government, we will be responding.

Senator WRIGHT: Is there a projected time around when we could be expecting it?

Senator Brandis: There may be among those doing the work on this, but I am not in a position tonight to tell you what it is.

Senator WRIGHT: There is legislation currently prepared to abolish the INSLM. How will the monitor's functions be continued?

Senator Brandis: The monitor's functions will be continued by the various law reform and oversight bodies that exist. Let me give you an example. You would be familiar with the Parliamentary Joint Committee on Intelligence and Security. That committee, during the life of the last parliament, on the reference of Attorney-General Roxon, conducted a very exhaustive review of Australia's national security laws. By that I mean particularly the laws establishing the various national security agencies. A unanimous report was tabled in the dying days of the last parliament. I use that to give you an example of how the parliamentary committee, through its own system, is not only capable of but does engage in very exhaustive law reform in this very area. Then there are the other statutory bodies that are responsible more generally for law reform, including of course the Australian Law Reform Commission. And this very committee has as one of its functions to keep laws within acts of parliament under this portfolio under review. So the functions that the INSLM has performed will continue to be performed by bodies of that kind.

Senator WRIGHT: I would like to get your comments on each of these views that have been expressed and that raise concerns about that approach. First, you have indicated that a range of bodies will be involved in taking over those function, so the conduct of the oversight would be spread over a number of other oversight mechanisms and it would potentially increase bureaucracy and dilute focus—

Senator Brandis: I do not agree with that. Can I just make the point to you that I hope you do not think this is a semantic difference. I do not think it is semantic. You said 'oversight'. But there is a difference between review and oversight. Oversight, for which there are provisions elsewhere—for example, the Independent National Security Monitor, the Inspector-General of Intelligence and Security—conducts oversight. And by oversight I mean oversees the operational activity of the agencies. But we are not talking here about oversight in that sense. What we are talking about is periodic reviews of the legislation in the manner of law reform.

Senator WRIGHT: I do understand that. Given that there will be an array of different bodies and organisations looking at it, sometimes there will be overlaps and sometimes there will not be.

Senator Brandis: There might be—

Senator WRIGHT: Isn't there a risk that there would be an increasing amount of bureaucracy and it will be less efficient than having one organisation do it. That is certainly one view that is put.

Senator Brandis: It might be, but I think it is wrong, because these are not new bodies. These are existing bodies. We are not creating a new body and in fact what we are doing is removing a body or an office. So that will reduce rather than increase bureaucracy. It will reduce by one the number of such bodies. Nor do I think that any harm is done by having more than one set of eyes on this legislation.

Senator WRIGHT: And as you have so rightly pointed out, some of these bodies were already in existence at the time that the INSLM was established, which would suggest that there was a view at the time that their combined functions would not be adequate to be able to do the kind of careful ongoing methodical review of the increased—perhaps, in some cases—terrorism laws. What would you say to that?

Senator Brandis: I will tell you what I say to that: I agree with you, up to a point, because I was a big supporter of the establishment of INSLM. It was established in the parliament before last—in other words, during the life of the first Rudd government—and it was not an ideal that came from the Labor Party; it was an idea that came from the Liberal Party. It was proposed originally by the former member for Kooyong Mr Petro Georgiou and it was moved in the Senate by former senator Troth and seconded by me.

So I could see—and still can see—the point of having such a body, but this was a savings measure. I do not mean to be tedious about this, but it is the stark, unbridgeable reality against which all public policy decisions must be measured at the moment. The Abbott government, when it was elected, inherited a public debt of unprecedented levels trending, according to Treasury, to a public debt of $667 billion—far and away the highest level of public debt in Australian history and debt that had escalated from zero per cent of GDP to 26 per cent of GDP in just six years—so we had to find savings measures.

This morning, Senator Wright, we had some discussion about the arts, and I pointed out to you that we had to reduce the arts budget by 3.1 per cent. When the country had had a period of good Liberal government in the previous government, we were able to increase the arts budget by 65.8 per cent. When government runs the economy well, you can do things that you cannot afford to do when you have had a period of a Labor government that has left a complete train wreck. In a perfect world, if resource constraints were not an issue, it might be a good thing to have an INSLM, but we needed to find savings measures, and, because there were bodies that were capable of doing the work of the INSLM, we identified this as a savings measure within the portfolio.

Senator WRIGHT: That is an interesting observation. I am not clear, given that you indicate that it was largely a savings measure—and I understand the context you have given for that—that there is an argument that the pre-existing conditions that made it a good idea have changed in any way that make it not a good idea now. As opposed to being a savings measure, that is.

Senator Brandis: That is the way I put it, Senator. I could not have been more frank with you. My views about this have not changed over the years. I think this was a marginal benefit, these are all marginal judgements and, when you are looking for savings measures, you cut at the margins rather than at the core.

Senator WRIGHT: Clearly it would have been helpful if the previous reports had been effectively responded to.

Senator Brandis: It would have been very helpful if they had been responded to at all, but they were completely ignored by the previous Labor government.

Senator WRIGHT: Certainly that is something that I called for consistently as well. If I can just look at the arguments that people have made about why the various bodies that you have cited as being able to perform some of these functions do not actually do the complete job—and I will ask you to comment on them. The INSLM looks specifically at the operation effectiveness and implications of the legislation, and the IGIS does not do that. Would you agree that that is the case?

Senator Brandis: The IGIS has a different role, and that is the distinction I was pointing out before. The IGIS looks at the operation of the agencies, not the legislation.

Senator WRIGHT: Yes. Another point that is made is that the INSLM, again, looks specifically at the operation effectiveness and implications of the legislation in its entirety, which the Parliamentary Joint Committee does not do.

Senator Brandis: These are all good observations, but the point I am making to you is that this was a savings measure, because the government felt—given that we had to find savings to begin to repair the financial train wreck that we inherited—that we had to trim bodies which, although perhaps worthy bodies, were of marginal utility.

Senator WRIGHT: Finally, there is the observation that the scrutiny or the review does not happen on an ongoing basis. The parliament will look at it sporadically, but it will not look at it as an ongoing issue. Often it is triggered by sunset clauses and things like that. Would you agree with that too?

Senator Brandis: I cannot disagree with anything you say. The INSLM, which was originally an idea which came from the Liberal Party and was belatedly adopted by the Labor Party, was a good idea but it was a marginal idea. There is no function of the INSLM that cannot be performed by other bodies, although the observations you have made are good ones. If these were the days when we had a government which produced 10 budget surpluses in a row, the country was awash with prosperity and we lived in the land of milk and honey again, as we did when Mr Howard was the Prime Minister, then we would not be having this discussion. But, sadly and shamefully, we now live in a time after the sixth biggest budget deficits in Australian history consecutively and we have to cut our cloth to suit our circumstances.

Senator WRIGHT: We will look forward to seeing the response, thank you.


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