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Independent National Security Legislation Monitor (Improved Oversight And Resourcing) Bill 2014: Second reading speech

Speeches in Parliament
Penny Wright 3 Dec 2014

I am pleased to rise and speak to this important bill, which I have introduced with the aim of preserving and enhancing the crucial role of the Independent National Security Legislation Monitor (INSLM).

In a world characterised by unrest and fragile peace, the Australian Greens understand the need to have a robust conversation about our national security laws. We also have the highest regard for human rights and freedoms.

When it comes to national security, we often hear arguments that traverse the 'if you only knew what I know' territory. That is, those with unfettered access to national security information justify sweeping changes to legislation on the basis of information not publicly available. Of course, it is necessary that sensitive information be kept confidential. But the position of the Independent National Security Legislation Monitor, which I will refer to as 'the Monitor', is unique because it is held by a person who has a full understanding of the threat faced and of the measures to be taken to address this threat.

As the United Kingdom's Independent Reviewer of Terrorism Legislation has said, the concept of an independent reviewer of national security legislation is, in many ways, ground breaking: "A person is selected on the basis of independence from Government; given unrestricted access to classified documents and national security personnel; and his conclusions-favourable or otherwise-promptly published not just to Ministers but to Parliament and the general public." The Reviewer goes on to state: "By accepting review of this kind, Ministers make it harder for themselves to use the age-old brush-off: 'If you had seen what I have seen ...' The Independent Reviewer has seen what they have seen and, unconstrained by the disciplines or loyalties of office, has every reason-unless he has gone rogue or gone native-to tell it as it is."

The role of Independent National Security Legislation Monitor is one of vital importance which should be strengthened and properly resourced. Perhaps most critically-the position of Monitor must be filled-not left to languish on the statute books while the government makes wide ranging and deeply significant changes to Australia's counter-terrorism and national security laws.

In relation to the specifics of this bill, schedule 1 comprises amendments to the Independent National Security Legislation Monitor Act 2010 (the Act) to ensure that the Monitor can review proposed as well as existing national security legislation and to do the following:

  • to make it clear in the objects clause of the act that the Monitor is required to consider whether Australia's national security legislation is a proportionate response to the national security threat faced;
  • enable the Senate Committees on Legal and Constitutional Affairs to refer matters to the Monitor for inquiry;
  • enable the Human Rights Commissioner to refer matters to the Monitor for inquiry;
  • ensure that the position of Monitor is a full time position, cannot be left vacant and is supported by appropriate staff; and
  • ensure that all reports of the Monitor are tabled in parliament and that the government is required to respond to the recommendations of the Monitor within six months of tabling.

These reforms would bring the legal framework establishing the Monitor closer to that applying to other statutory oversight bodies such as the Inspector General of Intelligence and Security.

Schedule 2 of the bill amends the Australian Human Rights Commission Act 1986 to ensure that it is a function of the Australian Human Rights Commission to refer matters to the Monitor for inquiry.

This bill is particularly critical at this time of prolific expansion of Australia's national security legislation, and in light of the adoption of time frames that severely limit parliamentary and other forms of independent scrutiny of proposed reforms. In this year alone, the government has introduced three significant pieces of legislation which have implications for national security:

  • The National Security Legislation Amendment Bill (No. 1) 2014
  • The Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014
  • All The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014

The office of the Monitor was established in 2010 to help ensure that Australia's national security legislation is, in fact, effective in deterring and preventing terrorism and terrorism-related activity which threatens Australia's security, as well as being consistent with Australia's international obligations under international law and contains appropriate safeguards for protecting the rights of individuals. Mr Bret Walker SC held the position of Monitor from 21 April 2011 to 20 April 2014. Since then, no Monitor has been appointed.

It is deeply regrettable that this office should remain vacant at a time of the most significant legislative reform in this area for almost a decade. It is also deeply regrettable that despite the preparation and tabling of four detailed and comprehensive reports by the former Monitor, Mr Bret Walker SC, there has been no official government response (from either the Labor Party or the Coalition) other than the legislation described above, which selectively, and often erroneously, claims to implement some of the Monitor's recommendations.

Earlier this year, the government tried to repeal the Independent National Security Legislation Monitor Act 2010, claiming the role of Monitor was unnecessary, and must be removed as part of its 'reduction of red tape' budgetary measures. This lack of respect for the role of Monitor, which is blatantly apparent from the current lack of appointment to the position, comes at a time when the community needs an active, well resourced, well respected independent Monitor more than ever.

Despite the government's clear ambivalence about the position, the importance of the role of the Monitor was reflected in the recommendations of the Parliamentary Joint Committee on Intelligence and Security in its report on the Counter-Terrorism Legislation (Foreign Fighters) Amendment Bill 2014. Indeed, following on the back of those recommendations, the role of the Monitor has recently been significantly expanded by that legislation, the 'Foreign Fighters Bill'. The bill amended the act by introducing a new subsection 6(1A) that requires the Monitor to review the sun-setting counter-terrorism provisions in the ASIO Act, the Criminal Code and the Crimes Act (such as the control order and preventative detention order regimes, ASIO's questioning and detention powers and the new 'designated area' offences) by 7 September 2017.

This Private Senator's Bill, which I am introducing in my role as legal affairs spokesperson for the Australian Greens, recognises the critical role the Monitor has played, and must continue to play, in reviewing Australia's national security legislation and providing the public and the parliament with independent advice as to whether these laws are necessary, effective, and proportionate - and to consider their impact on individual rights.

This bill seeks to amend the act so that the current situation, where the role of Monitor is left vacant and recommendations can be ignored, cannot be allowed to continue in the future.

Critically, this bill will ensure that the Monitor is empowered to provide independent, expert advice about the effectiveness and proportionately of proposed changes to Australia's counter-terrorism and national security lawsas well as existing legislation.

This bill also enhances the independent character of the Monitor by ensuring that he or she can receive references from the Senate Committees on Legal and Constitutional Affairs and from the Australian Human Rights Commission. By preserving and enhancing the role of the Monitor, the bill aims to give the Australian community confidence that Australia's counter-terrorism and national security laws are operating effectively and accountably, and in a manner consistent with Australia's international obligations, including human rights obligations.

The function of the Monitor is to review the operation, effectiveness and implications of the counter-terrorism and national security legislation and report his or her comments, findings and recommendations to the Prime Minster, and in turn parliament, on an annual basis. The Monitor must also consider whether Australia's counter-terrorism and national security legislation contains appropriate safeguards for protecting individuals' rights, remains proportionate to any threat of terrorism or threat to national security, or both, and remains necessary.

Recent moves by this government to rush through drastic and draconian changes to national security laws which weaken the rights and freedoms that sustain our democracy are further evidence that this bill is necessary and that the role of the Monitor must be strengthened as we cannot rely on either current or future governments to give the position of INSLM the respect it deserves. A stronger Monitor is fundamental to provide transparency and accountability for national security laws.

The Australian Greens understand the need to give our law enforcement and security agencies the tools they need to protect Australians. However, we also believe that security laws must be proportionate and balance the need for security with the imperative for human rights and freedoms. This Private Senator's Bill responds to the critical need-already keenly felt within the parliament and the community-for careful, independent scrutiny of Australia's counter-terrorism and national security laws. When making serious and highly complex changes to our national security laws, it is so important we seek expert, independent advice to assist us in making good decisions that are in the best interest of all Australians.

The changes proposed by this bill also align with world's best practice in countering terrorism in a manner consistent with human rights. As the former UN Special Rapporteur for the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, has explained, best practice demands regular and independent review of counter-terrorism laws and their impact on human rights, and that review mechanisms be based on statutory terms of appointment, linked to the work of relevant parliamentary committees and accompanied by adequate resourcing. Review mechanisms should enable public consultation and should be accompanied by publicly available reports.

The past reports of the Monitor on existing counter-terrorism laws demonstrate the capacity of the person in this role to identify what aspects of the laws are having a disproportionate effect on human rights, and to identify practical alternative mechanisms to deter, prevent and disrupt terrorist activity in Australia. For example, in his Second Annual Report, the Monitor examined the existing control order regime, noting that because control orders "do not require the established safeguards of a criminal trial according to law and because they may be very restrictive in their effect on a person's way of life - personally, socially and occupationally - it is critical that these provisions be scrutinized." The Monitor concluded that: "control orders in their present form are not effective, not appropriate and not necessary."

The Monitor considered the effectiveness of the control orders regime at preventing terrorist activity in Australia as well as the impact of the regime on human rights. The Monitor concluded that the existing regime required substantive reform, suggesting that "they may be effective, would be appropriate and might be regarded as necessary in the case of persons already convicted of terrorist offences whose dangerousness at the expiry of their sentences of imprisonment can be shown." These recommendations have been ignored by the Government, which has since introduced legislation that would significantly expand the scope of the control order regime and dilute existing procedural safeguards. This legislation was rushed through Parliament without the opportunity for expert, independent advice to be sought or considered.

One significant restriction on the power of the Independent National Security Legislation Monitor to perform its functions is the source of its referrals. Currently, only the Prime Minister and the Parliamentary Joint Committee on Intelligence and Security can refer matters to the Monitor for review and report. This effectively excludes any extra-parliamentary body at all, or any parliamentary body that is not subject to government vetting, from referring matters to the Monitor. This severely limits the independent character of the Monitor, and can leave the Parliament without access to independent, expert advice on proposed and existing counter-terrorism and national security laws.

The amendments encompassed by this bill will ensure that the two committees on legal and constitutional affairs-who are regularly involved in scrutinising proposed and existing counter-terrorism laws-are empowered to refer relevant matters to the Monitor for review and reform-as well as empowering Australia's pre-eminent human rights body-the Australian Human Rights Commission to make such a referral.

The Legal and Constitutional Affairs Committees (Legislation and References) are made up of a more representative cross section of the Parliament which will enable crossbenchers to engage more fully on issues of national security, given they are currently excluded from the Parliamentary Joint Committee on Intelligence and Security.

The Australian Human Rights Commission is uniquely placed to identify whether and to what extent national security laws are engaging with or infringing upon human rights, and therefore would serve as an efficient and independent source of referrals to the Monitor. For example, through its work with Arab and Muslim Australians, the Australian Human Rights Commission is familiar with concerns that counter-terrorism legislation can have a disproportionate impact on the rights of members of particular communities. This information could form the basis of a referral to the Monitor, who in turn, possesses unique information gathering powers that allow him or her to speak with the agencies responsible for implementing these laws and to comprehensively review the practical impact of counter-terrorism laws on individual rights. By providing the commission with the power to refer matters to the Monitor, this bill will ensure that the parliament and the public have the best available information on which to assess Australia's proposed and existing counter-terrorism laws.

The Australian Greens have analysed and critiqued this government's national security agenda-which has been catalysed by the violence of Islamic State militants and the threat of returning 'foreign fighters', as they have been called. We have consistently condemned the brutality of Islamic State. By no means do we seek to minimise the terror this regime is inflicting and inciting. But neither do we want to pass rushed and poorly crafted national security legislation which has serious implications for some of the most basic rights and freedoms of Australians: whether and where people travel, the circumstances in which people can be detained and questioned by ASIO, customs officials or the police and what kind of personal information is captured and stored.

This government's approach to national security legislation has been rushed, to say the least. Inquiries conducted through the Parliamentary Joint Committee on Intelligence and Security have featured unworkable deadlines for those wishing to make submissions

In the case of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014while this legislation was also referred to the Legal and Constitutional Affairs Legislation Committee for inquiry, the government senators on this committee made the decision not to hold hearings or accept submissions on this bill. This meant that crossbenchers were not able to participate in any inquiry into this bill.

The Australian Greens are firmly of the view that there must be a greater level of scrutiny and oversight of proposed national security legislation. Strengthening the position of the Independent National Security Legislation Monitor is a crucial step in this direction. As currently drafted, the main purpose of the Independent National Security Legislation Monitor Act is to ensure that Australia's counter-terrorism and national security laws operate in an effective and accountable manner, are consistent with Australia's international obligations, including human rights, counter-terrorism and international security obligations, and to help to maintain public confidence in those laws.

Recent uncertainty around the position of the INSLM has risked undermining this legislative aim. This bill aims to ensure the legislative aim of the Independent National Security Legislation Monitor Act is realised-giving the Australian community confidence that Australia's counter-terrorism and national security laws are operating effectively and accountably, and in a manner consistent with Australia's international obligations, including human rights obligations.

As outlined in the bill's statement of compatibility with human rights, the bill is consistent with the protection and promotion of many rights and freedoms subject to scrutiny under the Human Rights (Parliamentary Scrutiny) Act 2011. The bill also aligns with world's best practice for ensuring consistency between counter-terrorism laws and human rights.

Counter-terrorism and national security laws seek to promote and protect human rights by empowering law enforcement and intelligence agencies to deter, prevent, and disrupt activities that would endanger the safety or lives of the Australian community. Measures to combat terrorism may also impact human rights and the rule of law. The negative impact of counter-terrorism laws on human rights in Australia can be observed in the report prepared by the Parliamentary Joint Committee on Human Rights in respect of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. The human rights impact of this legislation was extensive and deep, prompting some experts to make submissions recommending the bill should not have passed without significant changes.

The rights to freedom of expression, of association, of equality and non-discrimination - and many other human rights - were engaged or limited by what was colloquially known as the 'Foreign Fighters' bill. And it is well known that counter-terrorism laws, like other laws, can permissibly limit rights, provided the limitation is in accordance with human rights law. As the Parliamentary Joint Committee on Human Rights has explained: "International human rights law allows for reasonable limits to be placed on most rights and freedoms, although some absolute rights cannot be limited. All other rights may be limited as long as the limitation is reasonable, necessary and proportionate to the achievement of a legitimate objective. This is the analytical framework the committee applies when exercising its statutory function of examining bills for compatibility with human rights."

Having an independent, well-resourced INSLM will contribute significantly to this framework, ensuring that Australia's counter-terrorism laws can be independently scrutinised by someone with the expertise and access to information necessary to identify any adverse impacts on human rights and suggest alternative mechanisms for achieving any legitimate legislative ends. I implore Senators to consider the sensible amendments proposed by this bill and the real outcomes that could be achieved by the passage of this bill. The position of Independent National Security Legislation Monitor is a significant one and must be strengthened to ensure the best legislative outcomes possible.

I commend this bill to the Senate.

Senator WRIGHT:  I seek leave to continue my remarks later.

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