Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

I present the explanatory memorandum to the bill and I move:

That this bill be now read a second time.

This bill implements the decision, announced by the government on 23 December 2008, to establish the position of the National Security Legislation Monitor.

The independent National Security Legislation Monitor will review and report on the operation, effectiveness and implications of counterterrorism and national security legislation on an ongoing basis.

The government’s aims in establishing the monitor are, firstly, to ensure that the laws which Australia has enacted or enhanced since 11 September 2001 to specifically address the threat of terrorism or security related concerns operate in an effective and accountable manner and, secondly, that these laws are consistent with Australia’s international obligations, including our human rights, counterterrorism and international security obligations. We all remain hopeful that one day there will be a time when the threat of terrorism will diminish and make these laws no longer necessary, and on that basis we hope the monitor will also be able to consider the extent to which our counterterrorism and national security laws remain necessary.

This bill puts in place a mechanism for the regular review of Australia’s counterterrorism and national security legislation and will provide for greater public confidence in the operation of those laws. One way it does this is through the monitor considering if the laws contain appropriate safeguards for protecting individuals’ rights.

The proposals in this bill reflect the government’s commitment to strong counterterrorism laws that protect the security of Australians, while at the same time preserving the values and freedoms that are part of the Australian way of life.

Since 2006 a number of inquiries into different aspects of our terrorism and national security legislation have recommended the introduction of an independent reviewer to provide comprehensive and ongoing oversight. In its report of December 2006 the Parliamentary Joint Committee on Intelligence and Security (PJCIS) observed:

The Independent Reviewer, if adopted, will provide valuable reporting to the Parliament and help to maintain public confidence in Australia’s specialist terrorism laws.

That report was essentially bipartisan. In his November 2008 report on the case of Dr Mohamed Haneef, the Hon. John Clarke QC recommended:

… consideration be given to the appointment of an independent reviewer of Commonwealth counter-terrorism laws.

The Clarke report supported:

… the notion of ensuring that the system is balanced between the need to endeavour to prevent terrorism and the need to protect an individual’s rights and liberties. An independent reviewer could play an important part in striking this necessary balance.

The United Kingdom has an independent reviewer of terrorism laws, currently a position held by Lord Carlile of Berriew QC, who conducts regular reviews into different aspects of the United Kingdom’s counterterrorism legislation, including the Terrorism Act 2000 and the Prevention of Terrorism Act 2005. I indicate before this parliament the tremendous support Lord Carlile has provided to us in considering and discussing issues and assisting us to form a view as to the appropriate model for Australia.

Like the United Kingdom model, the role of the monitor will be undertaken by one person who will be expected to be independent from the current administration of the counter-terrorism legislation. In line with the Senate Finance and Public Administration Legislation Committee’s recommendations, the inclusion of the word ‘independent’ in the title of the office and in the title of the bill has more than simply symbolic value. It reflects the notion of independence as fundamentally important to the position of the monitor. Although the bill does not formally require the monitor to be a lawyer, the monitor must have sufficient experience in the criminal law and be of high standing in the community. In recognition of the importance of this appointment, the bill requires that before a recommendation on appointment is made to the Governor-General the Prime Minister must consult with the Leader of the Opposition. That will be done.

In order to bring clarity to the monitor’s role and function, the counter-terrorism and national security legislation within the scope of the monitor’s consideration is outlined in the bill, as recommended by the Senate Standing Committee on Legal and Constitutional Affairs in its inquiry in October 2008 into similar legislation to establish an independent reviewer of terrorism laws.

The bill provides the framework within which the monitor can review the relevant legislation. The monitor may also initiate his or her own investigations or the Prime Minister may refer a matter to the monitor to review within a specified time frame.

Turning to the functions of the monitor, the monitor will be required to review the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation, which primarily includes the legislation which has been specifically enacted to counter terrorism and related security threats. However, the monitor is also given the ability to review other Commonwealth legislation, such as general Commonwealth criminal legislation, to the extent that it relates to Australia’s counter-terrorism and national security legislation. The monitor’s functions also require the monitor to consider whether Australia’s counter-terrorism and national security legislation contains appropriate safeguards for protecting the rights of individual citizens. As well, the monitor must consider whether these laws remain proportionate to any threat of terrorism or the threat to national security or both and whether they remain necessary to protect Australians from the threat of terrorism and terrorism related activity. Recognising the valuable contribution to the bill made by the Senate, the monitor is also specifically required to assess whether Australia’s counter-terrorism or national security legislation is being used for matters unrelated to terrorism or national security.

When reviewing Australia’s counter-terrorism legislation, the monitor must give particular emphasis to that legislation which has been used or considered in the current and previous financial year. This will ensure not only that the monitor reviews those laws as they have been applied in practice but also that the monitor’s resources are used effectively and wisely with respect to current circumstances.

In reviewing the legislation, the monitor must have regard to Australia’s international obligations, as I have mentioned, including human rights obligations, counter-terrorism obligations and international security obligations as well as the agreed national counter-terrorism arrangements between the Commonwealth, states and territories.

The monitor must report his or her comments to the Prime Minister on an annual basis. The bill, as amended by the Senate, now requires the monitor to produce both a classified and a declassified version of the annual report. Edited as necessary on the grounds of operationally sensitive, national security classified or cabinet information, that declassified annual report will be laid before each house of parliament and will therefore be available for parliamentary and public scrutiny.

In response to the Senate committee’s recommendation, the bill has been 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 monitor. The monitor would only be able to examine matters referred by the PJCIS if they are within the monitor’s functions. The monitor would not be compelled to act on the committee’s reference and the monitor would retain discretion in dealing with any reference provided by the committee. This would ensure that the monitor’s resources would be effectively used and the monitor would be able to report back to the PJCIS references in the annual report.

To ensure the monitor can conduct a thorough review of legislation, a provision has been made for the monitor to have access to national security classified documents and operationally sensitive information if that information is required for the proper performance of his or her functions.

The bill provides the monitor with the power to compel the giving of sworn testimony. Further, the monitor has the power to hold both public and private hearings if a person is giving evidence that discloses operationally sensitive information. In addition, the monitor has the power to summon a person and to compel the production of documents and things. These powers are supported by criminal offences for conduct in the nature of contempt. In the performance of his or her functions, it is expected that the monitor will have regard to the functions and roles of other oversight and accountability agencies and those agencies that have functions relating to the implementation of Australia’s counter-terrorism and national security legislation.

The bill enables the monitor to liaise with other key bodies, such as the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman, the Human Rights Commissioner, the Privacy Commissioner and the head of any Commonwealth, state or territory agency. The role of the monitor will complement the role of the Inspector-General of Intelligence and Security and other oversight bodies, but it will not duplicate their roles.

The bill also contains a number of standard miscellaneous and administrative provisions. The bill provides for the monitor’s terms and conditions of appointment, remuneration and allowances, leave, the possibility of outside employment, disclosure of interests, resignation, termination of appointment and acting arrangements. It goes without saying that heavy emphasis is also placed on the need for the monitor to safeguard appropriately and maintain the operationally sensitive information or national security classified documents entrusted to him or her.

A new independent review mechanism will ensure that Australia’s laws underpinning Australia’s counter-terrorism and national security regime are effective as the threat to Australia’s national security interests evolve. Importantly, the impartiality of the monitor, as envisaged in this bill, will strike a necessary balance between the need to prevent terrorist activities from threatening Australia’s way of life and the need to protect our individual rights and liberties.

The debate about establishing in Australia an independent reviewer of counter-terrorism laws is not new. This bill represents implementation of bipartisan recommendations, as I have indicated, of the Parliamentary Joint Committee on Intelligence and Security, Mr Clarke’s inquiry into the case of Dr Mohamed Haneef and the Sheller committee of 2006. I also commend some individual members who have personally agitated for the establishment of this office. The calls to establish this role have now been answered and I commend this bill to the House.

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