Thursday, 2 September 2021
Independent National Security Legislation Monitor Amendment Bill 2021; Second Reading
Labor support the Independent National Security Legislation Monitor Amendment Bill 2021, and we'll also be supporting the amendments circulated by the government. The Independent National Security Legislation Monitor was established by the Rudd government in early 2010 under the Independent National Security Legislation Monitor Act 2010. Labor created the Independent National Security Legislation Monitor to review and report on the operation and effectiveness of Australia's national security and counterterrorism laws. Since then, the monitor has produced a number of significant reports recommending improvements to a range of counterterrorism and national security laws. The monitor helps to maintain the confidence of the Australian people in our security and intelligence agencies by ensuring that our laws are effective and fit for purpose and contain appropriate safeguards for protecting the rights of individuals. The position is modelled on a similar institution in the United Kingdom which has operated successfully for two decades.
Shamefully and foolishly, the current Liberal-National government sought to abolish the monitor completely in 2014, and then, when Labor's opposition and a public backlash forced the government to abandon that plan, the government sought to achieve the same objective by leaving the position vacant for over eight months. Indeed, prior to the introduction of this bill, the only bill this government had ever introduced with the words 'Independent National Security Legislation Monitor' in the title, was the bill to abolish the position. Labor welcomes the fact that the government appears to have developed at least some appreciation for the important role that the monitor plays.
The current Liberal-National government's initial strident opposition to and eventual embrace of the Independent National Security Legislation Monitor followed a familiar pattern. When the Hawke government introduced legislation in 1986 to establish the first parliamentary committee to oversee Australia's intelligence services, the then Deputy Leader of the Liberal Party expressed outrage. He declared that the then Labor government's modest proposal for parliamentary oversight gave one 'very grave doubt about whether they are loyal to this country'. I'm not making that up. The Liberal Party essentially accused the Hawke government of treason for establishing modest parliamentary oversight of Australia's security agencies. How times change! The parliamentary committee established by the Hawke government in 1986 is now called the Parliamentary Joint Committee on Intelligence and Security. Those opposite now claim to support the work of that committee, rarely missing an opportunity to laud its important work even as, in more recent times, the Morrison government ignores many of its recommendations.
When the Hawke government introduced legislation—also in 1986—to establish the Inspector-General of Intelligence and Security, the Liberals expressed what the then shadow Attorney-General, John Spender, described as 'real reservations'. While the then Liberal opposition did not oppose the establishment of the Inspector-General of Intelligence and Security outright, they did move amendments to significantly water down the role of the inspector-general. For example, the Liberals expressed horror at the thought of the inspector-general having the power to investigate acts or practices of an intelligence agency that are or may be inconsistent with human rights. Indeed, the then shadow Attorney-General described such a power as 'rationally inexplicable' and moved amendments to remove it from the inspector-general. Thankfully, those amendments failed. Now here we are, 3½ decades later, and those opposite now claim to support the work of the Inspector-General of Intelligence and Security. It is now very common to hear Liberal members of parliament, including ministers, cite the broad nature of the inspector-general's powers approvingly, arguing that because of the breadth and nature of those powers Australians can have confidence that our intelligence agencies are acting appropriately and consistently with human rights. How times change! Like the Parliamentary Joint Committee on Intelligence and Security and the Inspector-General of Intelligence and Security, the Independent National Security Legislation Monitor is now an important and valued component of Australia's national security architecture, and Australia is better for it.
Against that background, let me turn to the bill itself. The bill would amend the Independent National Security Legislation Monitor Act to expressly empower the monitor to report on own-motion inquiries and statutory reviews at any time and in standalone reports. There is currently no express provision allowing the monitor to prepare and give to the Attorney-General a report on own-motion inquiries or statutory reviews sooner than or separately to the annual report. The bill would also expressly empower the monitor to report on a referral from the Parliamentary Joint Committee on Intelligence and Security at any time, either in the monitor's annual report or in a standalone report. While the act currently allows the committee to refer an inquiry to the monitor, it is silent on reporting on a referral from the intelligence and security committee. Finally, the bill would provide a framework for the engagement of staff, including contractors, to assist the monitor in the performance of his or her functions or the exercise of his or her powers.
Under the Independent National Security Legislation Monitor Act, the monitor is protected from any legal action in relation to acts or omissions done in good faith and in the performance of his or her functions. As part of the proposed framework for the engagement of staff, the bill would extend these protections to staff of the monitor. The monitor has sought these amendments for some time, particularly the amendments to clarify how and when reports may be provided to the Attorney-General.
In his report on the comprehensive review of the legal framework of the national intelligence community, former ASIO Director-General Dennis Richardson also recommended that the Independent National Security Legislation Monitor Act be amended to provide that the monitor may prepare and give to the Attorney-General a report on any matter relating to the performance of the monitor's functions at any time.
While Labor largely supports the bill in its original form, the shadow Attorney-General contacted the Attorney-General several weeks ago suggesting further amendments to the Independent National Security Legislation Monitor Act. To her credit, the Attorney-General engaged constructively with Labor on those suggestions and ultimately agreed to many of the amendments sought by the shadow Attorney-General, either in whole or in part. Moreover, while two of Labor's suggestions were rejected by the government, in both cases the Attorney-General agreed to workable compromises. I'd like to thank the Attorney-General for working with the opposition to improve the bill in the national interest.
In addition to making some minor technical changes to the Independent National Security Legislation Monitor Act, the amendments agreed between the government and Labor would do the following. First, the tabling requirements for reports by the independent monitor would be amended so that reports must be tabled within the earlier of 30 calendar days or 15 sitting days of receipt by the Attorney-General. This will ensure that reports by the monitor will be made public much sooner than is currently the case. Secondly, Australian public servants and potential employees can be made available to the independent monitor only with the monitor's agreement, and that agreement can be revoked at any time. It is important that the monitor is independent and is seen to be independent of the government. That is the principle that this amendment is designed to uphold. Thirdly, the Independent National Security Legislation Monitor Act will be amended to enable the monitor to be appointed on a full-time basis.
Labor will be supporting this bill and the amendments circulated by the government