Eric Abetz (Tasmania, Liberal Party) Share this | Hansard source

The debate on the Independent National Security Legislation Monitor Amendment Bill 2021 was started some 2½ months ago, and I made some introductory remarks on 2 September, for those interested in following the debate or my remarks. The Independent National Security Legislation Monitor, or INSLM, is an important part of our security framework, providing the necessary checks and balances. The monitor was established some 11 years ago. The bill seeks to update the role from a part-time position, with no staff. The legislation under which the monitor operates clearly needs updating.

This bill has five proposals in it. It is to enable the Independent National Security Legislation Monitor to report on reviews undertaken on their own initiative, or own-motion inquiries, in standalone reports separate to the INSLM's annual reports as currently required. It will clarify the process for an INSLM review following a reference from the Parliamentary Joint Committee on Intelligence and Security. It will clarify the reporting arrangements for statutory reviews conducted by the INSLM with the performance of functions and exercise of powers, and provide current and former staff of the INSLM with appropriate protections in relation to anything done or omitted to be done by that person in good faith in the course of assisting the INSLM in performing functions or exercising power. The INSLM independently reviews the operation, effectiveness and implications of national security and counterterrorism laws. The INSLM considers whether the laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats and remain necessary.

Other countries deal with these matters as well, and that is why I believe the Anderson report of the UK Investigatory Powers Review has something to offer us. In that report it is stated:

Public consent to intrusive laws depends on people trusting the authorities, both to keep them safe and not to spy needlessly on them.

…   …   …

Trust in powerful institutions depends not only on those institutions behaving themselves (though that is an essential prerequisite), but on there being mechanisms to verify that they have done so. Such mechanisms are particularly challenging to achieve in the national security field, where potential conflicts between state power and civil liberties are acute, suspicion rife and yet information tightly rationed.

…   …   …

Respected independent regulators continue to play a vital and distinguished role. But in an age where trust depends on verification rather than reputation, trust by proxy is not enough. Hence the importance of clear law, fair procedures, rights compliance and transparency …

Suffice to say I agree, and the INSLM, the monitor, plays that very important role in our jurisdiction. So it is important that this monitor have the capacity to undertake reviews at his or her own volition, of his or her own motion. Similarly, it allows references from the Parliamentary Joint Committee on Intelligence and Security. Whilst I serve on the committee, I can at least vouch for everybody else that they take their role extremely seriously, as I would like to think that I do mine. It is something that we on the committee seek to balance up each and every time when we look at security legislation, to ensure that we get the balance right, that we protect our fellow Australians from those that would seek to harm us, whilst also ensuring that people's civil liberties are protected as much as possible. In fact, a starting point has to be the protection of individual rights and civil liberties. f they are to be in any way diluted, a very strong case needs to be made for that particular authority to be clothed with that power.

That is why, when from time to time such legislation comes forward, its ongoing necessity or efficacy should be monitored and considered by an independent person such as the INSLM. It's an unfortunate acronym for the person who has that title of monitor, but we all—in this place at least—know of whom we speak. The INSLM needs to review the operations. I think that is something that anybody who is genuinely concerned in this space would like to see. I'm pleased that the parliamentary joint committee has looked into this and supports these proposals and also that the government, importantly, sees the need.

There have been some equivocations in these areas. The previous monitor has recommended:

That the INSLM Act … be amended to provide for an express power for the INSLM to report on a matter or matters within the statutory mandate but more urgently or particularly than by the annual report.

The government has accepted that recommendation. The previous INSLM also made this recommendation:

That the INSLM act … be amended to require a formal response by the executive government to INSLM reports to be tabled in the Parliament within 12 months of delivery of the reports.

Interestingly enough, a further review in relation to all this came to an alternative view, and it's worth reading that in full:

The INSLM considers that 'an important part of the process begun by conducting a review and reporting, is the timely response of the government of the day'. Given the INSLM's ongoing role (compared to a Royal Commission whose role is over once it has delivered its report), the INSLM submitted that it has an interest in considering the implementation of its recommendations.

The Review agrees with public stakeholders that the Government should give appropriate consideration to the recommendations of independent experts. The Government specifically established the role of the INSLM to provide independent, expert analysis to it, and, therefore, should consider that analysis and respond to it in a timely manner.

This is the important part:

However, the Review considers it would be incongruent with the approach to Government responses to parliamentary committee reports to legislate this requirement. There is generally no requirement in legislation for the Government to respond to parliamentary committee recommendations (rather, successive governments have undertaken to respond to parliamentary committee reports, including by way of resolutions).

That is, I think, on page 293 of that particular further review that I understand was undertaken by a Mr Dennis Richardson some time ago. When you have a look at all the competing views, it stands to reason that, with some of these matters that are or aren't in this bill, it's a matter of balance and it's a matter of judgement, and there will be men and women of good faith on both sides who would say that there should be more in this bill or there should be less in this bill.

At the end of the day, we have to come to a landing. We have to make a decision. Ultimately, what the Australian people want us as a government to do and which the Liberal-National government is absolutely committed to do—and which, in fairness, to reach out across the chamber, I am sure those who are in the alternate government would also be committed to do—is to seek to balance the security of our nation and the security of our individual Australians against any security attack whilst also balancing the rights and liberties of our fellow Australians. That is what this legislation seeks to do, with some other machinery provisions. I commend the bill to the Senate.