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
I rise to speak on the Independent National Security Legislation Monitor Amendment Bill 2021. The Morrison government's commitment to ensuring the safety and security of all Australians has been clearly demonstrated in the past fortnight with the range of legislative measures that have been placed before us and have been through this place. In the years since 2001, Australia's national security framework has had to undertake a number of robust transformations to evolve with the rapidly changing and complex security environment, as events over the past couple of weeks in Afghanistan have shown us.
The starting point of the action within Afghanistan was the terrorist attacks in 2001, the anniversary of which is coming up next week. It takes me back to that time. I was living in the United States during the September 11 attacks. It was a horrific time for both that nation and nations that share friendships with the US. With yesterday having been the 70th anniversary of the ANZUS treaty between the US and Australia, I think it's timely that we stop and reflect on the changes to the security of our nation and of all nations at this time.
As I said, in the years since 2001 Australia's national security framework has had to undertake a number of robust transformations to evolve with the rapidly changing and complex security environment. Significant advances have been made since 2001 to create greater interoperability between our various agencies and to ensure that we approach our national security framework with a holistic and all-encompassing approach. There is no doubt that the security of our nation is this government's and this parliament's highest priority. A robust national security and counterterrorism framework needs to ensure that our agencies have the powers they need to prevent terrorist attacks and combat those who seek to do us harm. As we know from various events, including some involving grey-zone tactics over recent years, those attacks aren't stopping. There may not have been, in recent times, examples of religious extremism, bombings in parts of Australia or other horrific acts of terrorism, but there has been an enormous amount of cyberactivity that's targeted Australia and Australians. So our agencies need to be able to protect us against all those that seek to do us harm.
The Independent National Security Legislation Monitor plays a vital role in Australia's overarching national security framework. It is responsible for regularly assessing Australia's national security and counterterrorism laws to ensure that they remain appropriate to the current threat environment, no matter how evolving that threat environment can be, and that the objective of protecting national security is balanced against upholding the rights and freedoms of individuals. This bill amends the Independent National Security Legislation Monitor Act 2010 to allow the monitor to report on its own inquiries in standalone reports; to clarify the reporting arrangements for the monitor following statutory reviews or referrals from the Parliamentary Joint Committee on Intelligence and Security; and to provide a framework for the engagement of staff to assist the monitor. The bill implements recommendations made by the former monitor and by the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community, which, I am pleased to say, the government has accepted. The amendments will assist the monitor in the performance of their role and, as a result, will help ensure Australia's counterterrorism and national security legislation remains proportionate and consistent with Australia's national obligations.
A key function of the monitor is to review the Commonwealth counterterrorism and national security legislation and to report on the outcomes of those reviews. The monitor can conduct its own-motion reviews on specific matters and must conduct specific statutory reviews and reviews on matters referred by the Attorney-General or the Prime Minister. The Parliamentary Joint Committee on Intelligence and Security, the PJCIS, may also refer matters to the monitor, and the monitor may decide to take up the referral as its own-motion review. This bill would amend the Independent National Security Legislation Monitor Act to enable the monitor to report on its own inquiries in standalone reports, separate to the monitor's annual reports. This will help clarify the review and reporting arrangements for statutory reviews, own-motion reviews and reviews conducted after a PJCIS referral. This responds to recommendations made by the former monitor, Dr James Renwick CSC SC, and by the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community.
As I said before, these amendments will also help to address the engagement of staff to assist the monitor. The monitor is a part-time, statutory appointment. When the position was established in 2010, it was envisaged that the monitor would only undertake one review a year. Since then, the role has evolved, including through an increased number of statutory reviews of various legislation. The monitor is now supported by three permanent employees of the Attorney-General's Department, whose services have been made available to assist the monitor, as well as legal representatives who are engaged in relation to specific reviews. This bill would formalise arrangements by amending the Independent National Security Legislation Monitor Act to include provisions for the engagement of staff, including contractors, to assist the monitor with the performance of functions and the exercise of powers.
The bill provides current and former staff of the monitor with appropriate protections for any acts or omissions done by that person in good faith during the course of assisting the monitor in the performance of its functions or the exercise of its powers. These protections are similar to arrangements for the staff of other statutory oversight office holders, such as the Commonwealth Ombudsman, the Integrity Commissioner and the Inspector-General of Intelligence and Security.
I commend this bill to the Senate, but we need to look at why our agencies need it. Since September 2014 Australia's law enforcement agencies have disrupted 18 major terrorist attack plots and 128 people have been charged as a result of 59 counterterrorism related operations around Australia, and 52 terrorist offenders are currently behind bars for committing a Commonwealth terrorism offence. That's an enormous number, and it's an enormous number of Australians who could have been put in harm's way without the great work of our law enforcement agencies. So, to help boost those security agencies, we've passed 23 tranches of national security legislation. These are helping our intelligence and law enforcement agencies to investigate, monitor, arrest and prosecute extremists. The government has boosted funding for our law enforcement, intelligence and security agencies by over $2 billion since 2014. Recent legislation that was passed by the parliament means a person who is a dual national can cease to be an Australian citizen if they act in a way that is inconsistent with their allegiance to Australia. This includes engaging in terrorism related conduct, fighting for a declared terrorist organisation outside of Australia or being sentenced to at least three years for specified terrorism offences. Twenty people have lost their Australian citizenship through terrorism related actions.
When we are passing laws such as the one that's before us right now, we are countering not only terrorism but also the radicalisation that can drive it. Since 2013-14 the coalition government has allocated more than $61 million to programs for countering violent extremism, including more than $13 million for intervention programs. This takes in all forms of violent extremism, not just religious violent extremism. There is no place in Australia for people who decide to come here and do harm to Australians. We have increased the minister's power to cancel visas of noncitizens convicted of a serious crime. This has resulted in a 12-fold increase in visa cancellations. Between December 2014 and November 2020, the government cancelled or refused visas for over 8,500 dangerous criminals. This includes 209 for murder, 404 for rape or sexual assault, 684 for the most heinous of crimes—child sex crimes—468 for armed robbery and 1,461 for drug offences.
As we talked about before—and I'm on the relevant Senate select committee—in addition to addressing national security we also have to look at how we tackle foreign interference. Legislation to strengthen Australia's capacity to defend against foreign interference was passed in 2018. It criminalises covert and deceptive activities of foreign actors, requires people to register if they engage in lobbying on behalf of a foreign principal and creates a register of critical infrastructure assets. The recently passed Australia's Foreign Relations (State and Territory Arrangements) Act gives the Australian government the power to veto agreements struck by state and local governments and universities with foreign countries. I was very pleased to see, in my home state, that the Victorian Belt and Road Initiative agreement between the People's Republic of China and the Andrews Victorian state government was struck down. With that, I commend this bill to the Senate.
[by video link] I am not going to say very much on this other than that I absolutely support the role of the independent monitor. It's a really crucial role. It is a role that has been filled by number of eminent QCs and SCs. We have had Bret Walker, the Hon. Roger Gyles, James Renwick, who has recently moved on from the position, and of course Mr Grant Donaldson SC, who is the incumbent at the present moment.
The Independent National Security Legislation Monitor Amendment Bill 2021 follows recommendations from Mr Renwick in relation to some constraints around reporting. What surprises me, however, is that the government appears as if it is not going to support my amendment. I hope that is not the case. The amendment that I will seek to move during the committee stage—and I won't talk then; I will talk now—basically places a requirement on the government to respond to any report that's got a recommendation. Whether it is an annual report, special report or statutory report, if it has a recommendation then it requires the Attorney-General to respond to that within 12 months and to lay on the table that response. It provides provision for having an unclassified version, if that were to be considered necessary. It seems a pretty obvious thing that ought to happen—a report is written, recommendations are made and then they're considered and not left open for a number of years.
What this flows from is exactly that problem—that many of the reports and recommendations that have been made by the independent monitor have largely been ignored or not addressed by governments. If the independent monitor makes a recommendation and the government doesn't like it, that's fine. It can respond accordingly, saying what's wrong with it and everyone can have a look at that and criticise it or congratulate the government for coming to whatever conclusion it might have. But simply not responding to it is not sufficient. It is just a basic principle. I hope when we get to the committee of the whole that I will see people supporting that particular amendment.
[by video link] The Independent National Security Legislation Monitor Amendment Bill 2021 is an important piece of legislation that the parliament is quite right to consider at this time. On the 70th anniversary of our alliance with the United States and a few days away from the 20th commemoration of 9/11, it is appropriate for us to reconsider the Independent National Security Legislation Monitor legislation which was passed some 11 years ago. The role of the monitor is to see whether our legislative framework remains appropriate for the current threat environment and whether we are achieving the objective of protecting our national security whilst also—and this is very important to me—upholding the rights and freedoms of individuals. That is a balancing act that is so important.
When this legislation first started some 11 years ago, the monitor was a part-time position, there was no real staffing support and there was only a requirement for an annual report to the parliament. This legislation suggests that the monitor should be able to, of their own volition, hold inquiries and also take referrals from the Parliamentary Joint Committee on Intelligence and Security, on which I have the privilege of serving, as well as from the Attorney-General. These are very important developments as we continue to evolve and adapt ourselves to the ever-changing security environment. The first task of government, at all times, is to ensure the security of our nation and our borders and the internal protection within the borders of our peoples. This is just part of the overall framework, which is just so vitally important. I note the time, Madam Acting Deputy President, and understand I will soon be required to conclude. You are undoubtedly telling me that now. I seek leave to continue my remarks.