Amanda Stoker (Queensland, Liberal Party, Assistant Minister to the Attorney-General) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill, and, on that very subject, I seek leave to move amendments 1 to 7 on sheet ZC104.

Leave granted.

I move:

(1) Schedule 1, page 3 (after line 23), after item 5, insert:

5A Section 9

Before "When", insert "(1)".

5B At the end of section 9

Add:

(2) Subsection (1) does not apply to the Independent National Security Legislation Monitor's performance of his or her functions under sections 29A (special report) or 29B (statutory review report).

(2) Schedule 1, page 3 (before line 24), before item 6, insert:

5C Subsection 11(1)

After "part-time", insert "or full-time".

5D After section 11

Insert:

11A Obligation to fill vacancy as soon as practicable

As soon as practicable after the office of Independent National Security Legislation Monitor becomes vacant, a Monitor or acting Monitor must be appointed under section 11 or 20.

5E Section 14

Repeal the section, substitute:

14 Leave of absence

(1) A full-time Independent National Security Legislation Monitor has the recreation leave entitlements that are determined by the Remuneration Tribunal.

(2) The Attorney-General may grant leave of absence, other than recreation leave, to a full-time Independent National Security Legislation Monitor on the terms and conditions as to remuneration or otherwise that the Governor-General determines in writing.

(3) The Attorney-General may grant leave of absence to a part-time Independent National Security Legislation Monitor on the terms and conditions that the Governor-General determines in writing.

5F Section 15

Repeal the section, substitute:

15 Outside employment

(1) A full-time Independent National Security Legislation Monitor must not engage in paid employment outside the duties of his or her office without the Attorney-General's written consent.

(2) A part-time Independent National Security Legislation Monitor must not engage in any paid employment that conflicts or may conflict with the proper performance of his or her duties without the Attorney-General's written consent.

5G After paragraph 19(2)(b)

Insert:

(ba) if the Monitor is appointed on a full-time basis—the Monitor engages, except with the Attorney-General's written consent, in paid employment outside the duties of his or her office;

5H Paragraph 19(2)(c)

After "if the Monitor", insert "is appointed on a part-time basis—the Monitor".

5J After paragraph 19(2)(c)

Insert:

(ca) if the Monitor is appointed on a full-time basis—the Monitor is absent, except on leave of absence granted under subsection 14(2), for 14 consecutive days or for 28 days in any 12 months; or

5K Paragraph 19(2)(d)

Repeal the paragraph, substitute:

(d) if the Monitor is appointed on a part-time basis—the Monitor is absent, except on leave of absence granted under subsection 14(3), for 7 consecutive days or for 14 days in any 12 months.

(3) Schedule 1, page 4 (after line 3), after item 7, insert:

7AA Subsection 29(5)

Omit all the words after "paragraph (b)", substitute:

to be presented to each House of the Parliament within the earlier of:

(c) 15 sitting days of that House after the day on which he or she receives the report; or

(d) 30 days after the day on which he or she receives the report.

(4) Schedule 1, item 8, page 4 (lines 32 to 34), omit all the words from and including "to be presented" to and including "report", substitute:

to be presented to each House of the Parliament within the earlier of:

(c) 15 sitting days of that House after the day on which he or she receives the report; or

(d) 30 days after the day on which he or she receives the report.

(5) Schedule 1, item 8, page 5 (lines 23 to 25), omit all the words from and including "to be presented" to and including "report", substitute:

to be presented to each House of the Parliament within the earlier of:

(c) 15 sitting days of that House after the day on which he or she receives the report; or

(d) 30 days after the day on which he or she receives the report.

(6) Schedule 1, page 5 (after line 25), after item 8, insert:

9A Subsection 30(6)

Omit all the words after "paragraph (b)", substitute:

to be presented to each House of the Parliament within the earlier of:

(c) 15 sitting days of that House after the day on which he or she receives the report; or

(d) 30 days after the day on which he or she receives the report.

(7) Schedule 1, item 12, page 6 (after line 29), at the end of section 33, add:

(3) A person referred to in subsection (1) may only assist the Independent National Security Legislation Monitor with the written consent of the Monitor, and the Monitor may, in writing, withdraw such consent at any time.

The amendments on sheet ZC104 will ensure appropriate reporting and staffing arrangements for the INSLM. I'll go into a little depth on each of those. The first of those two amendments would clarify that the requirement for the monitor to give emphasis to legislation that has been recently applied or considered does not apply where the monitor is conducting a statutory review or a special report. This requirement is relevant for the monitor's annual reporting function or a decision to undertake an own-initiative review, but it's not required for statutory reviews and special reports because, in a practical sense, those reports could cut across financial years. So it is really a matter of administration and organisation more than anything else.

The second of the amendments would allow the monitor to be appointed on a full-time basis and provide that a new monitor must be appointed as soon as reasonably practicable following the position becoming vacant. When the position was established in 2010, it was envisaged that the monitor would undertake only a single review per year. The role has since evolved, shifting from doing point-in-time assessments through annual reports to engaging in rolling reviews, including referred reviews and statutory reviews that are much more burdensome on the INSLM's time. This amendment would enable the potential for full-time appointments in the future, should such a course be necessary. It would, of course, not affect the current part-time appointment of the current monitor, Mr Grant Donaldson SC, who is appointed until November 2023.

There are a couple of other amendments I will touch on briefly. Amendments (3), (4), (5) and (6) would provide that monitor reports must be tabled in parliament within 15 sitting days or 30 calendar days after receipt of a report, whichever is earlier. At the moment, the requirement is for tabling to occur within 15 sitting days. These amendments are about striking a balance on getting an appropriate time frame for the release of reports.

Amendment (7) would provide that a person may only assist the monitor with the written agreement of the monitor and that the monitor may withdraw that agreement at any time. The purpose of this amendment is to confirm that the monitor has discretion and control in relation to staff who are assisting him or her. To support the staffing provisions to be introduced by the bill, the minister has asked the monitor to develop appropriate conflict of interest policies and practices to provide a framework for the engagement of staff, particularly where the monitor is unable to complete a review without the assistance of an employee of an agency which is either affected by, or has an interest in, a particular inquiry.

I will say a few things about the amendment that I understand will be moved in due course by Senator Patrick, but, for the benefit of the chamber, these are the purposes of the government's amendments to the bill.

(Quorum formed)

Carol Brown (Tasmania, Australian Labor Party, Shadow Assistant Minister for Infrastructure and Regional Tourism) Share this | Link to this | Hansard source

Labor supports the government amendments to the Independent National Security Legislation Monitor Amendment Bill 2021. The shadow Attorney-General approached the Attorney-General with a number of suggestions to improve the bill several months ago. Senator Cash has engaged constructively with Labor on those suggestions and ultimately agreed either in whole or in part to many of the amendments sought by the shadow Attorney-General. Moreover, while two of Labor's suggestions were rejected by the government, in both cases the Attorney-General agreed to workable compromises. I thank the Attorney-General for working with the opposition to improve the bill in the national interest.

In addition to making some minor technical but nonetheless useful 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 will 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. Second, Australian public servants and other 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. Third, the Independent National Security Legislation Monitor Act will be amended to enable the monitor to be appointed on a full-time basis. Labor supports these amendments.

Question agreed to.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (4) on sheet 1424 together:

(1) Schedule 1, page 4 (after line 3), after item 7, insert:

7A After subsection 29(5)

Insert:

(6) The Attorney-General must prepare a response (a government response) to each recommendation, if any, in an annual report given to the Attorney-General under subsection (1).

(7) The Attorney-General must give the government response to the Independent National Security Legislation Monitor within 12 months of the annual report, or the declassified annual report, being presented to each House of Parliament.

(7A) If the Attorney-General considers that the government response contains information of the kind referred to in subsection (3), the Attorney-General must also prepare and give to the Independent National Security Legislation Monitor, at the same time as the government response, a version of the government response which does not contain that information (a declassified government response).

(7B) The Attorney-General must cause a copy of:

(a) the government response; or

(b) if the government response contains information of the kind referred to in subsection (3)—the corresponding declassified government response;

to be presented to each House of the Parliament on the next sitting day of that House after the day on which he or she gives the government response to the Independent National Security Legislation Monitor.

(2) Schedule 1, item 8, page 4 (after line 34), at the end of section 29A, add:

(6) The Attorney-General must prepare a response (a government response) to each recommendation, if any, in a special report given to the Attorney-General under subsection (1).

(7) The Attorney-General must give the government response to the Independent National Security Legislation Monitor within 12 months of the special report, or the declassified special report, being presented to each House of Parliament.

(8) If the Attorney-General considers that the government response contains information of the kind referred to in subsection 29(3), the Attorney-General must also prepare and give to the Independent National Security Legislation Monitor, at the same time as the government response, a version of the government response which does not contain that information (a declassified government response).

(9) The Attorney-General must cause a copy of:

(a) the government response; or

(b) if the government response contains information of the kind referred to in subsection 29(3)—the corresponding declassified government response;

to be presented to each House of the Parliament on the next sitting day of that House after the day on which he or she gives the government response to the Independent National Security Legislation Monitor.

(3) Schedule 1, item 8, page 5 (after line 25), at the end of section 29B, add:

(6) The Attorney-General must prepare a response (a government response) to each recommendation, if any, in a statutory review report given to the Attorney-General under subsection (1).

(7) The Attorney-General must give the government response to the Independent National Security Legislation Monitor within 12 months of the statutory review report, or the declassified statutory review report, being presented to each House of Parliament.

(8) If the Attorney-General considers that the government response contains information of the kind referred to in subsection 29(3), the Attorney-General must also prepare and give to the Independent National Security Legislation Monitor, at the same time as the government response, a version of the government response which does not contain that information (a declassified government response).

(9) The Attorney-General must cause a copy of:

(a) the government response; or

(b) if the government response contains information of the kind referred to in subsection 29(3)—the corresponding declassified government response;

to be presented to each House of the Parliament on the next sitting day of that House after the day on which he or she gives the government response to the Independent National Security Legislation Monitor.

(4) Schedule 1, page 5 (after line 25), after item 8, insert:

8A At the end of section 30

Add:

Government response

(7) The referring Minister must prepare a response (a government response) to each recommendation, if any, in a report on a reference given to the referring Minister under subsection (1).

(8) The referring Minister must give the government response to the Independent National Security Legislation Monitor within 12 months of the report on a reference, or the declassified report, being presented to each House of Parliament.

(9) The referring Minister must cause a copy of the government response to be presented to each House of the Parliament on the next sitting day of that House after the day on which he or she gives the government response to the Independent National Security Legislation Monitor.

(10) If the referring Minister considers that the government response contains information of the kind referred to in subsection 29(3), the referring Minister must also prepare and give to the Independent National Security Legislation Monitor, at the same time as the government response, a version of the government response which does not contain that information (a declassified government response).

(11) The referring Minister must cause a copy of:

(a) the government response; or

(b) if the government response contains information of the kind referred to in subsection 29(3)—the corresponding declassified government response;

to be presented to each House of the Parliament on the next sitting day of that House after the day on which he or she gives the government response to the Independent National Security Legislation Monitor.

Basically, my amendments flow from recommendations that have been made by the INSLM himself, over many different reports, and are spurred on by the Law Council, who were quite concerned about the fact that INSLM makes his reports but then they go to government and he doesn't get a response. I draw the chamber's attention to Dr James Renwick CSC, SC, who in his report No. 6 of December 2018 made reference to a Law Council submission to the PJCIS. He said in his report:

In its submission, the Law Council noted that government responses to INSLM reports, and implementation of recommendations, had been ad hoc. The Law Council recommended that the Independent National Security Legislation Monitor Act 2010 (the INSLM Act) be amended to require 'formal and prompt government response to INSLM reports (for example, within six to twelve month timeframe)'.

The INSLM looked at that and made a similar recommendation. He said:

The question is whether the Law Council's recommendation should be implemented. In my view it should.

He then went on to say that it's an important part of the process of conducting a review to have timely responses from the government. He made a point of distinction between INSLM and a royal commission:

… when the latter has delivered its report it is functus officio: its role is over and it has no role or legal 'interest' in considering implementation of its recommendations.

In contrast, I have an ongoing role which the Parliament has itself provided for, to continue to monitor counter-terrorism and national security laws.

So he is making the point that in order to be able to continue to do his job he expects some form of response from the government.

I will therefore turn to describe my amendments. (Time expired)