Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to 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.

Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice and Customs) Share this | Link to this | Hansard source

One of the most profound consequences of the terrible terrorist acts of 11 September 2001 was the need for governments around the world to assess their capability to deal with the new and frightening threat of international terrorism. In many cases there was a need for the introduction of domestic legislation to try and deal with the new challenges as they appeared. In Australia, as elsewhere, this meant quite a large amount of legislation which tried to address this problem while still providing a balance between the protection of the rights that we all treasure and the civil liberties that we take for granted and the need for public and national security. It is up to governments to make a judgment about what the right balance is. They have to strike a balance between individual rights and the provision of national security, which is of course increasingly demanding. It is not an easy balance to strike, and clearly that balance is open to debate. We have seen that extensively in this chamber with other bills of this type.

Terrorism is a profound challenge to this society and to many others, and we should never make the mistake of underestimating how serious that threat is. The Australian public are entitled to expect that their government will do all it can to provide for their personal security and the national security. That is what I believe much of the legislation that has been introduced in Australia does. It seeks to provide that level of security and confidence that we can meet the kinds of challenges with which we are confronted. There is plenty of evidence in relation to the success we have had in meeting these challenges. That said, governments need to be cautious about the way we act. It is in this context that the opposition welcomes the Independent National Security Legislation Monitor Bill 2010.

I now want to move to the specific provisions of the bill. The central purpose of this legislation is the creation of a safeguard, an independent reviewer, to ensure that Australia’s counter-terrorism legislation is effective but also contains appropriate safeguards to protect the rights of individuals in our society. This is not a new idea. As the Attorney mentioned in his speech, the office of the Independent Reviewer of Terrorism Laws has been in place in the United Kingdom for quite some time. The bill, or at least the concept it adopts, has its origins in the reports of the Sheller committee and the Parliamentary Joint Committee on Intelligence and Security in 2006, which were themselves informed by the regime that applies in the United Kingdom.

It is also worth mentioning—and the Attorney neglected this in his speech—that in March 2008 the member for Kooyong moved to introduce a private member’s bill to appoint an independent reviewer of terrorism laws. But that motion was gagged by the government. Similar legislation was introduced in the Senate, by Senators Troeth and Humphries, in November 2008. It was passed in the Senate but it failed in the House. The government’s bill in many respects resembles the arrangements in force in the UK, as applied by the Independent Reviewer, Lord Carlile. However, there are important differences. The bill comes with a series of amendments which the coalition will support. These amendments make the bill resemble the member for Kooyong’s bill in almost every respect, and much more so than the initial version of the government’s bill.

It is almost two years since the manager of government business marshalled the numbers to quash the member for Kooyong’s initiative, although quietly within this bill the government have adopted most of his policy as their own. The key difference between the government’s original bill and the regime proposed by the coalition is the notion of independence. In keeping with the approach of the Rudd government, the bill in its initial form required that the monitor be subject to the direction of the executive—personified by the Prime Minister. Any ad hoc inquiry would have been subject to prime ministerial approval. Any report deriving from it would be both secret—there having been in the initial bill no provision for tabling—and subject to executive micromanagement. These provisions, following the recommendations of the Senate Finance and Public Administration Legislation Committee, have now been abandoned by the government. The government’s amendments address the coalition’s concerns raised in the committee and restore independence, which is essential to the concept of this office. The coalition will therefore be supporting the amendments and, with carriage of the amendments, this bill, which for practical purposes is our own.

The principle behind this bill is protective. It is to add to the armoury of parliamentary surveillance another mechanism designed to ensure that the counter-terrorism laws, which were amended so as to expand the executive and policing powers of the state in extraordinary times by introducing into our laws exceptional measures, are not allowed to become ordinary measures with the passing of time. The government and the parliament were of the view that some traditional protection should be reviewed and that the policing functions of the state should be extended through such devices as preventive detention orders and control orders, which of course were controversial at the time. It was done in the service of the fundamental obligation of this government and of all parliaments—that is, to protect the public interest.

Those of us who remember those debates also remember that the government which introduced them, the previous Howard government, made it clear at the time that these were extraordinary measures. This bill introduces an Office of the Independent Monitor, which we expect will bring an objective and detached mind to the question of both the functionality of the laws and the necessity for their continuance. This can only be beneficial and it has proven to be beneficial in other jurisdictions. Subject to the amendments I have just foreshadowed, the coalition supports the passage of this bill.

Arch Bevis (Brisbane, Australian Labor Party) Share this | Link to this | Hansard source

We live in times when, in a democracy, the security of a nation such as ours requires laws which are not customarily considered appropriate in our society but which nonetheless are necessary to ensure the safety of the population. Since 11 September 2001, that has become a dramatic reality for far too many people around the world and certainly for Australian citizens. The Independent National Security Legislation Monitor Bill 2010 does have bipartisan support and it should enjoy that bipartisan support. It is sound legislation which enhances the oversight of the antiterrorism laws that are necessary in our land.

I was a bit taken aback by some of the contributions of the shadow minister, the member for Stirling, when he spoke just then and, in particular, his reference—in part accurate—to the private member’s bill moved by the member for Kooyong. I was not going to make reference to that, but I think it is worth pointing out, given the contribution we have just heard from the shadow minister, that as with so many other things that we now deal with those opposite had control of this parliament and, indeed, control of both chambers of this parliament to put through any legislation their party room wished without the need to negotiate with minor parties in the Senate. For part of that time, they had an absolute majority. At any time during the last eight or nine years of their office, they could have introduced legislation of the kind that was referred to in the private member’s bill.

Frankly, most commentators and, I think, most people in this parliament saw that manoeuvre for what it was. It was a political manoeuvre. It was a political stunt. In saying that, I do not for one minute say that those who spoke to it, supported it or moved it did not believe in it. Indeed, I think the member for Kooyong does believe in it. He would have been in a very small minority in the Howard government in seeking to pursue that. The Howard government had no desire at the time it had the opportunity to enact this sort of legislation. So to try and make some cheap political point, as the shadow minister did just then, is I think twisting the history a little bit too much. This bill is a good bill. We do not need to play the sorts of games that the shadow minister just sought to play in his contribution.

Let us look at the importance of this legislation. Reference has been made to the work of the Parliamentary Joint Committee on Intelligence and Security in the course of the previous parliament and deservedly so. A good deal of the issues dealt with in this legislation arise from it and the committee has a very well deserved name and respect in this parliament for the quality of the work it does and the bipartisan way in which it goes about looking at matters of this kind. It is a bit alarming to look at the attitude, though, which was adopted back in 2006 when the committee took evidence in its review of the legislation.

During the committee’s hearings in August 2006, officers of the Attorney-General’s Department indicated to the committee’s inquiry that reviews of all of the terrorism legislation were not being planned. No doubt that was the instruction from the government of the day. However, that clearly was not a view that the committee in 2006 regarded as acceptable. As a result, the committee proposed the appointment of an independent reviewer of terrorism laws, based on much the same model as the reviewer in the United Kingdom. In its report in December 2006, the committee said:

To date, post enactment review has been sporadic and fragmented with a focus on specific pieces of legislation rather than the terrorism law regime as a whole. This has limited the opportunity for comprehensive evaluation and highlights the need for an integrated approach to ensure ongoing monitoring and refinement of the law, where necessary.

That stands in stark contrast to the actual policy of the former Howard government, but I am delighted that, in opposition, they have changed their position on this and I am delighted that this bill is before the parliament with bipartisan support.

The independent National Security Legislation Monitor will have an important function in advising government and, through government, the people of Australia about the suitability of our antiterrorism laws. That will enable somebody with a different perspective—a well-qualified but different perspective—to provide advice which can be considered. Ultimately, it is a matter for the parliament whether the legislation should be changed and whether the parliament believes it has got the settings right. However, in matters of this kind, when legislation is being considered which impinges upon civil liberties and rights of individuals and which in the past would not have been agreed to by parliament, in those sorts of areas it is important that we have available to us as legislators a wide range of good quality advice. Having an independent office such as this will for the first time provide that advice for our consideration and, importantly, it will for the first time provide a new set of eyes not just, as the committee in 2006 noted, looking at parts of bills that may be before the chamber but looking at the totality of the various pieces of legislation that together make up our national security legislative framework.

The independent National Security Legislation Monitor will have the function to review on his or her own initiative the operation, effectiveness and implications of Australia’s counter-terrorism and national security laws and any other law of the Commonwealth to the extent that it relates to Australia’s counter-terrorism and national security legislation. As the current Chair of the Parliamentary Joint Committee on Intelligence and Security, I welcome this development. I think it will enhance the collective knowledge and ensure as best we can that we do have effective legislation which provides for the safety of Australian citizens with the safeguards we expect to be in place to protect our civil liberties.

I am also pleased that the bill makes provision for the Parliamentary Joint Committee on Intelligence and Security to refer matters to the independent legislation monitor. I think that is a very useful addition to the processes of oversight in this parliament. Of course, the work of the monitor, as important as it is, is still different to the work that we, as members of the parliament, are engaged in. It will still be an important function of the Parliamentary Joint Committee on Intelligence and Security to itself review the legislation, both bills before the parliament at any point in time and the existing legislation dealing with counter-terrorism related matters. The committee, as it has in the past, will continue to look at those bills and the legislation and, where it thinks it appropriate, will make recommendations to government, the parliament or both about changes that the committee thinks are warranted.

I am also pleased to see the principle of bipartisanship embodied in the appointment of this office. As with the Inspector-General of Intelligence and Security, the Governor-General will make an appointment of the person to fill the role of the Independent National Security Legislation Monitor, but first the Prime Minister is required under the bill before us to consult with the Leader of the Opposition in the House of Representatives. That is a thoroughly appropriate mechanism. Many people who are listening to or interested in this debate may well think that has always been the case; it has not. It is a result of reviews conducted by previous Labor governments and royal commissions. It reminds me that this bipartisan consultation about the appointment of these officers is fundamental to the public confidence in the work of these intelligence agencies and, in particular, the work of those who supervise the intelligence agencies.

In days not that far past, when this bipartisan consultation did not occur, we also did not have effective oversight by parliamentary committees. In the days before the inspector-general we had situations in which intelligence agencies were responsible to nobody other than the ministers of the Crown to whom they reported. If you have a look at those decades in which that was the case, there was a situation where the agencies, left to their own devices, not surprisingly got up to all sorts of things secretly that the Australian public, and I suspect even the parliament of the day, would not have sanctioned. We know this because there were royal commissions. Some of those earlier royal commissions have now been made public after the 30-year rule, and they do not paint a very flattering picture of the activities of some of those organisations. Not only were they incompetent in many respects in the discharge of their core responsibilities but they clearly strayed from their core work and were engaged in a raft of other activities that were unsuitable.

Thankfully, following a couple of royal commissions about a decade or so apart and the actions of this parliament in establishing oversight bodies, such as the inspector-general, the parliamentary committee and now this independent legislation monitor, we have a greater degree—I think a very high degree—of confidence in the community about the work of these agencies. I have made the comment to some of those involved in the agencies that, whilst this review process is no doubt a bit of a pain in the neck for our intelligence community from time to time, it is a heck of a lot better than letting them have free rein for 10 years and then ending up having a royal commission that publicly dismembers them limb by limb and rebuilds them from the ground up. If you go back over a 25- to 30-year period through the sixties, seventies and eighties, you actually find that was pretty much the way things happened. That is not good for anybody. It is not good for the security of Australia, because the work these agencies do is very important. It is certainly not good for governments of the day, because security of the people is one of the most important responsibilities that any government, irrespective of politics, has before it.

It is important that governments are confident that the work they need to have done is being done effectively and within the remit that has been given to them. We have seen examples in the past where government has introduced legislation, ostensibly as a result of the threat of terrorism, which has not been well received in the community, has not been well supported by all of the state and territory governments and indeed has not been supported by the Senate. My mind goes back to the legislation introduced not long after 9-11 in 2001. The legislation that was introduced during that period was extremely controversial. I doubt that many people would recall the provisions of the actual bills that were introduced by the government at the time, but they were referred to the Parliamentary Committee on Intelligence and Security, then chaired by David Jull, a person for whom I have a great deal of respect. That committee did an outstanding job in reviewing that legislation and made a number of recommendations for substantial change to the bills that were introduced by the government of the day. Amazingly, even though many of those recommendations were not immediately endorsed by the then Attorney-General or then Prime Minister, subsequent to their passage through the parliament both the Attorney-General and the Prime Minister were on the record in speeches inside or outside of this parliament acknowledging the improvements that had been made by that parliamentary review process.

As I said earlier, that parliamentary review process is important and the Parliamentary Joint Committee on Intelligence and Security will continue to undertake that function. I warmly welcome the creation of this independent monitor. I think it is a significant improvement in the way in which we calibrate our counter-terrorism laws to make sure that they are as a whole taken together, that they are effective in protecting Australian people and that they impinge upon the basic principles of liberty upon which our democracy is founded only to the extent that is necessary. I commend the bill to the House.

Debate interrupted.