Ben Morton (Tangney, Liberal Party, Minister Assisting the Prime Minister and Cabinet) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The government is committed to ensuring the safety and security of all Australians. Australia has a robust national security and counterterrorism framework to ensure that our agencies have the powers they need to prevent terrorist attacks and deal with those who seek to commit them.

These laws need regular assessment to ensure that powers remain appropriate to the current threat environment, and that the objective of protecting national security is balanced against upholding the rights and freedoms of individuals.

The Independent National Security Legislation Monitor, known as the monitor, independently reviews the operation, effectiveness and implications of Australia's national security and counterterrorism laws, ensuring they contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats, and remain necessary.

This bill would amend the Independent National Security Legislation Monitor Act 2010 (INSLM Act) to clarify reporting arrangements for the monitor and provide a framework for the engagement of staff to assist the monitor in its work.

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 international obligations.

Amendments to clarify the Monitor's reporting arrangements

A key function of the monitor is to review Commonwealth counterterrorism and national security legislation and to report on the outcomes of those reviews.

The monitor can conduct 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 (PJCIS) may also refer matters to the monitor, and the monitor may decide to take up the referral as an own motion review.

This bill would amend the INSLM Act to enable the monitor to report on own motion inquiries in standalone reports, separate to the monitor's annual reports, and to clarify the review and reporting arrangements for statutory reviews, own motion reviews and reviews conducted under 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.

Amendments to address the engagement of staff to assist the Monitor

The bill would also provide a framework for 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 those arrangements by amending the INSLM Act to include provisions for the engagement of staff (including contractors) to assist the monitor with the performance of functions and exercise of their powers.

The bill also 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 exercise of its powers.

These protections are similar to arrangements for the staff of other statutory oversight officeholders, such as the Commonwealth Ombudsman, the Integrity Commissioner and the Inspector-General of Intelligence and Security.

Conclusion

The government acknowledges and appreciates the monitor's ongoing role in reviewing the operation, effectiveness and implications of Australia's national security and counterterrorism legislation. If passed, this bill will assist the monitor in the performance of their role, helping to ensure Australia's counterterrorism and national security legislation remains necessary, appropriate and proportionate.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

I rise to speak in support of the Independent National Security Legislation Monitor Amendment Bill 2021, which was introduced into the Senate and then amended following negotiations between the Attorney-General and me. I thought the original bill introduced by the Attorney-General into the Senate was good legislation. However, when the Attorney-General contacted me to seek Labor's support, I took the opportunity to suggest a range of improvements which, in Labor's view, would make the bill even better. To her credit, the Attorney-General engaged constructively with me and my office on those suggestions and ultimately agreed to many of the amendments we suggested, either in whole or in part.

Moreover, while she did not agree to two of Labor's suggestions, in both cases the Attorney-General did agree to workable compromises. I would like to the thank the Attorney-General for working with the opposition to improve the bill in the national interest.

The Independent National Security Legislation Monitor was established by the Rudd Labor 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 remain effective, are 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 government sought to abolish the monitor completely in 2014. Then, when Labor's opposition and a public backlash forced the government to abandon the 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 has ever introduced with the words 'independent national security legislation monitor' in the title was the bill to abolish the office. Labor welcomes the fact that the government appears to have developed at least some appreciation for the important role that the monitor plays.

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. Currently, there is 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 from the annual report. The bill would also amend the act to 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 a referral from the intelligence and security committee.

Finally, the bill amends the act to 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 those 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 of 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 one time.

In addition to making some minor technical changes to the Independent National Security Legislation Monitor Act, the amendments agreed between the government and Labor in the Senate would do the following. First, the tabling requirements for reports to 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 other potential employees can only be made available to the independent monitor 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.

I commend the bill to the House.

Ben Morton (Tangney, Liberal Party, Minister Assisting the Prime Minister and Cabinet) Share this | Link to this | Hansard source

I thank my parliamentary colleague for his contribution to the debate on the Independent National Security Legislation Monitor Amendment Bill 2021. This bill reflects the government's ongoing commitment to ensuring Australia has a robust national security and counterterrorism framework. It will assist the Independent National Security Legislation Monitor in the performance of their role, helping to ensure Australia's counterterrorism and national security legislation remains necessary, appropriate and proportionate. The bill implements the recommendations made by the former monitor in the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community to allow the monitor to report on matters more urgently or particularly than in the annual report. The additional amendments moved by the government will ensure appropriate reporting and staffing arrangements for the Independent National Security Legislation Monitor, ensuring they can effectively execute their important oversight role. I thank my colleagues across the chamber for their support for these measures.

Question agreed to.

Bill read a second time.