Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

I take it that no other senators are going to contribute to the second reading debate on the National Security Legislation Monitor Bill 2009 [2010], so I will sum up. To all those who contributed to the debate I would like to extend a thankyou. I would particularly like to thank the members of the Senate Finance and Public Administration Legislation Committee, who conducted an inquiry into the bill in September last year. The report of that inquiry contains many important recommendations. I thank the committee for their work. Shortly I will go into more detail about some of the amendments to the bill that they have suggested.

First, it might be more worthwhile to go to the purpose of the bill. Since 2001 a number of incidents have served to remind us that Australia is not immune to threats of terrorism. Terrorism is a heinous crime and the consequences of a terrorist attack in Australia are likely to be severe, should they occur. Accordingly, Australia now has a highly developed legal framework reflecting the seriousness of terrorism related activity. This framework is and must remain a key component in Australia’s counterterrorism strategy. This legal framework provides Australian law enforcement and intelligence agencies with the appropriate tools to deter, investigate, apprehend and prosecute the perpetrators of terrorism and other threats to national security.

Australia has moved beyond the immediate response phase to the threat of terrorism, following the attacks on 11 September 2001. The government is committed to ensuring that this legal framework is robust enough to adapt to future events and development while incorporating appropriate review mechanisms to ensure the full suite of counterterrorism and national security laws remain necessary and effective. The government recognises the importance of counterterrorism and protecting the rights of all Australians at the same time. Since 2006 a number of inquiries into different aspects of terrorism and national security legislation have recommended the introduction of an independent reviewer to provide comprehensive and ongoing oversight. In a December 2006 report the Parliamentary Joint Committee on Intelligence and Security 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.

More recently, the Hon. John Clarke QC, in his November 2008 report on the case of Dr Mohamed Haneef, recommended that consideration be given to the appointment of an independent reviewer of Commonwealth counterterrorism law. 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.

As Senator Brandis described in his speech in the second reading debate, this notion of an independent reviewer of security legislation was reflected in a private senator’s bill sponsored by Senators Troeth and Humphries and introduced in the Senate in June 2008. An identical bill was also introduced in the House by Mr Georgiou. In October 2008 the Senate Legal and Constitutional Affairs Legislation Committee reported on its inquiry into the private senators’ bill, the Independent Reviewer of Terrorism Laws Bill 2008 [No. 2]. The bill sought to establish an independent reviewer to ensure ongoing and integrated review of the operation, effectiveness and implication of Australia’s terrorism laws. In brief, the committee gave in-principle support to the bill and made five recommendations about possible amendments to the bill. A range of amendments were made and the bill was passed in the Senate on 13 November 2008. It was introduced in the House of Representatives on 24 November 2008.

In many respects, the bill we are considering today reflects the considerable work of both the joint and the Senate committees in drawing attention to and developing proposals to fix a gap in the security legislation identified by both committees, as well as independent reviews of counterterrorism legislation since 2001. I recognise the work of my Senate and House colleagues from all parties on this important issue. To a great extent the bill is the fruit of a properly functioning parliament working at its best. For the bill to succeed it does require the support of the executive in the system of government we have. The previous government was unwilling to provide that support. But where that government was unable or unwilling to act, this government is not.

The bill before us implements the decision announced by the government on 23 December 2008 to establish Australia’s first ever independent reviewer of counterterrorism and national security laws, to be called the National Security Legislation Monitor. It is a significant new position and reflects the times we are living in, where we face the threat of terrorism and where we need laws in place to deal with this threat.

The main purpose of the bill is to ensure that the laws operate in an effective and accountable manner and are consistent with our international obligations, including both human rights and security obligations, and contain appropriate safeguards for protecting individual rights and helping to maintain public confidence in those laws. The role of the monitor will be to review annually the counterterrorism and national security legislation which has been used or considered during the reporting year. As part of this review, the monitor will examine the operation, effectiveness and implications of the legislation and report his or her comments, findings and recommendations to the Prime Minister and, in turn, parliament on an annual basis. As well, the monitor must consider whether Australia’s counterterrorism and national security legislation remains necessary and contains appropriate safeguards for protecting individuals’ rights. The monitor has been given suitable powers to ensure he or she can conduct a thorough review of the legislation.

The government recognises the work performed by the Finance and Public Administration Legislation Committee on the bill. We have taken on board many suggestions made in its report and made amendments to this effect. The committee received evidence from a variety of organisations. The majority of evidence received supported the establishment of the monitor as an important office for improving the operation of terrorism and national security legislation. Typical were the comments made on this by the Federation of Community Legal Centres in Victoria. The federation welcomed the proposal to establish a national security legislation monitor due to the fact that:

The counter-terrorism laws are extraordinary and it is imperative whilst they are in place that they are subject to regular, comprehensive and independent review.

The evidence the committee heard can broadly be grouped into the following headings: ‘the independence of the monitor’, ‘the review referral mechanism’ and ‘the matters to which the monitor must have regard when reviewing legislation and the monitor’s reporting requirements’.

There are some key changes that are worth mentioning which result from the committee’s work. One of the important changes is that the title of the bill will now be the Independent National Security Legislation Monitor Bill. Naturally all references to the monitor contained within the bill will also change to include the word ‘independent’. This change highlights the independent nature of the monitor’s role. The monitor’s functions will be expanded to now explicitly require the monitor to assess whether the legislation being reviewed remains necessary and proportionate to the threat of terrorism and threats to national security.

The monitor’s reporting requirements will also expand to allow the monitor to include in the annual report, as appropriate, referrals from the Prime Minister. For example, the monitor may include how many times the Prime Minister referred a matter to the monitor and what those references related to. Of course, any sensitive information will be excluded from the unclassified version of the annual report, much like the annual reports of the Inspector-General of Intelligence and Security.

The Parliamentary Joint Committee on Intelligence and Security will be able to refer matters relating to Australia’s counterterrorism and national security legislation to the monitor for the monitor to consider reviewing. Although not specified explicitly in the bill, there is nothing to prevent other interested parties referring matters to the monitor as well. The monitor could include in the annual report relevant information about these references.

There are also some minor changes which clarify existing provisions in the bill. The amendments make explicit that the monitor has the power to conduct inquiries on their own initiative into subjects within their functions. It is now made clear that the monitor may consult with the heads of statutory agencies such as the Privacy Commissioner and the Australian Human Rights Commissioner. The bill now also clarifies that Australia’s obligations under international agreements include human rights, counterterrorism and international security obligations.

To reiterate, the Independent National Security Legislation Monitor will ensure that the laws underpinning Australia’s counterterrorism and national security regime remain effective as the threats to Australian national interests evolve. At the same time, the impartial and independent monitor will make sure we strike the right balance between protecting our individual rights and liberties and preventing terrorism.

In conclusion, I would like to thank those who have contributed to the bill who have sought to genuinely improve the bill. The proposals in this bill reflect the government’s commitment to ensure that Australia has strong counterterrorism and national security laws that protect the security of Australia while preserving the values and freedoms that are part of the Australian way of life. I commend the work of the Senate. I commend this bill to the Senate.

Question agreed to.

Bill read a second time.