James Paterson (Victoria, Liberal Party) Share this | Hansard source

I rise to speak on the Independent National Security Legislation Monitor Amendment Bill 2021. I do so as one of the primary customers of the important work done by the office—as the chair of the Parliamentary Joint Committee on Intelligence and Security. At the outset, I want to pick up on a theme of some of the other contributions to this debate so far—in particular, to the last two contributions I listened to, from Senator Molan and Senator Thorpe.

A data point that has been bandied about in this debate is common in debates about national security legislation, and that is to refer to the number of pieces of legislation that have passed in this space. The statistic that Senator Thorpe referred to and Senator Molan echoed was 70 pieces of counterterrorism pieces of legislation that have passed in the last 20 years. Sometimes that number is higher, by incorporating a broader category of all national security legislation; sometimes it's 120 or 130 bills.

I'm not accusing either senator, in this case, of using that in a pejorative sense, but some people say it's almost a problem in and of itself that we have passed so many national security bills in the last 20 years. I think, to the contrary, it reflects the very different operating environment that we now exist in, the very different security environment and the different trends that we are dealing with in terrorism as well as espionage and foreign interference and other threats.

I think it's very important to place that number of bills in context. Yes, that's a large number of pieces of legislation, but included among them are oversight and scrutiny bills that make sure those bills are exercised proportionately and consistent with the law, and we're dealing with one of those today. I haven't done a tally—perhaps I'll ask the hardworking staff at the Parliamentary Library to do this for me—but if you counted the number of Treasury laws amendment bills passed in the last 20 years I suspect it would be a lot more than 120 or 130. I suspect, given that we deal with one almost on a weekly basis in this chamber, it would be in the many hundreds.

What we see in the national security space, which I'll outline in a minute, is a very robust framework of parliamentary oversight, executive oversight and independent oversight of those powers and of those bills, as it should be, because many of them are rights restrictive and we should ensure that the right balance is struck between our liberties and our safety and security. My regret is that that robust oversight framework that we have in the national security space is not replicated more widely in other areas of parliamentary life, that other areas of legislation are not subject to the rigorous scrutiny and oversight that we have in the national security space, because it is not only laws in the national security space which can restrict our rights or which impact on our freedoms or which impose costs on business and community and society; many other laws do that. What we have in the national security space is the gold standard, and we should seek to raise up other areas of public policy to that gold standard of scrutiny.

The Morrison government has consistently displayed a clear commitment to safeguarding Australia and the Australian people by passing many critical pieces of national security legislation, and we saw two of those bills pass through this chamber last night—the Security Legislation Amendment (Critical Infrastructure) Bill and the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill—two very important initiatives to better secure and safeguard Australia against cyber threats in particular and to seek to deal with the problem of unreformed, recidivist, high-risk terrorist offenders whose sentences are expiring and who pose an ongoing risk to the community if they are released.

One of those bills, the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill, actually demonstrates quite powerfully the importance of the INSLM itself, because it was arising out of an INSLM review and INSLM recommendations that the extended supervision order enacted by this parliament last night in that bill was proposed to fill a gap in the legislative framework. The public do often see and are often aware of those new bills and those new powers that are granted to our agencies; however, what they don't always see is that robust oversight and scrutiny process that is applied to these bills that seek to ensure that they are proportionate, that they are targeted and that they are operationally effective for our security agencies.

The Office of the Independent National Security Legislation Monitor is a critical contributor to that framework. It complements the work of the Inspector-General on Intelligence and Security, the PJCIS and the executive oversight to ensure that the significant powers we entrust to our agencies are subject to the scrutiny that you would expect of a liberal democracy which values freedom and the rights of the individual. The monitor is responsible for regularly assessing Australia's national security and counterterrorism laws to ensure they 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. In conducting their reviews, the monitor has access to all relevant material regardless of the national security classification, they can compel answers to questions, and they can hold public and private hearings.

This bill amends the INSLM Act to clarify the reporting arrangements for the monitor and further provides a new pressuring for the engagement of additional staff who can support the vital work of the monitor. These amendments respond to recommendations made by the immediate previous monitor, Dr James Renwick CSC SC, and are particularly important and timely when we consider the breadth and complexity of the national security threats we are responding to in this uncertain time; therefore, the legislation is required and the operational capability is required to meet those threats. These changes will also ensure that the monitor is properly equipped with the right resources to undertake their role and fulfil their obligation to ensure that our counterterrorism and national security legislation remains fit for purpose and also consistent with our international obligations. As it currently stands, the monitor can conduct own-motion reviews on specific legislative matters and must also conduct specific statutory reviews referred to it by the Attorney-General or by the Prime Minister. The Parliamentary Joint Committee on Intelligence and Security can also refer matters to the monitor, which the monitor may choose to take up as an own-motion inquiry.

When this role was established back in 2010 it was envisaged that the monitor would only undertake one review a year. The bill reflects the evolving nature of the role and would allow the monitor to report on own-motion inquiries in stand-alone reports separate to the annual reports authored by the monitor, and clarifies the review and reporting arrangements for statutory reviews, own-motion reviews and reviews conducted after referral from the PJCIS. The office of the monitor is currently supported by three permanent employees of the Attorney-General's Department. This bills provides for formalised arrangements by amending the INSLM Act to allow for the engagement of additional staff, including specialised contractors, to assist the monitor with the exercise of powers, drafting and reviewing of reports and the performance of other functions that are required.

The Attorney-General has made clear that the appropriate conflict-of-interest policies and practices must be developed and implemented to ensure the engagement of appropriate staff, including contractors. This is very important when you consider how critical it is for the office of the monitor to maintain its independence from any agency or organisation that may be affected by or has an interest in a particular inquiry. The Attorney-General has tasked the INSLM to develop that framework to ensure that these amendments can be implemented once passed in this place.

Finally, the bill brings the appropriate protections for current and former staff of the monitor in line with the arrangements for the staff of other statutory oversight office holders, such as the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security. These protections extend only to acts and omissions done by that person in good faith while assisting the monitor in the performance or exercise of their powers.

I want to personally acknowledge the importance of the office of the monitor. As chair of the PJCIS I welcome the insight and depth of knowledge the monitor has been able to provide, which ultimately assists us in our own deliberations, and it is often common for us to make recommendations consistent with those made by the INSLM. There have been four monitors since the inception of the role: Mr Bret Walker SC, the Hon. Roger Gyles AO QC, Dr James Renwick CSC SC and the current monitor, Mr Grant Donaldson SC. I thank each of them for their commitment and their professionalism in their role and pay tribute to their service to the cause of safeguarding Australia's national security interests as well as our individual rights and freedoms.

I commend to parliamentarians and to others who are interested in oversight of our national security architecture a recent special edition of the Australian Law Journal on national security and the law, which was edited by Dr Renwick. For those of you who are a bit more time poor: perhaps a podcast released last week by Professor Rory Medcalf of the National Security College at ANU, which interviewed Dr Renwick about that special edition. It really provides an excellent insight into the role of the INSLM and wider national security policy issues. One of the things Dr Renwick noted was the great value for money that Commonwealth taxpayers got from his time, given that theoretically he was supposed to have spent only 100 days of the year on this role but ended up spending much more. This bill will help address that issue for all current and future monitors.

The government acknowledges and appreciates the monitor's ongoing role in reviewing the proportionality, the operational effectiveness and the implications of our national security and counterterrorism laws. We are committed to ensuring that there is an appropriate oversight framework that ensures that agencies remain accountable and laws remain targeted. The monitor plays a critical role in ensuring the integrity of that framework. This bill underlines that commitment and ensures that the office of the monitor is appropriately resourced and equipped with fit-for-purpose enabling legislation to allow them to exercise their functions and powers effectively. I commend the bill and urge the Senate to support its passage.