Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Owing to the time commitments of the coalition spokesperson on this matter, I want to move amendments out of the order in which they are listed on the running sheet. I seek leave to move Australian Greens amendments (15) to (18) together.

Leave granted.

I move:

(15)  Clause 29, page 18 (after line 10), after subclause (2), insert:

     (2A)    If the National Security Legislation Monitor considers that the annual report contains information of the kind referred to in subsection (3), the Monitor must also prepare and give to the Prime Minister, at the same time as the annual report, a version of the report which does not contain that information (a declassified annual report).

(16)  Clause 29, page 18 (line 11), omit “The annual report must not contain”, substitute “The information specified by this subsection is information of the following kind”.

(17)  Clause 29, page 19 (lines 3 to 16), omit subclauses (4) to (7), substitute:

        (4)    In determining whether an annual report contains information of the kind referred to in subsection (3), the National Security Legislation Monitor may consult the responsible Minister or responsible Ministers concerned.

        (5)    The Prime Minister must cause a copy of:

             (a)    each annual report; or

             (b)    if an annual report contains information of the kind referred to in subsection (3)—the corresponding declassified annual report;

to be presented to each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report.

(18)  Clause 30, page 19 (after line 28), at the end of the clause, add:

        (4)    If the National Security Legislation Monitor considers that a report to the Prime Minister under subsection (1) or (3) contains information of the kind referred to in subsection 29(3), the Monitor must also prepare and give to the Prime Minister, at the same time as the report, a version of the report which does not contain that information (a declassified report).

        (5)    In determining whether a report contains information of the kind referred to in subsection 29(3), the National Security Legislation Monitor may consult the responsible Minister or responsible Ministers concerned.

        (6)    The Prime Minister must cause a copy of:

             (a)    each report under subsections (1) and (3); or

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

to be presented to each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report.

I did speak about the intent of this block of amendments yesterday in my speech on the second reading. They relate to the crucial issue of the reporting requirements of the monitor and what will actually make its way into the public domain as a result of the establishment of this office which, as I indicated yesterday, the Australian Greens certainly support.

Insufficient parliamentary debate and deliberation of the antiterrorism laws is one of the major contributing factors to the need for the creation of this office in the first place. The Greens believe that it is essential that the annual reports of the reviewer are provided to the parliament and not vetted in advance by ministers, including the Prime Minister. Such editing as is necessary to remove operationally sensitive information should be undertaken by the monitor’s office. We need to trust that this office will be competent to undertake that sort of work. We are not in the business of exposing operationally sensitive information to the public domain. It is obviously not the intention here. But it should be the monitor rather than the executive that edits these reports prior to them being tabled in parliament. If we are to build public confidence in the independence of this reviewer, and if we are to believe that the government truly intends this office to be independent and we are to seriously consider and act upon their advice, then surely we can trust the judgment of this person appointed to consult so thoroughly and then to have judgment enough not to have to be vetted in the fashion proposed by the government.

There are a number of amendments here that relate not only to the tabling of the annual report but also crucially to the tabling of reports of individual investigations of the monitor. It was recognised by the unanimous report of the Senate Finance and Public Administration Legislation Committee, when we investigated this bill, that we could see nothing as a result of the annual work of this important office but a three-page photocopy of a report covered in white-out from the Prime Minister’s office. I am probably overstating the case a bit, but there is nothing at all preventing very little from making its way into the public domain as a result of the operation of this office.

This block of amendments effectively does two things. Firstly, it makes sure that the annual reporting obligations are coming directly from the office of the monitor rather than via the Prime Minister’s office and, secondly, it makes sure that the operational reports of the monitor, also in similarly edited fashion with operationally sensitive matters removed, are tabled in parliament. It is absolutely essential that, at the very minimum, these reporting obligations are placed on the monitor so that we can have confidence in the work that is being undertaken. I commend Australian Greens amendments (15) to (18), at the bottom of the running sheet, to the chamber.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition supports Greens amendments (15) to (18). The essential difference between the bill introduced into this chamber by Senator Troeth and Senator Humphries last year and the bill in the form in which it arrives in the chamber now in the hands of the government is the extent to which this statutory officer is a creature of the parliament and an officer whose function is one of report and advice to the parliament. In the form that the government’s bill originally took, the officer would be an officer who reported to the Prime Minister. The government has conceded, after the Senate Finance and Public Administration Legislation Committee reviewed the matter, that there should be some limited reporting function to the parliament as well. But, at the moment, that is only the annual report.

Under section 7 of the act when it is enacted, one of the most important functions of the National Security Legislation Monitor is to deal with matters referred to him by the Prime Minister either at the monitor’s suggestion or on his or her own initiative. Reports on references under section 7 of the act at the moment are not required to be tabled in the parliament. The monitor’s only reporting obligation is the annual reporting obligation. That seems to the opposition—we agree with Senator Ludlam in relation to this—to be a massive constraint on the parliament’s right to know and to inform itself of issues which the monitor might identify as being of concern. Remember what the purpose of this officer is. The purpose of this officer is to address from time to time the sufficiency, effectiveness and, if necessary, the potential for overreach of the legislation which is within his jurisdiction. So, peculiarly, this is an officer whose conclusions will be something the parliament is interested in knowing.

For the reasons you, Mr Temporary Chairman Trood, so eloquently expressed yesterday afternoon, it is entirely appropriate and consistent with the philosophy and, indeed, the rationale of this legislation that the parliament be informed of the monitor’s conclusions on individual references, not merely be the recipient of an annual report as to his functions.

It will always be objected in cases like this that issues of operational sensitivity or national security cannot be ventilated in the public domain. This is an issue that arises in relation to all reporting by all national security agencies and it is simply dealt with by redacting from the report that is presented to parliament sensitive or operational material. The amendments (15) to (18) that Senator Ludlam, on behalf of the Australian Greens, has moved provide for that. If there is sensitive or national security information included in the report on a reference, then a redacted report will be produced to the parliament only. There is no issue of compromise to or imperilment of national security by these measures. This is the way the legislation in the United Kingdom works, which is the legislative model which has inspired this bill.

Mr Temporary Chairman, for the reasons expressed by Senator Ludlam and for the reasons expressed by you yesterday afternoon, the opposition is persuaded to agree with recommendation 12 of the unanimous report of the Senate Finance and Public Administration Legislation Committee on this legislation and to support these amendments.

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

It seems that in terms of these amendments from the Greens the numbers are not on my side and, in response, we will not be dividing on this issue. The government will take these amendments away and have a look at that particular issue. At this point in time what is vitally important is that we do get the monitor in place so that an independent monitor is there to ensure that the work can proceed. On that basis, rather than argue for or against the amendments, I would like to take the opportunity to have a better look at the provisions of these Greens amendments.

The Senate committee did a significant amount of work to ensure that this legislation met the approval of the Senate. On behalf of the government I did take on board many of the recommendations of the Senate committee to ensure that we could get the independent monitor up and running as soon as possible. I think it is a valuable role, to provide an overview of the antiterrorism legislation, particularly since that legislation has been in place for some time. It is a matter that was also raised during the initial inquiry under the previous government, in 2006—that there should be an independent monitor. So I will not get stuck on some of the detail. I understand the numbers in this place and I will take on board the suggestions by the Greens and have a second look at them to see if we can get everyone’s approval.

Question agreed to.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank Senator Brandis and the chair, Senator Trood, for working together with us on this one. I now move—again moving up the running sheet, if that is okay—Greens amendment (4) on sheet 5904:

(4)    Clause 6, page 6 (line 22), at the end of subclause (1), add:

   ; and (e)    to assess whether Australia’s counter-terrorism or national security legislation is being used for matters unrelated to terrorism and national security.

The amendment relates to the ability of the monitor to assess whether the laws are operating as they should, as they were intended to, or whether in fact some form of ‘scope creep’ is occurring—for example, permitting undue surveillance of legitimate and peaceful demonstrators. The secrecy that surrounds the operationalisation of these laws means that they are vulnerable to misuse and abuse. Government amendment (6) does actually insert the possibility for the reviewer to assess the proportionality and necessity of the laws, and we appreciate the government moving that amendment; we will be supporting them. The Greens believe that there is merit in including explicit reference to the possibility of laws being used for matters unrelated to terrorism.

Senators will have heard me refer to these sorts of matters in the chamber and also in estimates committees. It is not simply a preoccupation with the defence of climate change activists or peace activists and so on, although obviously they are causes very dear to my heart. It is about looking at it from the point of view of these agencies which are provided with enormous budgets and operating capacity to protect Australians from violent crime and from attacks by international terrorist organisations. I am very concerned that these agencies not waste their time, effectively, following around people who may or may not have a banner in their backpack. This is something that I took up with the ASIO Director-General, who did not realise that operatives of ASIO were following around climate change protesters who were dropping banners. They were not even trespassing but outside power stations. It is with regard to that kind of waste of resources that we can give the monitor a useful role in assessing whether this kind of scope creep is occurring—whether these antiterrorism laws are being used for purposes other than those for which they were intended. It is a very simple amendment, inserting some language to effectively make sure that the counterterrorism or national security legislation is not being used for matters unrelated to terrorism and national security. I commend this amendment to the Senate.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition support this amendment. It seems to us to flow logically from the scheme of clause 6 of the bill, given that the rationale for the establishment of this officer is to keep an eye on the operation and effectiveness of counterterrorism legislation and national security legislation. One of the matters which the legislation requires the officer to always have in mind is the question or the possibility of overreach, so amendment (4) proposed by the Greens seems to us to be entirely within that purpose—that is, whether the legislation is being used for an inappropriate or collateral purpose. I suspect it probably was not necessary to spell this out, given the amplitude of the language of clause 6(1) of the bill. Nevertheless, to make it clear that this is one of the purposes for which this officer is created by this legislation, the opposition sees the sense in having this spelt out specifically in the act.

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

It does seem we are having a difficulty today with the numbers in this place! The proposed provision, as in subclause (e), could be somewhat dependent on the success of Greens amendment (3), but—

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

It may well have to be renumbered.

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

Yes, it may very well be. Senator Brandis makes a very good suggestion that it may need to be renumbered. In any case, from the government’s perspective, the spirit of the Greens amendment has been picked up by government amendment (6) relating to proportionality, as recommended by the Senate committee at recommendation 11 of its report, which in the government’s view renders this test redundant. But I do recognise that, with the support of the opposition, it is going to be a difficult matter. I will not call a division on this. As I have indicated, the government is keen to get the independent monitor in place; it has a valuable role. I will have another look at that particular issue as well.

Question agreed to.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Mr Temporary Chairman, I am seeking your guidance. Those were the amendments I was seeking to have dealt with out of order. Do you want us to return to the top of the running sheet and work our way down? If that is the case, we will move to government amendments, otherwise I will keep moving through our amendments.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

If it assists the committee, I indicate that the Greens amendments which have been passed with the support of the opposition so far are the only Greens amendments which the opposition will be supporting. We will be, I assume, joining with the government in opposing the balance of the Australian Greens amendments. Whether that has consequences in terms of the running of the committee for the taking of the government amendments before the balance of the Greens amendments I am not sure, but I indicate that that is the opposition’s mind in relation to the balance of the Greens amendments.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

Thank you, Senator Brandis. It seems to me that we ought to proceed in order. We will start at the top of the sheet. I call the minister to move the government amendments.

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

What I might do is speak to all of the government amendments in the interests of time and then have them dealt with separately if that is permissible by the Chair. So, rather than seek leave to have them dealt with all together, I will talk to them all and then we can put them separately and see how they run from there.

Government amendments (1) to (10) on sheet BD213 that deal with clauses 3 and 8 make it clear that Australia’s national security legislation is consistent with both Australia’s human rights obligations and our international security and counterterrorism obligations. I think this is a matter that Senator Trood did raise. Perhaps in part rebuttal to Senator Trood’s contribution on this point in the second reading debate—Mr Temporary Chairman Trood, you might be interested in this—our security as a nation depends in part on cooperation and information sharing with our allies around the world and a multilateral approach to globalised threats such as terrorism, money laundering, drug trafficking and people smuggling. It also depends on the application of justice and the rule of law and a harmonious society at home that can only be secured by respect for liberty and the rights of the individual. The government believes our international commitments in these regards are worth consideration in any worthwhile objective assessment of the law. The alternative is to apply a somewhat blinkered approach, assessing our laws in blissful ignorance of the transnational context that in fact does exist across the globe in many of the areas that I have mentioned.

Amendment (1) implements recommendation 10 of the committee’s report. It makes clear that the monitor will ensure that Australia’s national security legislation is consistent with both Australia’s human rights obligations and our international security and counterterrorism obligations. Amendment (10) also implements recommendation 10 of the committee’s report and clarifies that Australia’s obligations under international agreements include human rights, counterterrorism and international security obligations.

In addition, government amendments (2), (5) to (9), (14) and (15) relate to functions of the monitor specifically. Amendment (2) on sheet BD213 inserts the proposed definition of the ‘Committee on Intelligence and Security’ to mean the joint parliamentary standing committee of that name established under the Intelligence Services Act 2001. Amendment (5) on sheet BD213 implements recommendations 5 and 7 of the committee’s report and makes explicit that the monitor has the power to conduct inquiries on his or her own initiative on subjects within his or her function. It is a belt and braces approach but it ensures that it is clear for the monitor to operate on.

Amendment (6) implements recommendations 5 and 11 of the committee’s report. It allows Australia’s counterterrorism and national security legislation and any other law of the Commonwealth to the extent that it relates to these laws to be assessed against the principle of proportionality. This ensures the monitor can assess on his or her own initiative whether the legislation being reviewed remains proportionate to the threat of terrorism and the threats to national security as well as whether the legislation remains necessary. Amendment (7) implements recommendation 6 of the committee’s report. It makes clear that the monitor could perform his or her function if the parliamentary Joint Standing Committee on Intelligence and Security refers matters relating to Australia’s counterterrorism and national security legislation to the monitor.

Amendment (8) amends the heading to clause 7 to make it clear that this clause refers to references by the Prime Minister to the monitor. Amendment (9) also implements recommendation 6 of the committee’s report. It provides that the parliamentary committee may refer matters that it becomes aware of in the performance of its functions to the monitor and the monitor can consider reviewing. It provides that it would be a function of the committee to refer relevant matters to the monitor. The monitor would retain, of course, discretion over his or her work. The monitor would be able to report on the PJCIS reference in the annual report. It is worth considering that the committee does have and can play a very important role in this. It is a significant role that is being asked of them. I do expect that they will meet that well.

Amendment (14) replaces the heading to clause 30 to make it clear that this report relates to references made by the committee. Amendment (15) makes explicit that the monitor must report to the Prime Minister on a reference made by the committee.

If we are following the running sheet, I have now dealt with the first and second government amendments and the Greens have the next three on the running sheet. It depends whether any of those are subject to the next three government amendments. If they are not, I will continue. I may need advice from the Clerk as to whether we should stop at that part and deal with those now and then proceed further. I could take a nod from the clerk or the chair.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

Minister, I think it is preferable to deal with this group of your amendments now. I understand you have an explanatory memorandum, which you might care to table.

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

by leave—I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill, which was circulated in the chamber on 19 November 2009, and move those amendments I have spoken to, (1) to (15) on sheet BD213:

(1)    Clause 3, page 2 (lines 12 and 13), omit paragraph (c), substitute:

             (c)    is consistent with Australia’s international obligations, including:

                   (i)    human rights obligations; and

                  (ii)    counter-terrorism obligations; and

                 (iii)    international security obligations; and

(2)    Clause 4, page 2 (before line 18), before the definition of counter-terrorism and national security legislation, insert:

Committee on Intelligence and Security means the Parliamentary Joint Committee on Intelligence and Security established under the Intelligence Services Act 2001.

(3)    Clause 4, page 4 (after line 6), after the definition of head, insert:

National Security Legislation Monitor means the person appointed in accordance with section 11.

(4)    Clause 4, page 4 (lines 26 and 27), omit the definition of National Security Legislation Monitor.

(5)    Clause 6, page 6 (line 9), after “review”, insert “, on his or her own initiative,”.

(6)    Clause 6, page 6 (lines 15 to 19), omit paragraph (1)(b), substitute:

             (b)    to consider, on his or her own initiative, whether any legislation mentioned in paragraph (a):

                   (i)    contains appropriate safeguards for protecting the rights of individuals; and

                  (ii)    remains proportionate to any threat of terrorism or threat to national security, or both; and

                 (iii)    remains necessary;

(7)    Clause 6, page 6 (after line 22), after subclause (1), insert:

     (1A)    If a matter is referred to the National Security Legislation Monitor by the Committee on Intelligence and Security, the Monitor may perform the function set out in paragraph (1)(a) or (b) in relation to the matter.

(8)    Heading to clause 7, page 7 (line 4), omit the heading, substitute:

7  References to the National Security Legislation Monitor by the Prime Minister

(9)    Page 7 (after line 11), after clause 7, insert:

7A  References to the National Security Legislation Monitor by the Committee on Intelligence and Security

        (1)    The Committee on Intelligence and Security may refer to the National Security Legislation Monitor a matter that the Committee:

             (a)    becomes aware of in the course of performing its functions under subsection 29(1) of the Intelligence Services Act 2001; and

             (b)    considers should be referred to the Monitor.

        (2)    It is a function of the Committee on Intelligence and Security to refer the matter to the National Security Legislation Monitor.

(10)  Clause 8, page 7 (lines 16 and 17), omit paragraph (a), substitute:

             (a)    Australia’s obligations under international agreements (as in force from time to time), including:

                   (i)    human rights obligations; and

                  (ii)    counter-terrorism obligations; and

                 (iii)    international security obligations; and

(11)  Clause 10, page 8 (lines 13 and 14), omit paragraph (2)(a).

(12)  Clause 10, page 8 (after line 16), after paragraph (2)(c), insert:

           (ca)    the Human Rights Commissioner; or

           (cb)    the Privacy Commissioner; or

           (cc)    the head of an agency established by a law of the Commonwealth or of a State or Territory; or

(13)  Clause 29, page 18 (lines 4 to 7), omit subclause (1), substitute:

        (1)    The National Security Legislation Monitor must prepare and give to the Prime Minister a report (an annual report):

             (a)    relating to the performance of the Monitor’s functions as set out in paragraphs 6(1)(a) and (b); and

             (b)    containing such details relating to the performance of the Monitor’s function as set out in paragraph 6(1)(c) as the Monitor considers appropriate.

(14)  Heading to clause 30, page 19 (line 19), omit the heading, substitute:

30  Report on a reference by the Prime Minister

(15)  Clause 30, page 19 (line 21), at the end of subclause (1), add “made under section 7”.

Chair, I suggest we deal first with amendments (1) and (10), (2), (5) to (9) and (14) to (15).

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Chair, I am just checking to see whether there is the opportunity to speak to these amendments.

The Temporary Chairman:

There is indeed, Senator Ludlam.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I would just like to indicate the Australian Greens support for the government amendments that have just been moved by Senator Ludwig. They arise I think entirely from the recommendations of the Senate Finance and Public Administration Legislation Committee inquiry, in which I participated. We believe that in some regards they do not go far enough to meeting the recommendations of the committee, but I will comment on those as we come to debate the Greens amendments that are further down the running sheet. But I would just like to indicate that I appreciate that the government sought to heed the work that that committee had done. It was valuable work. It incorporated feedback from some of the best minds in the country who have spent a lot of time thinking about or actually operating within this legal environment in the court system. I think the amendments that have come from the government do go some way towards fulfilling some of the unanimous recommendations that the committee made on the way through, so I just indicate at this point that we will be supporting these amendments.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

The question is that government amendments (1) and (10) on sheet BD213 and amendments (2), (5) to (9) and (14) and (15) on sheet BD213 be agreed to.

Question agreed to.

The Temporary Chairman:

Senator Ludlam, it might be convenient if you were to move the next group of amendments standing in your name.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1) and (5) and (6) to (14) as they relate to essentially the same issues of the constitution of the monitor’s office:

(1)    Clause 4, page 4 (lines 26 and 27), omit the definition of National Security Legislation Monitor, substitute:

National Security Legislation Monitor means:

             (a)    in Division 2 of Part 2, other than in subsection 11(1)—any one of the three members who constitute the panel appointed in accordance with section 11;

             (b)    elsewhere in this Act—the panel of three members appointed in accordance with section 11.

(5)    Clause 11, page 9 (line 4), after “Monitor”, insert “is to comprise a panel of three members, each of whom”.

Amendments 6 to 14 are consequential upon amendments (1) and (5)

(6)    Clause 11, page 9 (lines 7 to 14), omit “the National”, substitute “a National” (wherever occurring).

(7)    Clauses 12, page 9 (lines 18 to 21), omit “The National”, substitute “Each National” (twice occurring).

(8)    Clause 13, page 9 (line 24), omit “The”, substitute “Each”.

(9)    Clause 13, page 9 (line 26), omit “the”, substitute “each”.

(10)  Clause 13, page 9 (line 28), omit “The”, substitute “Each”.

(11)  Clause 14, page 10 (line 4), omit “the”, substitute “each”.

(12)  Clauses 15 to 18, page 10 (lines 8 to 22), omit “The National”, substitute “Each National” (wherever occurring).

(13)  Clauses 19 and 20, page 11 (lines 2 to 24), omit “the National”, substitute “a National” (wherever occurring).

(14)  Clause 20, page 11 (lines 26 to 28), omit “the Monitor”, substitute “a Monitor” (twice occurring).

What these amendments seek to do is act on recommendations that came through very strongly during the original inquiry of the legal and constitutional affairs committee into Senator Troeth’s private senator’s bill which I participated in and which foreshadowed the debate we are having now. During that inquiry it came through very strongly from a number of witnesses that, rather than a single part-time independent reviewer, what was required was a panel of three to create some diversity of opinion and background in the make-up of the office. The issue was discussed at great length. The conclusion that we came away with was that a diversity of experience on the panel would allow for a more rigorous process in what will actually be an arduous workload. We are tasking this office with an enormous workload of monitoring of past and ongoing law reform efforts in this crucial area of counterterrorism legislation. We felt that a panel of three would be able to undertake this workload supported by a secretariat or a small staff much more effectively than, as is the government’s proposition, a single part-time officer.

The UK does have a single appointee in this role, but in my view the committee’s inquiry was provided with compelling reasons as to why we in Australia could improve on the UK model rather than just following it in every instance. I think there is less risk of the office of the monitor being perceived as an advocate for Commonwealth laws, which I think is really very important, if we get three reviewers with diverse backgrounds and relevant expertise. Given the number of new antiterrorism laws, the discussion paper that was tabled by the Attorney-General last year and the sheer number of these laws on the statute books, I think there is more than enough on which a panel of reviewers might report. If there were three reviewers I think their appointment could conceivably be part time, but, as I said during the second reading debate, a single part-time reviewer is more or less completely inadequate for the task at hand.

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

The Greens amendment proposes that a panel of three be appointed, as Senator Ludlam has argued. The role of the monitor as it currently stands in this bill means that a single-person monitor can operate flexibly to review legislation. The difficulty surrounding the role of a three-person monitor—although it would be a plural, I guess, as proposed by the Greens—is that it would add complexity and possible cost to the role in terms of coordination required for the role to operate successfully, and I think Senator Ludlam has not articulated particularly what the actual discernible benefit or improvement would be. Having three people in the role does not in and of itself add importance or prominence. It simply adds another two persons, which can add complexity and of course there is the question of how they would then operate as a three-person panel. None of that detail seems to have been made clear in the scheme proposed by the Greens.

I would also note that this proposal by the Greens was not canvassed in the report of the Finance and Public Administration Legislation Committee on the bill, even in the Greens’ additional comments. I stand to be corrected on that. It seems to have been a later thought. The difficulty around the scheme is that the panel cooperate by a majority verdict or unanimous court. We may end up finding split decisions and no mechanism within the legislation to deal with that eventuality. The idea of an independent monitor, following the work of the Sheller review and looking at experiences overseas—particularly from the UK—is that the force and prominence which a single person can bring to look at legislation comes with its own merit. The person should be clearly prominent, have the ability to operate flexibly and have the ability to examine legislation without the complicating factor of another two persons also doing similar work across the field.

The challenge in these amendments is that none of the detail is supplied. The Greens proposal in the current form is not in a fit state to be adopted in the Committee of the Whole and be genuinely workable, in the government’s view. The amendments would fundamentally alter the role and operation of the monitor and perhaps even the nature of their function as well. For these reasons, the government cannot support Greens amendments (6) to (14). In addition, it is always open for senators to push their wheelbarrow on certain issues in this chamber. I do think, upon reflection, Senator Ludlam, it is ill-considered. I do not mean to direct that at you personally. It is a matter that I think, upon reflection, you might not want to proceed with. But I will leave that with you.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

It is interesting to hear an amendment referred to as a ‘wheelbarrow’. As I said in my opening comments, this was canvassed at quite a great deal of length during the original Standing Committee on Legal and Constitutional Affairs inquiry into Senator Troeth’s private senator’s bill. We moved these amendments partly, as I said in my comments before, for diversity of opinion and background but also, as I indicated, there is a resourcing question. We are tasking this to a part-time commissioner—who will undoubtedly be very well qualified but who will nonetheless be part time and have other unrelated responsibilities—with, I believe, two staff from within the Prime Minister’s department. Can the minister tell us what process the government or the Attorney has in mind for reviewing workload constraints on this office and whether he seriously believes that an office of this size will be able to undertake the functions that we are tasking it with, as we pass this legislation? The questions, to be a bit more direct, are these. How has the government assessed that an office of this size will be sufficient to undertake this work? What process of review do you expect to occur from time to time? What reporting will there be to the parliament as to whether this office actually has the resources that it needs?

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

Perhaps the easiest way to explain this would be to refer to the independent inspector of intelligence, which currently operates in one such small office—if I could call it that—which acts in this area. It has reporting obligations. Clearly, within this proposed bill there are reporting obligations for the monitor. Also, there are annual reports and the budget process to deal with matters that might arise within the small office. Senator Ludlam, there are three estimates rounds a year, during which you can check how the monitor is operating in terms of their resourcing and how they are finding their work and their workload. I am sure that you will use that opportunity to engage with the monitor on those issues. Of course, as I indicated, the annual report and the budget process are the usual and normal processes of government to ensure that agencies—particularly small agencies or in this instance the monitor—are properly resourced. The bill does provide the appropriate framework for the monitor to operate within, and the government is satisfied that the monitor will be able to competently and effectively carry out the tasks that have been provided to the monitor.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Minister—through you, Chair—you can be very confident that I will be pursuing those matters exactly during estimates committee hearings and through other avenues that are available. I wonder, before we put these amendments, whether you can confirm for us that the monitor will in fact be able to be present during estimates hearings or whether it is envisaged that he or she will be represented by an officer of the department.

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

I think the short answer is yes.

Question negatived.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (2) and (3) on sheet 5904 together:

(2)    Clause 6, page 6 (line 19), at the end of paragraph (1)(b), add:

          and (iii)    is consistent with Australia’s international obligations, including human rights obligations;

(3)    Clause 6, page 6 (line 22), at the end of subclause (1), add:

        ; and (d)    if a matter relating to Australia’s counter-terrorism or national security legislation is referred to the Monitor by the Australian Human Rights Commissioner—to report on the reference.

These amendments relate to an issue we have touched on already this morning, going to how the monitor relates to our human rights obligations internationally. I would like to acknowledge that the government has come some way towards meeting the recommendations of the committee. There has been very strong evidence put forward that—as I think the minister put it, to paraphrase—we cannot assess the way these laws are operating in a bubble or in isolation from the obligations that Australia has under international human rights instruments. It is extremely important that these laws are benchmarked against exactly those obligations. One longstanding criticism of the way antiterrorism legislation works in Australia, given the diversity of the different statutes that are involved, is that it is entirely in some form offensive to our human rights obligations. It is inconsistent in many regards. That is part of the reason why people have expressed such longstanding concerns about the operation of the laws.

With due recognition of the fact that the government has come some way towards meeting these concerns, I am moving these amendments to ensure that the bill accords with one of the amendments to Senator Troeth’s bill of 2008 and a principle that was supported very strongly through two committee inquiry processes to date, which is that these laws are not merely in the objects that the government has proposed or in the amendments we have just supported but that the functions of the review contain explicit reference to Australia’s human rights obligations.

Greens amendment (3) provides for the Human Rights Commissioner to be able to make references to the monitor. I think the way the government sees it is that those references are inappropriate and that in fact the monitor is welcome to consult with the Human Rights Commissioner as, I suppose, he or she is welcome to consult with anybody. We think that, as references can come from the Parliamentary Joint Committee on Intelligence and Security or from the Prime Minister’s office, given the importance of human rights in these matters, the monitor should be able to receive a reference from the Human Rights Commissioner.

So we are not seeking to do anything really outside the existing ambit of the monitor but merely to provide one further avenue of matters to be raised and brought to the monitor’s attention. Given the Human Rights Commissioner’s expertise in these sorts of matters, we felt that they should be utilised to the full. That is the intention of those two amendments.

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

The government does, surprisingly, support the intention of the Greens amendments, although I say very early that we are not going to support the two amendments. Amendments (1) and (10) having been moved by the government earlier this morning make these amendments a little moot, but to the extent that we have included not only the national human rights obligations but also our international security and counterterrorism obligations within the legislation it would be unbalanced to consider only one set of obligations and not the other. So the government has made provision for both.

As the amendments before us address only one half of the equation, the government does prefer its own amendment. I think you would be taking away one-half of all of our obligations if we were to support this amendment but, in moving these amendments, you do recognise that there are not only human rights obligations but also international security and counterterrorism obligations. With that, we prefer our amendment.

Amendment (3) means that the monitor could take references from the Human Rights Commissioner. The government amendments on this matter are in fact wider than those suggested by the Greens and present a more complete description of those the monitor can consult with. So the government remains resolute in supporting its amendments. We do not support the Greens amendments, although I think we are talking about the same principles.

Question negatived.

by leave—I move amendments (11), (12) and (13) on sheet BD213:

(11)  Clause 10, page 8 (lines 13 and 14), omit paragraph (2)(a).

(12)  Clause 10, page 8 (after line 16), after paragraph (2)(c), insert:

           (ca)    the Human Rights Commissioner; or

           (cb)    the Privacy Commissioner; or

the head of an agency established by a law of the Commonwealth or of a State or Territory; or

(13)  Clause 29, page 18 (lines 4 to 7), omit subclause (1), substitute:

        (1)    The National Security Legislation Monitor must prepare and give to the Prime Minister a report (an annual report):

             (a)    relating to the performance of the Monitor’s functions as set out in paragraphs 6(1)(a) and (b); and

             (b)    containing such details relating to the performance of the Monitor’s function as set out in paragraph 6(1)(c) as the Monitor considers appropriate.

I will speak to the government’s amendments (11) and (12) to clause 10 and also to government amendment (13), which relates to clause 29, but they may need to be put separately. The consequential amendment to amendment (10) will omit paragraph (2)(a) of clause 10. Amendment (12) on sheet BD213 implements recommendation 9 of the committee’s report. It makes clear that the monitor may consult with the heads of any statutory agencies established under Commonwealth and state and territory laws, such as the Privacy Commissioner and the Australian Human Rights Commissioner.

Government amendment (13)—annual report—implements recommendation 12 of the committee’s report and expands the reporting requirements to require that the monitor include references from the Prime Minister in the annual report as the monitor considers appropriate. Any sensitive information would be excluded from the unclassified version of the report, as I mentioned earlier.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I just briefly indicate the support of the Australian Greens for the amendments that have just been moved by the Special Minister of State. As he says, they arise more or less directly from the recommendations of the committee after a lot of deliberations. They certainly saved us some work, because I was anticipating having to draft these myself. They are appreciated and we will be supporting them.

Question agreed to.

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

by leave—I move amendments (3), (4), (16), (17), (18) and (19) and also amendment (20) on sheet BD213 relating to the long title of the bill:

(3)    Clause 4, page 4 (after line 6), after the definition of head, insert:

National Security Legislation Monitor means the person appointed in accordance with section 11.

(4)    Clause 4, page 4 (lines 26 and 27), omit the definition of National Security Legislation Monitor.

(16)  Clause 3, page 2 (line 4), omit “a”, substitute “an”.

(17)  Clause 5, page 6 (line 5), omit “a”, substitute “an”.

(18)  Clause 8, page 7 (line 14), before “National Security Legislation Monitor’s”, insert “Independent”.

(19)  Part 1 to Part 5, page 1 (line 5) to page 20 (line 15), before “National Security Legislation Monitor” (wherever occurring), insert “Independent”.

(20)  Title, page 1 (line 2), omit “a National”, substitute “an Independent National”.

These amendments implement recommendation 2 of the committee’s report, changing the title of the bill which will now be called the Independent National Security Legislation Monitor Act. It is there in order to highlight the independent nature of the monitor’s role.

I do not accept the argument that locating an independent reviewer within the Prime Minister’s portfolio will compromise the monitor’s independence anymore so. In fact, the Inspector-General of Intelligence and Security is presently within that portfolio and no-one would consider that its role is anything other than independent of government. Amendments (3), (4) and (16) to (20) on sheet BD213 are consequential amendments as a result of the name change of the monitor to ‘Independent National Security Monitor’ and as such are uncontroversial. They implement recommendation 3 of the committee’s report. Government amendment (20) deals with the annual report. This amendment of the long title of the bill is in accordance with the amendments we have presently discussed.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens will be supporting these amendments. They do reflect the unanimous will of the committee and the many witnesses who presented evidence, and we appreciate that the government has taken them up.

Question agreed to.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Senator Ludlam, this means your amendment (19) will now lapse.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

That is correct. We will withdraw amendment (19) in recognition that the government has taken up that recommendation. We felt it was important to ensure that the word ‘independent’ was included in the title of the monitor. I believe that, with the amendments the government has been persuaded to pass by the work of the committee and with the amendments that have been proposed and passed by the Senate with the support of the Greens and coalition senators, we will actually introduce real independence into the functions of the office. I very much look forward to this bill passing into law and to seeing this office up and running.

Bill, as amended, agreed to.

Bill reported with an amendment; report adopted.