Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The debate on the Independent National Security Legislation Monitor Amendment Bill 2021 was started some 2½ months ago, and I made some introductory remarks on 2 September, for those interested in following the debate or my remarks. The Independent National Security Legislation Monitor, or INSLM, is an important part of our security framework, providing the necessary checks and balances. The monitor was established some 11 years ago. The bill seeks to update the role from a part-time position, with no staff. The legislation under which the monitor operates clearly needs updating.

This bill has five proposals in it. It is to enable the Independent National Security Legislation Monitor to report on reviews undertaken on their own initiative, or own-motion inquiries, in standalone reports separate to the INSLM's annual reports as currently required. It will clarify the process for an INSLM review following a reference from the Parliamentary Joint Committee on Intelligence and Security. It will clarify the reporting arrangements for statutory reviews conducted by the INSLM with the performance of functions and exercise of powers, and provide current and former staff of the INSLM with appropriate protections in relation to anything done or omitted to be done by that person in good faith in the course of assisting the INSLM in performing functions or exercising power. The INSLM independently reviews the operation, effectiveness and implications of national security and counterterrorism laws. The INSLM considers whether the laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats and remain necessary.

Other countries deal with these matters as well, and that is why I believe the Anderson report of the UK Investigatory Powers Review has something to offer us. In that report it is stated:

Public consent to intrusive laws depends on people trusting the authorities, both to keep them safe and not to spy needlessly on them.

…   …   …

Trust in powerful institutions depends not only on those institutions behaving themselves (though that is an essential prerequisite), but on there being mechanisms to verify that they have done so. Such mechanisms are particularly challenging to achieve in the national security field, where potential conflicts between state power and civil liberties are acute, suspicion rife and yet information tightly rationed.

…   …   …

Respected independent regulators continue to play a vital and distinguished role. But in an age where trust depends on verification rather than reputation, trust by proxy is not enough. Hence the importance of clear law, fair procedures, rights compliance and transparency …

Suffice to say I agree, and the INSLM, the monitor, plays that very important role in our jurisdiction. So it is important that this monitor have the capacity to undertake reviews at his or her own volition, of his or her own motion. Similarly, it allows references from the Parliamentary Joint Committee on Intelligence and Security. Whilst I serve on the committee, I can at least vouch for everybody else that they take their role extremely seriously, as I would like to think that I do mine. It is something that we on the committee seek to balance up each and every time when we look at security legislation, to ensure that we get the balance right, that we protect our fellow Australians from those that would seek to harm us, whilst also ensuring that people's civil liberties are protected as much as possible. In fact, a starting point has to be the protection of individual rights and civil liberties. f they are to be in any way diluted, a very strong case needs to be made for that particular authority to be clothed with that power.

That is why, when from time to time such legislation comes forward, its ongoing necessity or efficacy should be monitored and considered by an independent person such as the INSLM. It's an unfortunate acronym for the person who has that title of monitor, but we all—in this place at least—know of whom we speak. The INSLM needs to review the operations. I think that is something that anybody who is genuinely concerned in this space would like to see. I'm pleased that the parliamentary joint committee has looked into this and supports these proposals and also that the government, importantly, sees the need.

There have been some equivocations in these areas. The previous monitor has recommended:

That the INSLM Act … be amended to provide for an express power for the INSLM to report on a matter or matters within the statutory mandate but more urgently or particularly than by the annual report.

The government has accepted that recommendation. The previous INSLM also made this recommendation:

That the INSLM act … be amended to require a formal response by the executive government to INSLM reports to be tabled in the Parliament within 12 months of delivery of the reports.

Interestingly enough, a further review in relation to all this came to an alternative view, and it's worth reading that in full:

The INSLM considers that 'an important part of the process begun by conducting a review and reporting, is the timely response of the government of the day'. Given the INSLM's ongoing role (compared to a Royal Commission whose role is over once it has delivered its report), the INSLM submitted that it has an interest in considering the implementation of its recommendations.

The Review agrees with public stakeholders that the Government should give appropriate consideration to the recommendations of independent experts. The Government specifically established the role of the INSLM to provide independent, expert analysis to it, and, therefore, should consider that analysis and respond to it in a timely manner.

This is the important part:

However, the Review considers it would be incongruent with the approach to Government responses to parliamentary committee reports to legislate this requirement. There is generally no requirement in legislation for the Government to respond to parliamentary committee recommendations (rather, successive governments have undertaken to respond to parliamentary committee reports, including by way of resolutions).

That is, I think, on page 293 of that particular further review that I understand was undertaken by a Mr Dennis Richardson some time ago. When you have a look at all the competing views, it stands to reason that, with some of these matters that are or aren't in this bill, it's a matter of balance and it's a matter of judgement, and there will be men and women of good faith on both sides who would say that there should be more in this bill or there should be less in this bill.

At the end of the day, we have to come to a landing. We have to make a decision. Ultimately, what the Australian people want us as a government to do and which the Liberal-National government is absolutely committed to do—and which, in fairness, to reach out across the chamber, I am sure those who are in the alternate government would also be committed to do—is to seek to balance the security of our nation and the security of our individual Australians against any security attack whilst also balancing the rights and liberties of our fellow Australians. That is what this legislation seeks to do, with some other machinery provisions. I commend the bill to the Senate.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

I rise to speak on the Independent National Security Legislation Monitor Amendment Bill 2021. The Australian Greens will be supporting this bill with the amendments that have been circulated, and I thank Senator Patrick for those amendments. The Independent National Security Legislation Monitor, the INSLM, is responsible for independently reviewing the operation, effectiveness and implications of national security and counterterrorism laws. This position is absolutely critical, because this parliament has passed well over 70 counterterrorism laws in the last two decades, and often they have never been used. The INSLM is the body responsible for considering whether counterterrorism and intelligence laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats and remain necessary. It's important that the INSLM continue to have access to all relevant materials, regardless of national security classification, and that they can continue to compel answers to questions and hold public and private hearings.

I'm glad that this bill is being amended by the government to provide that the INSLM is now a full-time position, as opposed to it being a part-time position beforehand. It is quite surprising that, regardless of how much intelligence and counterterrorism legislation this parliament has passed, the position of the INSLM was a part-time appointment. I'm glad to see this change in this bill—a case of better late than never, but at least it's happening. The Australian Greens are also heartened that there are clearer reporting requirements in this bill and the amendments, particularly the requirement for the Attorney-General to provide government responses to INSLM annual reports and to table them in parliament.

In conclusion, the Australian Greens will be supporting this bill and the amendments. It's critical that all oversight bodies and mechanisms are given the resources they need to undertake their work. The work of the INSLM is absolutely critical. Let's hope that the government actually listens to the recommendations of the INSLM, because that's going to be the real test.

Jim Molan (NSW, Liberal Party) Share this | Link to this | Hansard source

I'm caught remarkably short today, because a lot of what I had to say to the Senate was based on the assumption that the Greens would reject the Independent National Security Legislation Monitor Amendment Bill 2021. Instead, I thank Senator Thorpe for her support of the bill, although it leaves me with not much to say! When she spoke, Senator Thorpe pointed out to us the need for this legislation because of the 70 counterterrorism laws that this country has enacted in the last 20 years. I don't see it as a failure that those laws have not been used; I see it as an absolute triumph. Laws act both as a deterrent and as a punishment, and I think that's very, very important to realise. Senator Abetz went through a good deal of the detail of the bill. As a man who's been on the PJCIS for a very long time, he understands the value of this extraordinary committee, and later today the chair of that committee, Senator Paterson, will take us through the real detail of the bill.

In the last 24 hours we've certainly had national security as a theme. It's been on the agenda as a theme, and it's a very important theme both internally in Australia and as an external activity facing external threats. In the last 24 hours we've had the high-risk terrorist offenders bill in which we balanced continuous detention orders with extended supervision orders. This is a manifestation of the flexibility that we need in order to react to any situation. Of course, once a court becomes involved, extended supervision orders can be applied to someone who's been jailed for terrorist offences and is coming out of that detention if there is a reasonable belief that the individual still holds very extreme views. The extended supervision order can be put on for three years.

Even before the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2021, we looked at the Security Legislation Amendment (Critical Infrastructure) Bill 2021. Really, that's legislation to defend ourselves against what is becoming a very common activity around the world—that is, an attack by unknown people on many occasions. But sometimes, as was pointed out to us by Senator Paterson yesterday, we know exactly who is doing this to us, why they're doing it and how they're doing it. What frightens me even more is that, where we don't know they have been, they have left the ability to turn things on and off at a time that suits them, and they will cause those activities to be turned on in a time of high crisis.

The number of bills that we have brought into the parliament indicates that we are dragging Australia into the 21st century, and the dragging that this government has done has been fabulous over the last year. Since 2013, even since 9/11, we have led the world. We have been very effective. We've led the world in an awful lot of counterterrorist legislation, online safety legislation and anticyber legislation, which grants to those who have to protect us day and night the tools that they need in order to protect us.

We recognise the new situation. We look back and we see 9/11, we see the attacks in London and we see the attacks in New Zealand; we understand the internal threat in countries. We understand the threats which are coming from an external source but are manifest in ransomware, in turning off east coast gas pipelines—which is a possibility—or water pipelines or attacking food companies. We understand all these things. We've got to move on and start recognising the new situation that we face in a much larger sense. So we're very, very good internally and we've now got to start recognising what's going on in relation to our strategic environment.

For 75 years we have been an extraordinary country. Through the situations that we've faced, we have enjoyed, based on our alliances—and also based on our own work and on a good deal of luck—extraordinary security and great prosperity. Now things are different. Now we have a rising power in our region. In fact, we've got a number of powers in our region: China, Russia, Iran and North Korea, all of which are rising and three of which—pick any you like—are well and truly in the Indo-Pacific, in our area. The US is certainly a mighty power and will remain a mighty power, but the US has world responsibilities and it is well and truly time that we looked after ourselves.

Internally, I think we are doing exactly that. The legislation that gives us power to look after ourselves internally is extraordinary, and we are having great achievements. Externally we have started far, far too late, but that doesn't matter. No government since the end of the Vietnam War has done what this coalition government has done since 2013 in relation to external defence. No-one has done as well as they've done. So, external threats are certainly one thing. We can always do better and I certainly advocate 24 hours a day that we should do better.

Today we continue our record of looking at legislation which is very important to us. My experience of the PJCIS gave me great faith in the processes within that tremendous committee. I wish very sincerely that we had the equivalent of the PJCIS instead of the defence subcommittee, as a bipartisan report recommended a couple of years ago, that could do in the area of strategy and national security exactly what the PJCIS does in the area of intelligence and lower-level security. And the mechanisms that surround intelligence and security in the PJCIS—that surround this process and ensure we balance the greater general good with individual rights—are what we're here today to talk about. As Senator Abetz said, 'The essence is trust,' and, as the old saying goes: trust and verify.

The background to this bill is that it amends the Independent National Security Legislation Monitor Act 2010, known as the INSLM Act, to allow the Independent National Security Legislation Monitor to report on own-monitor inquiries in standalone reports, clarify the reporting arrangements for the monitor following statutory reviews or referrals, and the Parliamentary Joint Committee on Intelligence and Security, and provide a framework for the engagement of staff, including contractors, to assist the monitor.

The government is committed to ensuring Australia has a robust national security and counterterrorist framework to face internal and external threats. The Independent National Security Legislation Monitor is responsible for regularly assessing Australia's national security and counterterrorism laws to ensure that they remain appropriate to the country threat environment and that the objective of protecting national security is balanced against upholding the rights and freedoms of individuals.

This bill will clarify reporting arrangements for the monitor and provide a framework for the engagement of staff to assist the monitor. The bill implements recommendations made by the former monitor and by the 2019 Comprehensive review of the legal framework of the national intelligence community, which the government accepted. Passage of the bill will ensure that the monitor's enabling legislation reflects the current operation of the position and assists the monitor in the performance of this role. I recommend this bill to the Senate.

James Paterson (Victoria, Liberal Party) Share this | Link to 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.

Amanda Stoker (Queensland, Liberal Party, Assistant Minister to the Attorney-General) Share this | Link to this | Hansard source

I thank my parliamentary colleagues for their contributions to the debate on the Independent National Security Legislation Monitor Amendment Bill 2021. This bill reflects the government's ongoing commitment to ensuring that Australia has a robust national security and counterterrorism framework. It will assist the Independent National Security Legislation Monitor, also known as INSLM, in the performance of their role, helping to ensure that Australia's counterterrorism and national security legislation remains necessary, appropriate and proportionate.

The bill implements recommendations made by the former monitor and the 2019 Comprehensive review of the legal framework of the national intelligence community to allow the monitor to report on matters more urgently or more particularly than in their annual report. The additional amendments moved by the government will ensure appropriate reporting and staffing arrangements for the INSLM, ensuring that they are able to effectively execute their important oversight role. I will go into those some more during the committee stage, but at this stage I want to thank my colleagues across the chamber for their support of these important measures.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill be read a second time.

Question agreed to.

Bill read a second time.