Inquiry into the National Security Legislation Monitor Bill 2009
Legal
Inquiry into the National Security Legislation Monitor Bill 2009
Australian Human Rights Commission
Submission to the Senate Standing Committee on Finance and Public
Administration
27 July 2009
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1 Introduction
-
The Australian Human Rights Commission (the Commission) makes this
submission to the Senate Finance and Public Administration Committee (the
Committee) in its Inquiry into National Security Legislation Monitor Bill
2009 (the Bill). -
The Explanatory Memorandum states the ‘main purpose of the Bill is to
ensure the laws operate in an effective and accountable manner, are consistent
with international human rights law and help to maintain public confidence in
those laws’.[1] This purpose
will only be achieved if the Monitor is perceived as truly independent and his
or her reports are considered by the Australian Government in a serious and
timely manner.
2 Summary
and recommendations
-
We welcome the Australian Government’s decision to establish a
National Security Legislation Monitor (the Monitor), consistent with the
recommendations of the major Australian reviews of counter-terrorism
laws.[2] We particularly commend the
fact that the Bill specifically requires the Monitor to have regard to
Australia's international obligations, including Australia’s human rights
obligations.[3] -
For the Monitor to function effectively and promote public confidence in
Australia’s counter-terrorism laws it is vital that:-
The Monitor is both independent and seen to be independent; and
-
The Monitor’s reports are considered by the Government in a serious
and timely manner.
-
-
With these objectives in mind, we recommend improving the Bill by:
-
Amending the Bill to state that the object of the Bill is to appoint an independent National Security Legislation Monitor;
-
Giving the Monitor the power to report on any review he or she conducts,
without the need for a reference from the Prime Minister; -
Requiring all reports by the Monitor to be tabled in Parliament; and
-
Requiring the Government to respond formally to the reports and
recommendations of the Monitor.
-
-
We also recommend amending clause 10(2) to include a specific reference to
the Monitor’s ability to consult with the Australian Human Rights
Commission.
3 The
powers and functions of the Monitor should be consistent with the
Monitor’s independent status
-
The powers and functions of the Monitor should be consistent with the
Monitor’s status as an independent monitor of Australia’s
counter-terrorism legislation. -
Clause 3 of the Bill should be amended to make it clear that the object of
the Bill is to appoint an independent National Security Legislation
Monitor. The independent status of the Monitor should also be reflected in the
title of his or her office.
3.1 The
Monitor’s functions and powers
-
Clause 6 states the Monitor’s functions are:
(a) to
review the operation, effectiveness and implications of:(i) Australia’s counter-terrorism and national security legislation;
and(ii) any other law of the Commonwealth to the extent that it relates to
Australia’s counter-terrorism and national security legislation;(b) to consider whether Australia’s counter-terrorism and national
security legislation:(i) contains appropriate safeguards for protecting the rights of individuals;
and(ii) remains necessary;
(c) if a matter relating to counter-terrorism or national security is
referred to the Monitor by the Prime Minister—to report on the
reference.[4] -
The legislation which falls under the purview of the Monitor appears to
include all major counter-terrorism
laws.[5] Importantly, clause 6(1)(a)
enables the Monitor to review ‘any other law of the Commonwealth to the
extent that it relates to Australia’s counter-terrorism and national
security legislation’. -
The Monitor has the power to do all things necessary or convenient to be
done for or in connection with the performance of the Monitor’s
functions.[6] -
Clause 6(2) states that it is not a function of the Monitor to review the
priorities of, and use of resources by, agencies that are involved in
implementing Australia’s counter-terrorism strategy or to consider any
individual complaints about these
agencies.[7] -
Clause 7 of the Bill provides:
(1) The Prime Minister may refer
a matter relating to counter-terrorism or national security to the [Monitor]
either at the Monitor’s suggestion or on his or her own initiative.(2) The Prime Minister may alter the terms of reference.
(3) The Prime Minister may give the [Monitor] directions about the order in
which he or she is to deal with references.
3.2 The
Monitor’s reporting function should promote greater transparency and
accountability about the operation of anti-terrorism laws
-
The reporting function of the Monitor should be strengthened to promote
greater accountability and transparency about the operation of Australia’s
counter-terrorism laws. -
This Bill limits the Monitor’s function of reporting on his or her
reviews to references made by the Prime
Minister[8] and providing annual
reports to the Prime Minister.[9] While the Monitor can request a referral from the Prime Minister (cl 7(1)), the
Prime Minister is not obliged to make such referral and may alter the terms of
reference (cl 7(2)). -
We recommend that the Monitor’s functions include reporting on his or
her own initiative following the conduct of review under cl 6(1)(a)-(b). The
Monitor’s power to provide such a report should extend beyond the
Monitor’s function to provide an annual report and it should not depend on
receiving a reference under clause 7 from the Prime Minister. -
As we discuss at [19]-[24] of this submission all the Monitor’s
reports should be tabled in Parliament and require a formal response from the
Government.[10] -
We further recommend that the Monitor’s functions should be explicitly
expanded to include making recommendations about any action that should, in the
Monitor’s view, be taken to ensure:-
the effective operation of Australia’s counter-terrorism laws; and
-
that the rights of individuals are adequately protected by those laws.
-
4 The
Monitor’s reports should be tabled in Parliament and require a formal
response
-
The Bill should require that all reports by the Monitor be tabled in
Parliament and impose an obligation upon the Government to respond formally in
Parliament to the Monitor’s reports. -
The report of the Inquiry into the Independent Reviewer of Terrorism Laws
Bill 2008 [No.2] recommended that, in addition to reports to parliament on
inquiries undertaken by the Independent Reviewer, the Bill should require an
annual report on the activities of the Independent Reviewer be tabled in
parliament.[11] -
This Bill addresses this recommendation by requiring that the Monitor
provide an annual report to the Prime
Minister[12] and that report be
tabled in Parliament by the Prime Minister within 15 sitting days of receiving
it.[13] -
The Bill does not require the Prime Minister to table reports made by the
Monitor in response to a reference from the Prime
Minister.[14] However, the Prime
Minister can direct the Monitor to provide an interim report on the
Monitor’s work on a
reference.[15] These arrangements
may undermine public confidence in the independence of the Monitor. -
The Bill does not require the Government to respond to any reports of the
Monitor. In this respect, the Bill does not provide the same level of
accountability as the Independent Reviewer of Terrorism Laws Bill 2008
[No.2], which required that a Minister must, as soon as practicable after
receiving a report of a review of terrorism laws, table a response to the report
in Parliament.[16] -
We recommend:
-
Amending cl 29 to require the Prime Minister to table a response to the
annual report of the Monitor within a prescribed period. -
Amending cl 30 to require the Prime Minister to table a report by the
Monitor in Parliament and to table the Government’s formal response to
that report in Parliament within a prescribed period.
-
5 The
Monitor’s consideration of international obligations would be assisted by
consultation with the Commission
-
One of the objectives of the Bill is to ensure that Australia’s
counter-terrorism and national security legislation is ‘consistent with
Australia’s international obligations including human rights
obligations’ and ‘contains appropriate safeguards for protecting the
rights of the
individuals’.[17] -
Through our work with Arab and Muslim Australians we are familiar with
concerns that counter-terrorism legislation can have a disproportionate impact
on the rights of members of particular
communities.[18] We believe
establishing an independent Monitor with the power to review the impact of
counter-terrorism laws on human rights will play an important role in addressing
these concerns. -
The phrase ‘human rights obligations’ is not specifically
defined in the Bill. However, clause 8(1)(a) of the Bill makes it clear that in
performing his or her functions the Monitor ‘must have regard to
Australia’s obligations under international agreements (as in force from
time to time)’. This gives the Monitor the power to have regard to all the
international human rights instruments that Australia has
ratified.[19] -
Clause 10(1) of the Bill provides that when performing functions relating to
Australia’s counter-terrorism and national security legislation, the
Monitor must have regard to:(a) the functions of agencies that have
functions relating to, or are involved in the implementation of, that
legislation; and(b) functions relating to that legislation that are conferred on a person who
holds any office or appointment under a law of the Commonwealth or of a State or
Territory. -
The Explanatory Memorandum explains that cl 10 means that ‘the Monitor
must have regard to the functions and role of other oversight and accountability
agencies such as [among others] the Human Rights Commissioner’. Subclause
10(2) enables the Monitor to liaise with such oversight and accountability
agencies as the Monitor considers necessary to effectively perform his or her
functions’. -
Unlike the Independent Reviewer of Terrorism Laws Bill 2008 [No.2],
this Bill does not contain a specific reference to the ability of the Monitor to
consult with the Australian Human Rights
Commission.[20] Instead, the Bill
provides that the Monitor may consult with the Inspector General of Intelligence
and Security, the Ombudsman and the head of any other relevant
agency.[21] -
The Commission has special expertise on ensuring domestic compliance with
Australia’s international human rights obligations. We look forward to
working cooperatively and productively with the Monitor on issues relating to
the impact of counter-terrorism laws on human rights. -
To further promote effective cooperation between the Commission and the
Monitor we recommend amending clause 10(2) to include a specific reference to
the Australian Human Rights Commission.
6 Concluding
remarks
- Subject to the recommendations in this submission, we support the passage of
the Bill. We believe the Monitor will assist the Australian Government to
identify how to improve the effectiveness of counter-terrorism and national
security legislation and identify how to remedy any disproportionate and
unnecessary interference with fundamental rights and freedoms caused by the
operation of these laws.
[1] Explanatory Memorandum,
National Security Legislation Monitor Bill 2009. These objectives are reflected
in clause 3 of the Bill.
[2] Reports by bi-partisan parliamentary committees and independent reviews of
Australia’s counter-terrorism laws have all said that Australia needs to
establish an independent body to provide a comprehensive and holistic review of
the operation of counter-terrorism laws. See Inquiry by the Hon. John Clarke
QC into the case of Dr Mohamed Haneef, November 2008, Recommendation 4;
Parliamentary Joint Committee on Intelligence and Security, Inquiry into the
proscription of ‘terrorist organisations’ under the Australian
Criminal Code, (2007), Recommendation 7(b); Parliamentary Joint Committee on
Intelligence and Security, Review of Security and Counter-terrorism
Legislation, December 2006, 21; Security Legislation Review Committee
(‘SLRC’), Report of the Security Legislation Review Committee (2006), 201 [18.2].
[3] Clauses
3, 6(1) and 8(1).
[4] Clause 6(1).
[5] Clause 4.
[6] Clause
6(3).
[7] Clause 6(2). The
information gathering powers contained in clauses 21-25 of this Bill
appropriately reflect the Commission’s earlier submissions to the Standing
Committee on Legal and Constitutional Affairs the Inquiry into the Inquiry into
the Independent Reviewer of Terrorism Laws Bill 2008 [No.2]. In accordance with
the recommendation of the 2008 Senate Inquiry report into the Independent
Reviewer of Terrorism Laws Bill [No.2] 2008, clause 31 provides that the
Monitor is immune from legal action in relation to work done by the Monitor in
the performance or purported performance of his or her
powers.
[8] The Monitor is required
to report to the Prime Minister on a reference: cl
30(1).
[9] Clause
29.
[10] It is noted that
provision for the deletion of operationally sensitive material in the annual
reports is provided for in clause 29(3) of the Bill. A similar provision could
apply to all reports by the Monitor (including reports on a reference or in
response to an review initiated by the Monitor) that are tabled in Parliament.
[11] The Standing Committee on
Legal and Constitutional Affairs, Report of the Inquiry into the Independent
Reviewer of Terrorism Laws Bill 2008 [no.2], October 2008, Recommendation No. 5.
This report also noted that ‘the absence of any requirement [in that bill]
to report on a regular or prescribed basis directly to Parliament drew criticism
from a number of submitters’.
[12] Clause 29 requires the
Monitor to prepare and give to the Prime Minister an annual report relating to
the performance of the Monitor’s functions under s 6(1)(a) and (b) of the
Bill. Operationally sensitive information or information that is cabinet in
confidence can not be contained in the report: cl
29(3).
[13] Clause 29(5) requires
the Prime Minister to present an annual report to Parliament within 15 sitting
days after the day or which he or she receives the report.
[14] Clause 30.
[15] Clause 30 (3). See also
clause 30(2) which enables the Monitor to give an interim report to the Prime
Minister without receiving a direction to do so.
[16] Independent Reviewer of
Terrorism Laws Bill 2008 [No.2], cl 11(2)(b).
[17] Clause 3; see also
Explanatory Memorandum, National Security Legislation Monitor Bill 2009,
1.
[18] See for example, Human
Rights and Equal Opportunity Commission, Ismaع–Listen: National
consultations on eliminating prejudice against Arab and Muslim Australians, (2004).
[19] See for
example, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment
or Punishment, the International Convention on the Elimination of All
Forms of Racial Discrimination, the Optional Protocol on the Convention
Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or
Punishment and, in the case of juveniles suspected or charged with
counter-terrorism offences, the Convention on the Rights of Child.
[20] Clause 9(3) of the Independent Reviewer of Terrorism Laws Bill 2008 [No.2].
[21] The Bill, cl
10(2).