Commonwealth of Australia Explanatory Memoranda

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INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR BILL 2010

                                  2008-2009







               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA









                                   SENATE






               NATIONAL SECURITY LEGISLATION MONITOR BILL 2009









                    SUPPLEMENTARY EXPLANATORY MEMORANDUM



     Amendments and New Clauses to be Moved on Behalf of the Government







   (Circulated by authority of the Cabinet Secretary, Senator the Hon Joe
                                   Ludwig)
                                AMENDMENTS TO
               NATIONAL SECURITY LEGISLATION MONITOR BILL 2009

OUTLINE

The purpose of these amendments to the National Security Legislation
Monitor Bill 2009 (the 'Bill') is to respond to the report of the Senate
Finance and Public Administration Committee (the Committee) following its
inquiry into the Bill.

The Bill establishes the position of the National Security Legislation
Monitor (the 'Monitor').  In response to the Committee's report, the
amendments would emphasise the independent nature of the Monitor by
changing its title.  The reporting requirements would be expanded to allow
the Monitor to include references from the Prime Minister in the annual
report as the Monitor considers appropriate.  The amendments would also
provide that the Parliamentary Joint Committee on Intelligence and Security
(PJCIS) may refer matters that it becomes aware of in the performance of
its functions to the Monitor for the Monitor to consider reviewing.

The amendments would also:
    . Clarify that the Monitor has the power to conduct inquiries on his or
      her own initiative on subjects which are within the functions of the
      Monitor.
    . Allow the Monitor to consider on his or her own initiative whether
      Australia's counter-terrorism and national security legislation and
      any other law of the Commonwealth to the extent it relates to these
      laws is necessary, contains appropriate safeguards, and is a
      proportionate response to the threat of terrorism or threat to
      national security or both.
    . Clarify that the Monitor may consult with the Privacy Commissioner,
      the Human Rights Commissioner and the head of any other statutory
      agency.
    . Clarify that Australia's obligations under international agreements
      include human rights, counter-terrorism and international security
      obligations.
 

FINANCIAL IMPACT STATEMENT

Funding of $1.36 million over four years was provided in the 2009-10 Budget
to fund the establishment of the Office of the National Security
Legislation Monitor.
NOTES ON AMENDMENTS


Amendment 1
Amendment 1 would omit paragraph (c) of clause 3 of the Bill.  It would
substitute proposed paragraph (c) which would provide that Australia's
international obligations include human rights obligations as well as
counter-terrorism and international security obligations.  For example,
these include Australia's human rights obligations such as the
International Convention on Civil and Political Rights and the Convention
against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment.  Counter-terrorism obligations include the United Nations
counter-terrorism conventions and protocols and the United Nations Security
Council Resolutions 1267 and 1373 concerning the freezing of assets of
terrorists.  This amendment relates to amendment 10.

Amendment 2
Amendment 2 would insert the proposed definition of the Parliamentary Joint
Committee on Intelligence and Security to mean the committee of that name
established under the Intelligence Services Act 2001.

Amendment 3
Amendment 3 would insert the proposed definition of National Security
Legislation Monitor so that it follows alphabetically after the definition
of "head" in clause 4.  This is a consequence of its name change to the
Independent National Security Legislation Monitor.

Amendment 4
Amendment 4 would omit the definition of National Security Legislation
Monitor in clause 4 as the new definition would be substituted in amendment
3.

Amendment 5
Amendment 5 implements recommendations 5 and 7 of the Committee's report.
It would make explicit that the Monitor can review on his or her own
initiative the operation, effectiveness and implications of Australia's
counter-terrorism and national security legislation and any other law of
the Commonwealth to the extent that it relates to the counter-terrorism and
national security legislation.

Amendment 6
Amendment 6 implements recommendations 5 and 11 of the Committee's report.
It would omit paragraph (1)(b) of clause 6 and provide in proposed
paragraph (1)(b) that the Monitor may consider on his or her own initiative
whether Australia's counter-terrorism and national security legislation
contains appropriate safeguards for protecting the rights of individuals,
remains necessary and is proportionate to any threat of terrorism or threat
to national security or both.

Amendment 7
Amendment 7 implements recommendation 6 of the Committee's report.  It
would insert proposed subclause 6(1A) which would provide that the Monitor
could perform his or her functions in paragraph (1)(a) or (b) in clause 6
if the Parliamentary Joint Committee on Intelligence and Security (PJCIS)
refers a matter to the Monitor.

Amendment 8
Amendment 8 would amend the heading to clause 7 to make it clear this
clause refers to references by the Prime Minister to the Monitor.

Amendment 9
Amendment 9 implements recommendation 6 of the Committee's report.  It
would insert proposed clause 7A which would provide that the PJCIS may
refer a matter to the Monitor that it becomes aware of in the course of
performing its functions under subsection 29(1) of the Intelligence
Services Act 2001.  It would provide that it would be a function of the
PJCIS to be able to refer a matter to the Monitor.  The Monitor would only
be able to examine matters referred by the PJCIS if they are within the
Monitor's functions.  For example, the Monitor would not be able to review
the administration and expenditure of the agencies mentioned in paragraph
29(1)(a) of the Intelligence Services Act 2001 since reviewing the
priorities of, and use of resources by, agencies is not a function of the
Monitor as provided in subclause 6(2) of the Bill.

The Monitor would not be compelled to act on the PJCIS reference.  The
Monitor would retain discretion in dealing with any references provided by
the PJCIS.  This would ensure that the Monitor's resources would be used
efficiently.  The Monitor would be able to report on the PJCIS references
in the annual report.

Amendment 10
Amendment 10 implements recommendation 10 of the Committee's report and
relates to amendment 1.  It would omit paragraph (a) of clause 8 and would
substitute proposed paragraph (a) which would provide that Australia's
international obligations include human rights obligations as well as
counter-terrorism and international security obligations.  This highlights
that Australia's international obligations include but also extend beyond
human rights to include obligations in the counter-terrorism and
international security spheres as well.

Amendment 11
Amendment 11 is a consequential amendment which would omit paragraph 2(a)
of clause 10.  This amendment relates to amendment 12.

Amendment 12
Amendment 12 implements recommendation 9 of the Committee's report and
would insert proposed paragraphs (ca) (cb) and (cc) in clause 10 providing
that the Monitor may consult with the Privacy Commissioner, the Human
Rights Commissioner and the head of any other agency established under
Commonwealth and State and Territory laws.

Amendment 13
Amendment 13 implements recommendation 12 of the Committee's report and
would omit subclause (1) in clause 29 and substitute new subclause (1)
which would provide that the Monitor's annual report must include details
about references from the Prime Minister as the Monitor considers
appropriate.  For example, the Monitor may wish to report on the number of
references made by the Prime Minister each year, and include any non-
sensitive information about the references as the Monitor considers
appropriate.  This is similar to the type of information contained in the
Inspector-General of Intelligence and Security's annual reports.

Amendment 14
Amendment 14 would omit the heading to clause 30 and replace it with a
heading which makes it clear that this report relates to a reference made
by the Prime Minister.

Amendment 15
Amendment 15 would include additional wording in subclause 30(1) to make
explicit that the Monitor must report to the Prime Minister on a reference
made by the Prime Minister under clause 7.

Amendment 16
Amendment 16 is a consequential amendment which would substitute in clause
3 "an" for "a" as a result of the Monitor's name change to the "Independent
National Security Legislation Monitor".

Amendment 17
Amendment 17 is also a consequential amendment which would substitute in
clause 5  "an" for "a" as a result of the Monitor's name change to the
"Independent National Security Legislation Monitor".

Amendment 18
Amendment 18 is another consequential amendment which would insert the word
"Independent" in clause 8.

Amendment 19
Amendment 19 would insert the word "Independent" before "National Security
Legislation Monitor" wherever occurring throughout the Bill.  This
implements recommendation 3 of the Committee's report.

Amendment 20
Amendment 20 would omit "a National" and insert the words "an Independent
National" in the title which implements recommendation 2 of the Committee's
report.