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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR BILL 2010
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Cabinet Secretary, Senator the Hon Joe
Ludwig)
THIS EXPLANATORY MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE SENATE
TO THE BILL AS INTRODUCED
INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR BILL 2010
GENERAL OUTLINE
The Independent National Security Legislation Monitor Bill 2010 (the
'Bill') establishes the position of the Independent National Security
Legislation Monitor (the 'Monitor'). The establishment of the Monitor is
consistent with recommendations made by the Security Legislation Review
Committee in June 2006, the Parliamentary Joint Committee on Intelligence
and Security in December 2006 and September 2007, and the Inquiry by the
Hon. John Clarke QC into the Case of Dr Mohamed Haneef.
The standing function of the Monitor will be to review the operation,
effectiveness and implications of the counter-terrorism and national
security legislation and report his or her comments, findings and
recommendations to the Prime Minster, and in turn Parliament, on an annual
basis. As well, the Monitor must consider whether Australia's counter-
terrorism and national security legislation contains appropriate safeguards
for protecting individuals' rights, remains proportionate to any threat of
terrorism or threat to national security, or both, and remains necessary.
The Monitor must also assess whether Australia's counter-terrorism or
national security legislation is being used for matters unrelated to
terrorism and national security.
The main purpose of the Bill is to ensure the counter-terrorism and
national security laws operate in an effective and accountable manner, are
consistent with Australia's international obligations, including human
rights, counter-terrorism and international security obligations, and help
to maintain public confidence in those laws.
The review of the counter-terrorism and national security legislation will
concentrate on the legislation which has been used or considered during the
reporting year so that the review can take into account the operational and
judicial experience with the legislation. In reviewing the legislation,
the Monitor must have regard to Australia's international obligations and
the agreed national counter-terrorism arrangements between the
Commonwealth, States and Territories.
The Bill provides for the appointment of the Monitor and prescribes his or
her functions and provides the framework for reviewing the relevant
legislation. The Monitor may initiate his or her own investigations, or
the Prime Minister may refer a matter to the Monitor to review within a
specified timeframe.
The Bill provides the Monitor with the power to compel a witness to take an
oath or affirmation to ensure that evidence given will be true. Further,
the Monitor has the power to hold both public and private hearings and to
compel the production of documents and things. These are supported by
criminal offences for conduct in the nature of contempt.
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 Independent National
Security Legislation Monitor.
NOTES ON CLAUSES
PART 1 - PRELIMINARY
Clause 1: Short title
This is a formal clause which provides for the citation of the Bill. This
clause provides that when enacted the Bill may be cited as the Independent
National Security Legislation Monitor Act 2010.
Clause 2: Commencement
This clause provides for the commencement of the Act. It provides that all
provisions commence on the day after the Act receives Royal Assent.
Clause 3: Object
This clause provides the main objectives of the Bill which are to appoint a
Monitor to review Australia's counter-terrorism and national security
legislation to ensure it remains effective in deterring, preventing and
responding to terrorism and terrorism-related activity which threatens
Australia's security. The Monitor's review will also ensure that the
legislation is consistent with Australia's international obligations,
including human rights, counter-terrorism and international security
obligations, and contains appropriate safeguards for protecting the rights
of individuals.
The establishment of an independent reviewer of terrorism laws is
consistent with recommendations made by the Security Legislation Review
Committee in June 2006, the Parliamentary Joint Committee on Intelligence
and Security in December 2006 and September 2007, and the Inquiry by the
Hon. John Clarke QC into the Case of Dr Mohamed Haneef.
The overall aims of the Bill are to ensure that Australia's counter-
terrorism and national security legislation operates in an accountable
manner, is consistent with Australia's international obligations, including
human rights, encourages public input, and provides a mechanism for the
regular review of Australia's counter-terrorism and national security
legislation.
Clause 4: Definitions
This clause defines certain terms which are set out in the Bill.
Committee on Intelligence and Security - means the Parliamentary
Joint Committee on Intelligence and Security established under the
Intelligence Services Act 2001.
counter-terrorism and national security legislation - this
definition outlines the counter-terrorism and national security
legislation within the scope of the Monitor's consideration. The
legislation defined to be counter-terrorism and national security
legislation is:
(a) Division 3 of Part III of the Australian Security
Intelligence Organisation Act 1979 and any other provision
of that Act as far as it relates to that Division;
(b) Part 4 of the Charter of the United Nations Act 1945 and
any other provision of that Act as far as it relates to that
Part;
(c) the following provisions of the Crimes Act 1914:
(i) Division 3A of Part IAA and any other provision of
that Act as far as it relates to that Division;
(ii) sections 15AA and 19AG and any other provision of
that Act as far as it relates to those sections;
(iii) Part IC, to the extent that the provisions of that
Part relate to the investigation of terrorism offences
(within the meaning of that Act), and any other
provision of that Act as far as it relates to that Part;
(d) Chapter 5 of the Criminal Code Act 1995 and any other
provision of that Act as far as it relates to that Chapter;
(e) Part IIIAAA of the Defence Act 1903 and any other
provision of that Act as far as it relates to that Part;
(f) the National Security Information (Criminal and Civil
Proceedings) Act 2004.
The Senate Standing Committee on Legal and Constitutional Affairs'
inquiry in October 2008 into legislation to establish an independent
reviewer of terrorism laws recommended that it would be useful to
detail a list of legislation to come under the scope of the
independent reviewer in order to bring clarity to the independent
reviewer's role and function. This definition implements this
recommendation by focussing on the laws which Australia has enacted or
enhanced to specifically address the threat of terrorism and related
security concerns since 11 September 2001.
head - this definition outlines who the principal office holders are
for the relevant departments or agencies.
Independent National Security Legislation Monitor - means the person
as appointed under clause 11.
law enforcement or security agency - this definition outlines all the
relevant law enforcement or security agencies.
operationally sensitive information - operationally sensitive
information includes information which, if released, might prejudice
an investigation, a prosecution or an information source. It also
includes information provided by a foreign government where it has not
consented to the public disclosure of that information.
responsible Minister - means the Minister responsible for the agency
concerned in relation to a matter being reviewed by the Monitor.
secrecy provision - means a provision of Commonwealth, State or
Territory law that prohibits or purports to prohibit the
communication, disclosure or publication of information, the contents
of a document or the production of a thing. A person will not be able
to rely on a secrecy provision in resisting disclosure or production
of a document or thing to the Monitor.
PART 2 - INDEPENDENT NATIONAL SECURITY LEGISLATION MONITOR
Division 1 - Establishment, functions and powers of Independent National
Security Legislation Monitor
Clause 5: Independent National Security Legislation Monitor
This clause creates the Office of the Independent National Security
Legislation Monitor. Provisions relating to the appointment of the Monitor
are contained in Part 2, Division 2 of the Bill.
Clause 6: Functions of the Independent National Security Legislation
Monitor
This clause outlines the functions of the Monitor. One of the Monitor's
functions includes reviewing, on his or her own initiative, the operation,
effectiveness and implications of Australia's counter-terrorism and
national security legislation, as defined in clause 4. It primarily
includes the legislation which has been specifically enacted to counter
terrorism and related security threats. However, the Monitor is also given
the ability to review other Commonwealth legislation, such as general
Commonwealth criminal legislation, to the extent that it relates to
Australia's national security and counter-terrorism legislation.
The Monitor's functions also require the Monitor to 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 proportionate to any threat of terrorism or threat to
national security, or both, and remains necessary. The Monitor must also
assess whether the counter-terrorism or national security legislation is
being used for matters unrelated to terrorism and national security.
As well as allowing the Monitor to initiate his or her own reviews, clause
6 also provides scope for the Prime Minister to refer matters relating to
counter-terrorism or national security to the Monitor to report on to the
Prime Minister.
Subclause 6(1A) provides that the Monitor could perform his or her
functions in paragraphs (1)(a) or (b) in clause 6 if the Parliamentary
Joint Committee on Intelligence and Security (PJCIS) refers a matter to the
Monitor.
These functions are consistent with the recommendations of the Senate
Standing Committee on Legal and Constitutional Affairs' inquiry into
legislation to establish an independent reviewer of terrorism laws, as the
Committee recommended that the role and function of the independent
reviewer be comprehensively described.
The terms 'operation' and 'effectiveness' in the Monitor's functions in
paragraphs 6(1)(a) and (b) are consistent with the Security Legislation
Review Committee's terms of reference and they currently appear in the
PJCIS's terms of reference in section 29 of the Intelligence Services Act
2001.
Subclause 6(2) outlines what is not a function of the Monitor similar to
section 29 of the Intelligence Services Act 2001 which outlines what are
and what are not the functions of the PJCIS. This subclause is included to
provide greater clarity to the role and functions of the Monitor and to
ensure no overlap with other oversight and accountability agencies such as
the Inspector-General of Intelligence and Security (IGIS) and the
Commonwealth Ombudsman. However, as outlined in clause 10, it is envisaged
that the Monitor may liaise with such agencies when performing his or her
functions and must have regard to their functions.
Clause 7: References to the Independent National Security Legislation
Monitor by the Prime Minister
This clause allows the Prime Minister to refer a matter to the Monitor to
review in a specified timeframe. When referring a matter to the Monitor,
the Prime Minister will provide the Monitor the terms of reference and
priorities for the review. The Prime Minister may alter the terms of
reference during the review period and grant an extension to the Monitor.
The Prime Minister may give the Monitor directions about the order to deal
with references.
This clause is similar to the way in which the Attorney-General may refer a
matter to the Australian Law Reform Commission under section 20 of the
Australian Law Reform Commission Act 1996.
Clause 7A: References to the Independent National Security Legislation
Monitor by the Committee on Intelligence and Security
This clause provides that the PJCIS may refer to the Monitor a matter that
it becomes aware of in the course of performing its functions under
subsection 29(1) of the Intelligence Services Act 2001 and considers should
be referred to the Monitor. It provides that it is 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 and would
retain discretion in dealing with any references provided by the PJCIS.
This ensures that the Monitor's resources would be used efficiently. The
Monitor would be able to report on the PJCIS references in the annual
report.
Clause 8: Regard to be had to international obligations and national
arrangements
This clause provides that when performing the Monitor's functions, the
Monitor must have regard to Australia's international obligations which
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. For example, these include Australia's human rights
obligations such as Australia's obligations under 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 Australia's obligations under 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 clause also requires the Monitor to have regard to national
arrangements agreed to from time to time between the Commonwealth, States
and Territories. This clause recognises that counter-terrorism is a
national issue and that the terrorism offences and related provisions in
Part 5.3 of the Criminal Code Act 1995 were enacted under a referral of
powers from the States. Other national arrangements are also reflected in
the National Counter-Terrorism Plan. In addition to arrangements between
each police force in Australia, national arrangements are facilitated
through the National Counter-Terrorism Committee and its subcommittees
which have representatives from all the States and Territories.
Clause 9: Emphasis to be given to counter-terrorism and national security
legislation that has been applied or considered recently
This clause provides that when performing the Monitor's functions in a
particular financial year, the Monitor must give particular emphasis to
that legislation which has been used or considered during that year, or in
the immediately preceding financial year, and report his or her comments,
findings or recommendations to the Prime Minister on an annual basis.
This clause is intended to ensure the Monitor reviews the laws when they
have been used in a practical scenario. Reviewing laws when they have not
been used or relied upon would be considered an ineffective use of the
Monitor's time and resources.
Clause 10: Consultation with agencies etc.
This clause provides that when performing the Monitor's functions, the
Monitor must have regard to the functions and roles of other oversight and
accountability agencies.
Subclause 10(2) provides the Monitor may consult with such oversight and
accountability agencies as the Monitor considers necessary to effectively
perform his or her functions. In particular, the Monitor may consult with
the Commonwealth Ombudsman, the IGIS, the Human Rights Commissioner, the
Privacy Commissioner and the head of any other agency established under
Commonwealth and State and Territory laws.
Division 2 - Appointment of Independent National Security Legislation
Monitor
Clause 11: Appointment
This clause provides that the Monitor is to be appointed (or reappointed)
by written instrument from the Governor-General. The Monitor will
undertake his or her role on a part-time basis. The Governor-General must
not appoint a person as the Monitor unless, in the Governor-General's
opinion, the person is suitable for appointment because of the person's
qualifications, training or experience. In addition, before the Governor-
General appoints a person as the Monitor, the Prime Minister must consult
with the Leader of the Opposition in the House of Representatives.
Clause 12: Term of Appointment
This clause provides for the appointment of the Monitor for a fixed term
specified in the instrument of appointment and not exceeding three years.
The Monitor is eligible to be reappointed by the Governor-General for one
further term.
Clause 13: Remuneration and allowances
This clause provides that the remuneration for the Monitor is to be
determined by the Remuneration Tribunal in accordance with the Remuneration
Tribunal Act 1973, with provision for remuneration to be prescribed by
regulation in the absence of such determination. Allowances may also be
prescribed by regulation.
Clause 14: Leave of Absence
This clause provides that the Prime Minister may grant the Monitor leave of
absence on the terms and conditions specified by the Governor-General in
writing.
Clause 15: Outside employment
This clause ensures that the Monitor does not engage in any paid employment
outside the Office of the Independent National Security Legislation Monitor
that conflicts or may conflict with his or her duties, without written
consent from the Prime Minister. The intention of the clause is to prevent
the occurrence of a conflict of interests arising which would prevent the
Monitor from properly performing his or her duties.
Clause 16: Disclosure of interests to the Prime Minister
This clause requires the Monitor to provide written notice to the Prime
Minister where he or she has, or acquires, an interest that may conflict
with the performance of his or her functions as the Monitor. Failure to
provide such notification, without reasonable excuse, is a ground for
dismissal of the Monitor by the Governor-General pursuant to Clause 19.
Clause 17: Other terms and conditions
This clause provides that the Monitor may only hold office as the Monitor
on the terms and conditions which are determined by the Governor-General in
relation to matters not covered by the Bill.
Clause 18: Resignation
This clause provides that the Monitor may resign from his or her
appointment as the Monitor by providing the Governor-General with written
notice of the resignation.
Clause 19: Termination of appointment
This clause provides that the Governor-General can only terminate the
appointment of the Monitor on the grounds specified in this clause. The
Governor-General has discretion to dismiss the Monitor for misbehaviour or
physical or mental incapacity.
The Governor-General must dismiss the Monitor in situations such as:
bankruptcy, failing to disclose conflicts of interest in contravention of
clause 16, engaging in unauthorised outside employment in contravention of
clause 15, and/or unauthorised absence from office.
Clause 20: Acting Independent National Security Legislation Monitor
This clause provides that in circumstances where there is a vacancy in the
Office of the Monitor or during any periods where the Monitor is absent
from duty or Australia, or unable to perform his or her duties, the Prime
Minister may appoint a person as Acting Independent National Security
Legislation Monitor.
Consistent with section 33A of the Acts Interpretation Act 1901, the Acting
Monitor may only be appointed for a maximum of 12 months.
PART 3 - INFORMATION GATHERING POWERS
Clause 21: Independent National Security Legislation Monitor may hold
hearings
This clause confers powers on the Monitor to hold a hearing for the purpose
of performing his or her functions under the Bill.
Subclause 21(2) requires that a hearing must be held in public unless the
Monitor exercises his or her discretion and directs that a hearing, or part
of a hearing, be held in private or for any time during which a person is
giving evidence that discloses operationally sensitive information. This
provision ensures that as far as possible, the Monitor may hold hearings in
public. The provision also ensures that an appropriate and necessary level
of protection is afforded to operationally sensitive information by
requiring that a hearing be held in private where operationally sensitive
information could be discussed.
The ability to hold public hearings allows the Monitor to ensure that
public and interested stakeholders can participate in the review process.
However, it is important that the Monitor may hold hearings in private
where law enforcement and intelligence agencies can discuss issues which
may be operationally sensitive.
The Monitor has a general power to regulate the conduct of proceedings at a
hearing as he or she thinks fit. This is similar to subsection 25A(1) of
the Australian Crime Commission Act 2002 and subsection 82(2) of the Law
Enforcement Integrity Commissioner Act 2006.
Subclause 21(4) requires the Monitor to make a record of each hearing he or
she conducts.
Subclause 21(5) is included to assist readers, as the instrument is not a
legislative instrument within the meaning of section 5 of the Legislative
Instruments Act 2003.
A direction given by the Monitor under this section is not a legislative
instrument.
Clause 22: Independent National Security Legislation Monitor may summon
person
This clause confers power on the Monitor to summon a person. Under
subclause 22(1) the Monitor can serve a summons on a person to attend a
hearing at a time and place specified in the summons for the purpose of
giving evidence or producing documents or things specified in the summons.
The summons must be in writing, signed by the Monitor and served on the
person required to attend the hearing (subclause 22(2)). The Monitor must
give a person 14 days notice if the Monitor summons the person as a witness
(subclause 22(3)).
Subclause 22(4) provides that a person that is summoned under this clause
to appear as a witness at a hearing is entitled to be paid allowances for
travel and other expenses. The regulations will prescribe the allowances.
It is necessary for the allowances to be prescribed in the regulations so
that the allowances can be adjusted in a timely manner to respond to
changes in market conditions. This clause is similar to powers held by
other oversight bodies.
Failure to comply with a summons issued under this clause is an offence
under clause 25 of the Bill.
Clause 23: Evidence on oath or by affirmation
This clause confers power on the Monitor to administer an oath or
affirmation to a witness. The Monitor may require a witness at a hearing
to take an oath or affirmation.
The consequence of the power of the Monitor under subclause 23(1) to compel
a witness to take an oath or affirmation is that hearings held by the
Monitor under the Bill are characterised as 'judicial proceedings' under
Part III of the Crimes Act 1914. This means that the offences attaching to
judicial proceedings as set out in Part III of the Crimes Act 1914 are
applicable to hearings conducted under the Bill. For example, offences for
giving false testimony, fabricating evidence, intimidation of witnesses,
corruption of witnesses, deceiving witnesses and destroying evidence are
available.
An oath or affirmation administered by the Monitor under this clause is an
oath or affirmation that the evidence the witness will give will be true.
Under subclause 23(3) the Monitor has a discretion to allow a person who is
attending a hearing who has been sworn or has made an affirmation to give
evidence at the hearing by tendering a written statement and verifying it
by oath or affirmation.
Failure to take an oath or make an affirmation if requested by the Monitor
is an offence under subclause 25(2) of the Bill. The offence is punishable
by imprisonment for 6 months or 30 penalty units, or both.
Conferring power on the Monitor to compel a witness to take an oath or
affirmation ensures the accuracy of evidence given in a hearing. This is
similar to powers provided by other oversight bodies.
Clause 24: Independent National Security Legislation Monitor may request
production of a document or thing
This clause confers power on the Monitor to request a person to produce to
the Monitor a document or thing for the purpose of conducting a review in
accordance with the Monitor's functions under the Act. Under subclause
24(1) the Monitor can, by written notice, request a person to give the
Monitor the information specified in the notice or to produce to the
Monitor the documents or things referred to in the notice. The period
within which the person must comply with the request must be specified
(Subclause 24(2)).
Subclause 24(3) provides that the Monitor must allow at least 14 days for a
person to comply with the written notice to produce a document or thing.
Failure to give the information, or produce the document or things, is an
offence under clause 25 of the Bill.
Clauses 27 and 28 also make provision for the Monitor to retain the
documents and to ensure protection of national security classified or
operationally sensitive information documents.
Clause 25: Offences
This clause outlines various offences for failing to comply with a summons
or a notice served by the Monitor.
Offence for failure to attend hearing
Subclause 25(1) makes it an offence for a person to fail to attend at a
hearing if required to do so under a summons.
The offence is punishable by imprisonment for 6 months or 30 penalty units,
or both.
Failure to swear an oath, make an affirmation or answer a question
Subclause 25(2) makes it an offence for a person who is served with a
summons to attend a hearing to fail to be sworn or make an affirmation at
the hearing, or fails to answer a question (without reasonable excuse) at
the hearing that the Monitor requires the person to answer.
The offence is punishable by imprisonment for 6 months or 30 penalty units,
or both.
Failure to produce a document or thing
Subclause 25(3) makes it an offence for a person to fail to produce
(without reasonable excuse) a document or thing the person was required to
produce under a notice served on them by the Monitor.
This offence is punishable by imprisonment for 6 months or 30 penalty
units, or both.
Failure to provide information
Subclause 25(4) makes it an offence for a person to fail to provide
information (without reasonable excuse) that the person was required to
provide under a notice served on them by the Monitor.
This offence is punishable by imprisonment for 6 months or 30 penalty
units, or both.
Exception - reasonable excuse
Subclause 25(5) provides that clause 25 does not apply if the person has a
reasonable excuse.
What is a reasonable excuse
Subclause 25(6) provides that a person requested to answer a question,
produce a document or thing or provide information under subclauses 25(1)-
(4) can refuse to answer the question or produce the document, information
or things on grounds that doing so could incriminate him or her and expose
that person to a penalty. This subclause enforces the principle against
self-incrimination.
Clause 26: No criminal or civil liability under secrecy provisions
A person is not excused from answering a question or providing information
or documents or things when requested under clause 22 or 24, on the grounds
that answering the question, or producing the information or documents or
things would breach a secrecy provision. This clause provides immunity for
those people who act in compliance with a request from the Monitor from
proceedings for contravening any secrecy provision. This provision must be
viewed in light of the Monitor's functions and the protection of
operationally sensitive information in other provisions of the Bill.
This is designed to encourage people to assist the Monitor in the conduct
of inquiries as fully as possible.
Clause 27: Independent National Security Legislation Monitor may retain
documents or things
This clause provides that the Monitor may retain documents or things
produced to him or her pursuant to a request made under clause 22 or 24.
Under this clause, the Monitor will be able to take possession of a
document or thing, make copies of a document or thing, take extracts from a
document, and retain possession of a document or thing for as long as
necessary for the purposes of the investigation for which the document or
thing was requested.
Documents or things obtained pursuant to a request made under clause 22 or
24 will not be able to be retained indefinitely. Rather, the period of
time that the Monitor can retain documents or things under this clause is
limited to the period for which those documents or things are necessary for
the purposes of the investigation for which they were requested.
At all times while the Monitor retains a document or thing obtained
pursuant to a request made under clause 22 or 24, the Monitor must allow
persons who would otherwise be entitled to inspect or view the document or
thing reasonable access to inspect or view the document or thing at the
times that the person would ordinarily be able to do so (subclause 27(2)).
Providing a power of inspection means that the person is not completely
deprived of the document or thing.
This clause is necessary to enable the Monitor to access documents and
information relevant to reviewing the operation and effectiveness of
Australia's counter-terrorism and national security legislation. This
clause is similar to section 18 of the Inspector-General of Intelligence
and Security Act 1986, sections 28 and 29 of the Australian Crime
Commission Act 2002, sections 9 and 13 of the Ombudsman Act 1976, sections
19 and 20 of the Inspector-General of Taxation Act 2003 and sections 77 and
102 of the Law Enforcement Integrity Commissioner Act 2006.
Clause 28: Protection of information and documents
This clause provides that if documents provided to the Monitor carry a
national security classification or contain operationally sensitive
information, the Monitor must make arrangements acceptable to the head of
the agency he or she is requesting the information from, for the security
of any information.
In addition, the Monitor must ensure that any documents that have a
national security classification or contain operationally sensitive
information which are provided to the Monitor are returned as soon as
possible after the Monitor has examined them.
PART 4 - REPORTING REQUIREMENTS
Clause 29: Annual Report
Subclause 29(1) provides that the Monitor must provide a report to the
Prime Minister on the operation, effectiveness and implications of
Australia's counter-terrorism and national security legislation and whether
it contains appropriate safeguards for protecting individuals' rights, is
proportionate to any threats, and remains necessary. The Monitor's annual
report must include details about references from the Prime Minister as the
Monitor considers appropriate. For example, the Monitor must report on the
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.
Subclause 29(2) provides that the Monitor must report as soon as
practicable after 30 June each financial year, and in any event, within
6 months after the end of that particular period.
Subclause 29(2A) provides that the Monitor must prepare a declassified
annual report for the Prime Minister, at the same time as the annual
report, if the annual report contains any information referred to in
subclause 29(3).
Subclause 29(3) restricts the nature of what the Monitor may publish in the
annual report. This would exclude from the annual report any operationally
sensitive information, information that would or might prejudice
Australia's national security or the conduct of Australia's foreign
relations, or the performance by an agency of its functions, information
that may endanger a person's safety, information obtained from Cabinet
documents, and information that would disclose Government deliberations or
decisions.
Subclause 29(4) provides that the Monitor may seek the advice of the
responsible Ministers concerned to determine if the annual report contains
any information referred to in subclause 29(3). Upon receiving the report
from the Monitor, subclause 29(5) provides that the Prime Minister must
present the annual report (or the corresponding declassified annual report)
to each House of Parliament within 15 sitting days after the day on which
he or she receives the report under subclause 29(5).
Clause 30: Report on a reference by the Prime Minister
This clause provides that if a matter has been referred to the Monitor by
the Prime Minister under clause 7, then the Monitor is required to report
to the Prime Minister on that reference. The Monitor must prepare and give
to the Prime Minister a declassified report if the Monitor's report or
interim report contains information contained in subclause 29(3). The
Prime Minister must present the report on the reference (or the
corresponding declassified annual report) to each House of Parliament
within 15 sitting days after the day on which he or she receives the report
under subclause 30(6). The Monitor may, under his or her own discretion or
by direction from the Prime Minister, give an interim report to the Prime
Minister on the Monitor's work on the reference.
PART 5 - MISCELLANEOUS
Clause 31: Immunity from legal action
This clause protects the Monitor from any legal action being brought
against him or her in relation to anything the Monitor has done or omitted
to do in the performance or his or her functions or the exercise of his or
her powers. This clause is important so that the Monitor can effectively
perform his or her functions without fear of legal action.
This does not prevent legal action from being brought against the Monitor
if the Monitor is acting outside his or her functions or powers.
Clause 32: Regulations
This clause provides for the Governor-General to make regulations covering
matters required to be prescribed in the Bill, or matters that would be
necessary or convenient to prescribe for the purposes of the Bill.
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