Independent National Security Legislation Monitor

Mr Bret Walker SC was appointed by the Governor General on 21 April 2011 as the first Independent National Security Legislation Monitor (INSLM) under the Independent National Security Legislation Monitor Act 2010 (the Act). The Act can be downloaded at Comlaw.

Under the Act, the INSLM is appointed on a part-time basis for a period not exceeding three years. The INSLM is eligible for reappointment once only.

The INSLM’s role is to review the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation on an ongoing basis. This includes considering whether the laws contain appropriate safeguards for protecting the rights of individuals, remain proportionate to any threat of terrorism or threat to national security or both, and remain necessary.

Legislation

The following legislation is reviewable as part of the INSLM’s functions:

Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 and any other provisions of that Act as far as it relates to that Division;

Part 4 of the Charter of the United Nations Act 1945 and any other provisions of that Act as far as it relates to that Part;

The following provisions of the Crimes Act 1914:

  1. Division 3A of Part IAA and any other provision of that Act as far as it relates to that Division;
  2. Sections of 15AA and 19AG and any other provision of that Act as far as it relates to those sections;
  3. 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;

Chapter 5 of the Criminal Code and any other provisions of that Act as far as it relates to that Chapter;

Part IIIAAA of the Defence Act 1903 and any other provision of that Act as far as it relates to that Part;

The National Security Information (Criminal and Civil Proceedings) Act 2004;

and Any other law of the Commonwealth to the extent that it relates to Australia’s counter-terrorism and national security legislation.

Under the Act, the INSLM must give particular emphasis to provisions of the above legislation that have been applied, considered or purportedly applied during the last financial year or the immediately preceding financial year. The INSLM must also have regard to Australia’s obligations under international agreements, including human rights obligations, counter-terrorism obligations, international security obligations and arrangements agreed from time to time between the Commonwealth, the States and the Territories to ensure a national approach to countering terrorism.

Under the Act, the Prime Minister may also refer a matter relating to counter-terrorism or national security to the INSLM, either at the INSLM’s suggestion or on the Prime Minister’s own initiative.

Review and Submissions to the INSLM

The INSLM is currently conducting a review of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (“Foreign Incursions Act”), the terrorism offences under Part 5.3 of the Criminal Code Act 1995 (Cth) (“Criminal Code”) and Part IIIAAA of the Defence Act 1903 (Cth) (“Defence Act”).  It is likely that the review will extend to a review of the powers to refuse to issue or to cancel Australian passports under the Australian Passports Act 2005 (Cth) (“Passports Act”).  The Foreign Incursions Act and Passports Act are related laws for the purpose of subpara 6(1)(a)(ii) of the Act (being “any other law of the Commonwealth to the extent that it relates to Australia’s counter-terrorism and national security legislation”).

The INSLM is also considering the issues raised in Appendix 3 of the INSLM’s First Annual Report in regards to secs 15AA and 19AG of the Crimes Act 1914 (Cth) (“Crimes Act”) (bail and non-parole periods in relation to terrorism) as well as Div 3A of Part IAA of the Crimes Act (powers in relation to terrorist acts and terrorism offences) and Part IC of the Crimes Act (police investigation powers in relation to those arrested for terrorism offences).

In carrying out the review, the INSLM will be considering the threat posed by Australians travelling abroad to engage in terrorist or foreign incursion activity and the potential for them to return to Australia with an increased capability to commit terrorist acts.  The Australian Security Intelligence Organisation (“ASIO”) reported to Parliament that:-

There has been an increase in Australians travelling overseas to participate in terrorist training or engage in foreign disputes—Syria is the primary destination.  The concern is not only for Australians who risk their lives overseas, but also the likelihood of radicalised Australians returning home with an increased commitment and capability to pursue violent acts on our shores.

ASIO is concerned about the potential for Australians in Syria to be exposed further to extremist groups and their ideology. Such groups include the recently proscribed terrorist organisation Jabhat al-Nusra. An individual who becomes involved in the conflict and who holds, or develops, an extremist ideology could return to Australia not only with the intent to facilitate attacks onshore but also with experience and skills in facilitating attacks. In addition, the individual’s social connections with international fighters could make such attacks easier to carry out. Alternatively, such an individual could become involved in terrorist activity elsewhere, exploiting the relative travel advantages Australian citizenship brings.

Source: ASIO’s Report to Parliament 2012-2013, pviii and p3

Members of the public are invited to make a written submission to the INSLM at any time.  In particular, the INSLM is interested to receive submissions on the Issues for Consideration raised in Appendix 3 of the INSLM’s First Annual Report.  The Issues for Consideration relevant to the INSLM’s review this year are Issues 31-40 (Crimes Act) and 51-59 (Criminal Code).

Written submissions can be posted or emailed. They should include contact details including a day time telephone number.

Postal address: PO Box 6500 CANBERRA ACT 2600

Email address: INSLM.submissions@pmc.gov.au

Annual Reporting Requirements

The first annual report was provided to the Prime Minister on 16 December 2011, in accordance with legislative requirements. It was tabled in Parliament on 19 March 2012.

The second annual report was provided to the Prime Minister on 20 December 2012, in accordance with legislative requirements. It was tabled in Parliament on 14 May 2013.

The third annual report was provided to the Prime Minister on 8 November 2013, in accordance with legislative requirements. It was tabled in Parliament on 12 December 2013.

Annual Reports

Annual report coverDownloads

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Last Updated: 30 January 2014