House of Representatives Speech- Independent National Security Legislation Monitor Bill 2010

When I was speaking last night on the Independent National Security Legislation Monitor Bill 2010, I was referring to the contribution we have heard from those opposite, in particular the member for Stirling and the member for Mitchell, who regrettably, having professed bipartisan support for this legislation, sought to gain some partisan advantage by referring to the work of the member for Kooyong, who introduced a private member’s bill in 2008 dealing with the same subject. I wish to acknowledge the work of the member for Kooyong, which has been very important in drawing to public attention the model that has been employed in the United Kingdom now for many years: an independent monitor or an independent reviewer of national security and antiterror legislation.

When I was speaking last night on the Independent National Security Legislation Monitor Bill 2010, I was referring to the contribution we have heard from those opposite, in particular the member for Stirling and the member for Mitchell, who regrettably, having professed bipartisan support for this legislation, sought to gain some partisan advantage by referring to the work of the member for Kooyong, who introduced a private member’s bill in 2008 dealing with the same subject. I wish to acknowledge the work of the member for Kooyong, which has been very important in drawing to public attention the model that has been employed in the United Kingdom now for many years: an independent monitor or an independent reviewer of national security and antiterror legislation.

But those oppose who referred only to the recent work of the member for Kooyong, notably the private member’s bill he introduced in 2008, really need to properly explain the context in which this parliament now comes to be considering the proposal contained in this bill for a national security legislation monitor. Put in its full context, what we can see is that the member for Kooyong, as far back as 2005 in a paper that he gave to the Castan Centre for Human Rights Law, which does great work—it is a centre associated with Monash University—was even then urging that Australia adopt the model of an independent reviewer or an independent monitor for national security legislation. Regrettably—and I can be a bit partisan about this—the Howard government, which introduced this large suite of antiterror legislation from late 2001 to 2005, did not take up the suggestion that was made by the member for Kooyong, not only in the paper he gave in 2005 but repeatedly and publicly in all the years since, and it has been left to the present government to act on not merely the suggestion made by the member for Kooyong but also the suggestions, recommendations and proposals put forward by successive reports to the parliament and by successive public calls elsewhere to act on those calls and introduce a national security legislation monitor, which is what is now the proposal contained in this legislation.

It is worth referring to the analysis and suggestions put forward by the Sheller review in 2005, tabled by the then Attorney-General in 2006, where there was consideration of a number of possible models for achieving review of national security legislation. It is worth referring, in particular, to the unanimous report of the Parliamentary Joint Committee on Intelligence and Security from 2006, which made the clearest possible call for a recommendation that the government appoint an independent person of high standing as an independent reviewer of terrorism law in Australia, that the independent reviewer be free to set priorities and have access to all necessary information calling for regular reporting and indeed recommending an appropriate link between the Parliamentary Joint Committee on Intelligence and Security and an independent reviewer, if one were to be introduced. The Parliamentary Joint Committee on Intelligence and Security, of which I am proud to be one of the present members, returned to the topic in a report in September 2007, again reminding the government that it had earlier called for the establishment of an independent reviewer and again calling for the introduction of such a mechanism. More recently, in the investigation that was conducted by retired Supreme Court judge John Clarke in 2008 into the case of Dr Mohamed Haneef, John Clarke QC recommended that consideration be given to the appointment of an independent reviewer of Commonwealth counterterrorism laws.

Across the board there have been repeated calls for the introduction of an independent reviewer or an independent monitor, and it is very pleasing to see in this bill the introduction of that particular oversight mechanism. The member for Kooyong, in all of his calls for this, has referred to the longstanding institution of the same type in the United Kingdom. I met with Lord Carlile, who is the present occupant of the monitor role in the United Kingdom, here in Canberra and again last July in London. His precise title is ‘independent reviewer’. I have had the benefit of speaking to him and hearing his views about the role that he has been able to play as the independent reviewer. If any member of this House is interested in the role of the independent monitor that this legislation establishes, I commend to them the multiple reports of Lord Carlile. His most recent report is dated 1 February 2010 and it looks in very considerable detail at the role of control orders, a device that has been adopted here in Australia and happily one which is infrequently used in Australia. In his most recent report in the United Kingdom, Lord Carlile looks at their control order system and makes some very considered and thoughtful recommendations about the continuing need for a control order system, and suggests that the number of cases in which control orders are really needed to be used is very small. He also suggests that other mechanisms might be adopted where the objective is to prevent travel abroad by particular persons.

If anyone is seeking to learn or contemplate what role an independent reviewer or the independent monitor might play, the recent reports of Lord Carlile show just what a useful role can be played by an independent reviewer because it has the effect of taking out of day-to-day partisan political debate consideration of what should be very important issues for the community. They are long-term issues and they enable a more measured consideration of the balance between empowering our authorities in a sufficient way to fight terrorism and, at the same time, maintaining respect for individual liberty and maintaining the rule of law. What must never be forgotten in all of the consideration of this kind of legislation, in considering what should be the extent of powers that are given to authorities and what should be the extent of oversight of those powers, is that maintenance of the rule of law and preserving individual liberty are key weapons in the fight against terrorism.

The bill, as initially introduced by the government, has been looked at in very considerable detail by the Senate Finance and Public Administration Legislation Committee, and I commend to the House the work of that committee. The committee received dozens of submissions, most of them commending the essence of the proposal to establish a national security legislation monitor, but many of the submissions also expressed some detailed criticisms of some aspects of the bill. Following the receipt of that report from the Senate committee, the government has accepted many of the recommendations made by the committee. The House now has before it a considerably improved model for the national security legislation monitor.

We have now an amendment to the bill which includes the word ‘independent’ as the description of the monitor. We have better reporting requirements. We have better arrangements for the monitor to be able to receive suggestions from the Parliamentary Joint Committee on Intelligence and Security. It is hoped that the legislation will pass quickly and that an appointment can be made to the monitor position soon. Coming into operation will be processes to enable review of the large body of antiterror and national security legislation that has come into existence since the dreadful attacks in New York in 2001. I am hoping that we are going to see improvements to Australia’s national security legislation out of the process of review, both regular and special, that is to be conducted by the monitor. We are going to see measured consideration of Australia’s national security legislation. We are going to see discussion conducted slightly outside the atmosphere of partisan political debate about where the balance should be struck between the protection of individual liberty and arming our authorities with appropriate powers. I commend the bill to the House.