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A Bill for an Act to amend legislation relating to the Independent National Security Legislation Monitor, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 03 Dec 2014
Introduced Senate 03 Dec 2014
Table of contents.

2013‑2014

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

Independent National Security Legislation Monitor (Improved Oversight and Resourcing) Bill 2014

 

No.      , 2014

 

(Senator Wright)

 

 

 

A Bill for an Act to amend legislation relating to the Independent National Security Legislation Monitor, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedule(s)......................................................................................... 2

Schedule 1—Amendments                                                                                                3

Part 1—Amendment of the Independent National Security Legislation Monitor Act 2010        3

Independent National Security Legislation Monitor Act 2010                          3

Part 2—Other amendments                                                                                      10

Australian Human Rights Commission Act 1986                                                10

 

 


A Bill for an Act to amend legislation relating to the Independent National Security Legislation Monitor, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Independent National Security Legislation Monitor (Improved Oversight and Resourcing) Act 2014.

2  Commencement

                   This Act commences on the day this Act receives the Royal Assent.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

Part 1Amendment of the Independent National Security Legislation Monitor Act 2010

Independent National Security Legislation Monitor Act 2010

1  Section 3

After “counter‑terrorism and national security legislation”, insert “and proposed counter‑terrorism and national security legislation”.

2  Paragraphs 3(a) and (b)

After “is”, insert “, or would be,”.

3  After paragraph 3(b)

Insert:

                   (ba)  is, or would be, proportionate to any threats of terrorism and threats to national security; and

4  Paragraph 3(c)

After “is”, insert “, or would be,”.

5  Section 4

Insert:

Committee on Legal and Constitutional Affairs means either of the following committees established by order of the Senate:

                     (a)  the Legal and Constitutional Affairs Legislation Committee;

                     (b)  the Legal and Constitutional Affairs References Committee.

proposed Commonwealth legislation means a Bill for an Act that has been introduced into either House of the Parliament, and includes an exposure draft of a Bill for an Act.

proposed counter‑terrorism and national security legislation means:

                     (a)  proposed Commonwealth legislation that amends, repeals or otherwise relates to counter‑terrorism and national security legislation; and

                     (b)  proposed Commonwealth legislation that would, if enacted, be of a similar character to counter‑terrorism and national security legislation.

6  After section 5

Insert:

5A  The Office of the Independent National Security Legislation Monitor

                   For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

                     (a)  the following group of persons is a listed entity:

                              (i)  the Independent National Security Legislation Monitor;

                             (ii)  the staff assisting the Monitor referred to in section 20A; and

                     (b)  the listed entity is to be known as the Office of the Independent National Security Legislation Monitor; and

                     (c)  the Monitor is the accountable authority of the Office of the Independent National Security Legislation Monitor; and

                     (d)  the persons referred to in paragraph (a) are officials of the Office of the Independent National Security Legislation Monitor; and

                     (e)  the purposes of the Office of the Independent National Security Legislation Monitor include the functions of the Monitor referred to in section 6.

7  After subparagraph 6(1)(a)(i)

Insert:

                            (ia)  proposed counter‑terrorism and national security legislation; and

8  Paragraph 6(1)(b)

After “legislation”, insert “or proposed legislation”.

9  Subparagraphs 6(1)(b)(ii) and (iii)

After “remains”, insert “, or would be,”.

10  At the end of subsection 6(1)

Add:

                   ; (e)  if a matter relating to Australia’s counter‑terrorism and national security legislation or proposed counter‑terrorism and national security legislation is referred to the Monitor by the Australian Human Rights Commission—to report on the reference.

11  Subsection 6(1A)

After “Intelligence and Security”, insert “or a Committee on Legal and Constitutional Affairs”.

12  After section 7A

Insert:

7B  References to the Independent National Security Legislation Monitor by Committee on Legal and Constitutional Affairs

             (1)  A Committee on Legal and Constitutional Affairs may refer to the Independent National Security Legislation Monitor a matter that the Committee:

                     (a)  becomes aware of in the course of performing its functions; and

                     (b)  considers should be referred to the Monitor.

             (2)  It is a function of the Committee on Legal and Constitutional Affairs to refer the matter to the Independent National Security Legislation Monitor.

13  Subsections 10(1) and (2)

After “counter‑terrorism and national security legislation”, insert “or proposed counter‑terrorism and national security legislation”.

14  Subsection 11(1)

Omit “, on a part‑time basis”, substitute “, on a full‑time basis”.

15  After subsection 11(2)

Insert:

          (2A)  If the office of Independent National Security Legislation Monitor is vacant (whether or not a person is acting as the Monitor), a recommendation referred to in subsection (2) must be made to the Governor‑General before the end of 3 calendar months after the office became vacant.

16  Application

If the office of Independent National Security Legislation Monitor is vacant on the day this Schedule commences, subsection 11(2A) of the Independent National Security Legislation Monitor Act 2010 as inserted by item 15 applies in relation to the vacancy as if the reference in that subsection to 3 calendar months after the office became vacant were a reference to one calendar month after the day this Schedule commences.

17  At the end of Part 2

Add:

Division 3Staff

20A  Staff

             (1)  The staff of the Independent National Security Legislation Monitor are to be:

                     (a)  persons engaged under the Public Service Act 1999; and

                     (b)  any persons employed under subsection (3).

             (2)  For the purposes of the Public Service Act 1999:

                     (a)  the Independent National Security Legislation Monitor and the staff of the Monitor who are APS employees together constitute a Statutory Agency; and

                     (b)  the Monitor is the Head of that Statutory Agency.

             (3)  The Independent National Security Legislation Monitor may, by written agreement, employ a person to assist the Monitor to perform functions and exercise powers under Division 1 for the purposes of a particular inquiry specified in the agreement, as delegated under section 20B.

             (4)  However, the Independent National Security Legislation Monitor may only employ a person in relation to a particular inquiry if the responsible Minister is satisfied that:

                     (a)  it is necessary to employ a person in relation to the particular inquiry; and

                     (b)  the person has the expertise appropriate to the inquiry.

             (5)  The Independent National Security Legislation Monitor must determine in writing the terms and conditions of employment of the persons mentioned in paragraph (1)(b).

             (6)  Unless the responsible Minister otherwise agrees in relation to a particular inquiry, the person proposed to be employed in relation to the inquiry must be cleared for security purposes to at least the same level, and at the same frequency, as staff members of ASIS.

20B  Delegation

             (1)  The Independent National Security Legislation Monitor may, by writing signed by the Monitor, delegate all or any of his or her functions or powers under Division 1 to a person referred to in subsection 20A(3) for the purposes of the particular inquiry concerned.

Note 1:       For further provisions relating to delegations, see sections 34AB and 34A of the Acts Interpretation Act 1901.

Note 2:       For variation and revocation of an instrument of delegation, see subsection 33(3) of the Acts Interpretation Act 1901.

             (2)  In exercising functions or powers under a delegation, the delegate must comply with any written directions of the Independent National Security Legislation Monitor.

             (3)  On request by a person affected by a delegate’s performance of a function, or exercise of a power, the delegate must produce the instrument of delegation (or a copy of it) for the person to inspect.

18  Paragraph 29(1)(a)

Omit “and (b)”, substitute “, (b) and (e)”.

19  After subsection 29(5)

Insert:

             (6)  Within 6 months after a report is presented to a House of the Parliament under subsection (5), the Prime Minister must make a statement to the Parliament setting out the action that the Government proposes to take in relation to the report.

20  At the end of section 30

Add:

             (7)  Within 6 months after a report is presented to a House of the Parliament under subsection (6), the Prime Minister must make a statement to the Parliament setting out the action that the Government proposes to take in relation to the report.

21  At the end of Part 4

Add:

30A  Report on a reference by the Committee on Intelligence and Security or a Committee on Legal and Constitutional Affairs

             (1)  If a committee refers a matter to the Independent National Security Legislation Monitor under section 7A or 7B, the Monitor must report to the Chair of the committee (the committee Chair) on the reference.

             (2)  The Independent National Security Legislation Monitor may, before giving his or her report on a reference, give an interim report to the committee Chair on the Monitor’s work on the reference.

             (3)  The committee Chair may, before the Independent National Security Legislation Monitor gives his or her report on a reference, direct the Monitor to give an interim report to the committee Chair on the Monitor’s work on the reference.

             (4)  If the Independent National Security Legislation Monitor considers that a report to the committee Chair under subsection (1) or (3) contains information of the kind referred to in subsection 29(3), the Monitor must also prepare and give to the committee Chair, at the same time as the report, a version of the report which does not contain that information (a declassified committee report).

             (5)  In determining whether a report contains information of the kind referred to in subsection 29(3), the Independent National Security Legislation Monitor may consult the responsible Minister or responsible Ministers concerned.

             (6)  The committee Chair must cause a copy of:

                     (a)  each report under subsections (1) and (3); or

                     (b)  if a report contains information of the kind referred to in subsection 29(3)—the corresponding declassified committee report;

to be presented to each House of the Parliament within 15 sitting days of that House after the day on which he or she receives the report.

             (7)  Within 6 months after a report is presented to a House of the Parliament under subsection (6), the Prime Minister must make a statement to the Parliament setting out the action that the Government proposes to take in relation to the report.

22  Section 31

Before “No”, insert “(1)”.

23  At the end of section 31

Add:

             (2)  No action, suit or proceeding may be brought against a person who is, or has been, a member of the staff of the Independent National Security Legislation Monitor in relation to anything done, or omitted to be done, in good faith by the person in the performance of his or her duties as a member of the staff of the Monitor.

Part 2Other amendments

Australian Human Rights Commission Act 1986

24  At the end of section 11

Add:

             (5)  If the Commission is of the opinion that, having regard to the functions and powers of the Independent National Security Monitor and the object of the Independent National Security Legislation Monitor Act 2010, it would be appropriate for the Commission to refer a matter relating to Australia’s counter‑terrorism and national security legislation or proposed counter‑terrorism and national security legislation (within the meaning of that Act) to the Monitor, the Commission may do so.

             (6)  The referral of a matter to the Independent National Security Monitor under subsection (5) does not prevent the Commission performing its functions under this Act in relation to the matter.