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Independent National Security Legislation Monitor Act 2010

Authoritative Version
  • - C2016C00113
  • In force - Superseded Version
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Act No. 32 of 2010 as amended, taking into account amendments up to Australian Citizenship Amendment (Allegiance to Australia) Act 2015
An Act to provide for the appointment of an Independent National Security Legislation Monitor, and for related purposes
Administered by: Prime Minister and Cabinet
Registered 04 Feb 2016
Start Date 12 Dec 2015
End Date 06 Jun 2017

Independent National Security Legislation Monitor Act 2010

No. 32, 2010

Compilation No. 7

Compilation date:                              12 December 2015

Includes amendments up to:            Act No. 166, 2015

Registered:                                         4 February 2016

 

About this compilation

This compilation

This is a compilation of the Independent National Security Legislation Monitor Act 2010 that shows the text of the law as amended and in force on 12 December 2015 (the compilation date).

This compilation was prepared on 22 January 2016.

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on ComLaw for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on ComLaw for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

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

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

3............ Object.................................................................................................. 1

4............ Definitions.......................................................................................... 2

Part 2—Independent National Security Legislation Monitor                     6

Division 1—Establishment, functions and powers of Independent National Security Legislation Monitor                                                                                                                        6

5............ Independent National Security Legislation Monitor............................ 6

6............ Functions of the Independent National Security Legislation Monitor. 6

7............ References to the Independent National Security Legislation Monitor by the Prime Minister  8

7A......... References to the Independent National Security Legislation Monitor by the Committee on Intelligence and Security............................................................................................................ 8

8............ Regard to be had to international obligations and constitutional arrangements         8

9............ Emphasis to be given to counter‑terrorism and national security legislation that has been applied or considered recently............................................................................................................ 9

10.......... Consultation with agencies etc............................................................ 9

Division 2—Appointment of Independent National Security Legislation Monitor          11

11.......... Appointment..................................................................................... 11

12.......... Term of appointment......................................................................... 11

13.......... Remuneration and allowances........................................................... 11

14.......... Leave of absence............................................................................... 12

15.......... Outside employment......................................................................... 12

16.......... Disclosure of interests to the Prime Minister.................................... 12

17.......... Other terms and conditions............................................................... 12

18.......... Resignation....................................................................................... 13

19.......... Termination of appointment.............................................................. 13

20.......... Acting Independent National Security Legislation Monitor.............. 13

Part 3—Information gathering powers                                                                  15

21.......... Independent National Security Legislation Monitor may hold hearings 15

22.......... Independent National Security Legislation Monitor may summon person               15

23.......... Evidence on oath or by affirmation................................................... 16

24.......... Independent National Security Legislation Monitor may request production of a document or thing       16

25.......... Offences............................................................................................ 17

26.......... No criminal or civil liability under secrecy provisions...................... 18

27.......... Independent National Security Legislation Monitor may retain documents or things               19

28.......... Protection of information and documents.......................................... 19

Part 4—Reporting requirements                                                                                21

29.......... Annual report.................................................................................... 21

30.......... Report on a reference by the Prime Minister..................................... 22

Part 5—Miscellaneous                                                                                                       24

31.......... Immunity from legal action............................................................... 24

32.......... Regulations....................................................................................... 24

Endnotes                                                                                                                                    25

Endnote 1—About the endnotes                                                                            25

Endnote 2—Abbreviation key                                                                                26

Endnote 3—Legislation history                                                                             27

Endnote 4—Amendment history                                                                           28


An Act to provide for the appointment of an Independent National Security Legislation Monitor, and for related purposes

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Independent National Security Legislation Monitor Act 2010.

2  Commencement

                   This Act commences on the day after it receives the Royal Assent.

3  Object

                   The object of this Act is to appoint an Independent National Security Legislation Monitor who will assist Ministers in ensuring that Australia’s counter‑terrorism and national security legislation:

                     (a)  is effective in deterring and preventing terrorism and terrorism‑related activity which threatens Australia’s security; and

                     (b)  is effective in responding to terrorism and terrorism‑related activity; and

                     (c)  is consistent with Australia’s international obligations, including:

                              (i)  human rights obligations; and

                             (ii)  counter‑terrorism obligations; and

                            (iii)  international security obligations; and

                     (d)  contains appropriate safeguards for protecting the rights of individuals.

4  Definitions

                   In this Act:

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 means the following provisions of Commonwealth law:

                    (aa)  sections 33AA, 35 and 35A of the Australian Citizenship Act 2007 and any other provision of that Act as far as it relates to those sections;

                     (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 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.

Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.

head means:

                     (a)  in relation to the Australian Federal Police—the Commissioner of Police; or

                     (b)  in relation to the Australian Crime Commission—the Chief Executive Officer of the Australian Crime Commission; or

                     (d)  in relation to the Australian Security Intelligence Organisation—the Director‑General of Security; or

                     (e)  in relation to the Australian Secret Intelligence Service—the Director‑General of the Australian Secret Intelligence Service; or

                      (f)  in relation to the part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation—the Director of that part of the Department; or

                     (g)  in relation to the part of the Defence Department known as the Defence Intelligence Organisation—the Director of that part of the Department; or

                     (h)  in relation to the part of the Defence Department known as the Australian Signals Directorate—the Director of that part of the Department; or

                      (i)  in relation to any other part of the Defence Department—the Chief of the Defence Force and the Secretary of the Department; or

                      (j)  in relation to the Office of National Assessments established by the Office of National Assessments Act 1977—the Director‑General of the Office of National Assessments; or

                     (k)  in relation to any other Commonwealth government agency:

                              (i)  in the case of a Department of the Commonwealth—the Secretary of the Department; or

                             (ii)  in the case of a body established for a public purpose—the person holding, or performing the duties of, the principal office in respect of the body; or

                      (l)  in relation to a State or Territory government agency—the person holding, or performing the duties of, the principal office in respect of the agency.

Immigration and Border Protection Department means the Department administered by the Minister administering the Australian Border Force Act 2015.

Independent National Security Legislation Monitor means the person appointed in accordance with section 11.

law enforcement or security agency means any of the following agencies:

                     (a)  the Australian Federal Police;

                     (b)  the Australian Crime Commission;

                     (c)  the Immigration and Border Protection Department;

                     (d)  the Australian Security Intelligence Organisation;

                     (e)  the Australian Secret Intelligence Service;

                      (f)  the Australian Defence Force;

                     (g)  the part of the Defence Department known as the Australian Geospatial‑Intelligence Organisation;

                     (h)  the part of the Defence Department known as the Defence Intelligence Organisation;

                      (i)  the part of the Defence Department known as the Australian Signals Directorate;

                      (j)  the Office of National Assessments established by the Office of National Assessments Act 1977;

                     (k)  the police force of a State or Territory;

                      (l)  any other agency prescribed by the regulations for the purposes of this definition.

operationally sensitive information means:

                     (a)  information about information sources or operational activities or methods available to a law enforcement or security agency; or

                     (b)  information about particular operations that have been, are being or are proposed to be undertaken by a law enforcement or security agency, or about proceedings relating to those operations; or

                     (c)  information provided by a foreign government, or by an agency of a foreign government, where that government does not consent to the public disclosure of the information.

responsible Minister, in relation to a review of a matter, means the Minister (including a State or Territory Minister) responsible for the agency concerned in relation to the matter.

secrecy provision means:

                     (a)  a provision of a law of the Commonwealth, of a State or of a Territory, being a provision that purports to prohibit; or

                     (b)  anything done, under a provision of a law of the Commonwealth, of a State or of a Territory, to prohibit;

the communication, divulging or publication of information, the production of, or the publication of the contents of, a document, or the production of a thing.

Part 2Independent National Security Legislation Monitor

Division 1Establishment, functions and powers of Independent National Security Legislation Monitor

5  Independent National Security Legislation Monitor

                   There is to be an Independent National Security Legislation Monitor.

6  Functions of the Independent National Security Legislation Monitor

             (1)  The Independent National Security Legislation Monitor has the following functions:

                     (a)  to review, on his or her own initiative, the operation, effectiveness and implications of:

                              (i)  Australia’s counter‑terrorism and national security legislation; and

                             (ii)  any other law of the Commonwealth to the extent that it relates to Australia’s counter‑terrorism and national security legislation;

                     (b)  to consider, on his or her own initiative, whether any legislation mentioned in paragraph (a):

                              (i)  contains appropriate safeguards for protecting the rights of individuals; and

                             (ii)  remains proportionate to any threat of terrorism or threat to national security, or both; and

                            (iii)  remains necessary;

                     (c)  if a matter relating to counter‑terrorism or national security is referred to the Monitor by the Prime Minister—to report on the reference;

                     (d)  to assess whether Australia’s counter‑terrorism or national security legislation is being used for matters unrelated to terrorism and national security.

          (1A)  If a matter is referred to the Independent National Security Legislation Monitor by the Committee on Intelligence and Security, the Monitor may perform the function set out in paragraph (1)(a) or (b) in relation to the matter.

          (1B)  The Independent National Security Legislation Monitor must complete the review under paragraph (1)(a) of the following counter‑terrorism and national security legislation by 7 September 2017:

                     (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)  Division 3A of Part IAA of the Crimes Act 1914 and any other provision of that Act as far as it relates to that Division;

                     (c)  Divisions 104 and 105 of the Criminal Code and any other provision of the Criminal Code Act 1995 as far as it relates to those Divisions;

                     (d)  sections 119.2 and 119.3 of the Criminal Code and any other provision of the Criminal Code Act 1995 as far as it relates to those sections.

             (2)  To avoid doubt, the following are not functions of the Independent National Security Legislation Monitor:

                     (a)  to review the priorities of, and use of resources by, agencies that have functions relating to, or are involved in the implementation of, Australia’s counter‑terrorism and national security legislation;

                     (b)  to consider any individual complaints about the activities of Commonwealth agencies that have functions relating to, or are involved in the implementation of, Australia’s counter‑terrorism and national security legislation.

             (3)  The Independent National Security Legislation Monitor has the power to do all things necessary or convenient to be done for or in connection with the performance of the Monitor’s functions.

7  References to the Independent National Security Legislation Monitor by the Prime Minister

             (1)  The Prime Minister may refer a matter relating to counter‑terrorism or national security to the Independent National Security Legislation Monitor, either at the Monitor’s suggestion or on his or her own initiative.

             (2)  The Prime Minister may alter the terms of a reference.

             (3)  The Prime Minister may give the Independent National Security Legislation Monitor directions about the order in which he or she is to deal with references.

7A  References to the Independent National Security Legislation Monitor by the Committee on Intelligence and Security

             (1)  The Committee on Intelligence and Security 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 under subsection 29(1) of the Intelligence Services Act 2001; and

                     (b)  considers should be referred to the Monitor.

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

8  Regard to be had to international obligations and constitutional arrangements

                   When performing the Independent National Security Legislation Monitor’s functions, the Monitor must have regard to:

                     (a)  Australia’s obligations under international agreements (as in force from time to time), including:

                              (i)  human rights obligations; and

                             (ii)  counter‑terrorism obligations; and

                            (iii)  international security obligations; and

                     (b)  arrangements agreed from time to time between the Commonwealth, the States and the Territories to ensure a national approach to countering terrorism.

9  Emphasis to be given to counter‑terrorism and national security legislation that has been applied or considered recently

                   When performing functions relating to Australia’s counter‑terrorism and national security legislation in a particular financial year, the Independent National Security Legislation Monitor must give particular emphasis to provisions of that legislation that have been applied, considered or purportedly applied by employees of agencies that have functions relating to, or are involved in the implementation of, that legislation during that financial year or the immediately preceding financial year.

10  Consultation with agencies etc.

             (1)  When performing functions relating to Australia’s counter‑terrorism and national security legislation, the Independent National Security Legislation Monitor must have regard to:

                     (a)  the functions of agencies that have functions relating to, or are involved in the implementation of, that legislation; and

                     (b)  functions relating to that legislation that are conferred on a person who holds any office or appointment under a law of the Commonwealth or of a State or Territory.

             (2)  When performing functions relating to Australia’s counter‑terrorism and national security legislation, the Independent National Security Legislation Monitor may consult with:

                     (b)  the Ombudsman; or

                     (c)  the Inspector‑General of Intelligence and Security; or

                    (ca)  the Human Rights Commissioner; or

                   (cb)  the Privacy Commissioner; or

                    (cc)  the head of an agency established by a law of the Commonwealth or of a State or Territory; or

                     (d)  a person mentioned in paragraph (1)(b);

as the Monitor considers necessary.

Division 2Appointment of Independent National Security Legislation Monitor

11  Appointment

             (1)  The Independent National Security Legislation Monitor is to be appointed by the Governor‑General by written instrument, on a part‑time basis.

             (2)  Before a recommendation is made to the Governor‑General for the appointment of a person as the Independent National Security Legislation Monitor, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives.

             (3)  A person must not be appointed as the Independent National Security Legislation Monitor unless the person is, in the Governor‑General’s opinion, suitable for appointment because of the person’s qualifications, training or experience.

             (4)  A person’s appointment as the Independent National Security Legislation Monitor is not invalid because of a defect or irregularity in connection with the person’s appointment.

12  Term of appointment

             (1)  The Independent National Security Legislation Monitor holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.

             (2)  The Independent National Security Legislation Monitor is eligible for reappointment once only.

13  Remuneration and allowances

             (1)  The Independent National Security Legislation Monitor is to be paid such remuneration as is determined by the Remuneration Tribunal. If no determination of that remuneration is in operation, the Monitor is to be paid such remuneration as is prescribed by the regulations.

             (2)  The Independent National Security Legislation Monitor is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

14  Leave of absence

                   The Prime Minister may grant leave of absence to the Independent National Security Legislation Monitor on the terms and conditions that the Governor‑General determines in writing.

15  Outside employment

                   The Independent National Security Legislation Monitor must not engage in any paid employment that conflicts or may conflict with the proper performance of his or her duties without the Prime Minister’s written consent.

16  Disclosure of interests to the Prime Minister

                   The Independent National Security Legislation Monitor must give written notice to the Prime Minister of all interests, pecuniary or otherwise, that the Monitor has or acquires and that conflict or could conflict with the proper performance of his or her functions.

17  Other terms and conditions

                   The Independent National Security Legislation Monitor holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined, in writing, by the Governor‑General.

18  Resignation

             (1)  The Independent National Security Legislation Monitor may resign by giving to the Governor‑General a signed notice of resignation.

             (2)  The resignation takes effect on the day on which it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

19  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Independent National Security Legislation Monitor for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General must terminate the appointment of the Independent National Security Legislation Monitor:

                     (a)  if the Monitor:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors; or

                     (b)  if the Monitor fails, without reasonable excuse, to comply with section 16; or

                     (c)  if the Monitor engages, except with the Prime Minister’s written consent, in paid employment that conflicts or may conflict with the proper performance of the Monitor’s duties; or

                     (d)  if the Monitor is absent, except on leave of absence granted under section 14, for 7 consecutive days or for 14 days in any 12 months.

20  Acting Independent National Security Legislation Monitor

                   The Prime Minister may appoint a person to act as the Independent National Security Legislation Monitor:

                     (a)  during a vacancy in the office of the Monitor (whether or not an appointment has previously been made to the office); or

                     (b)  during a period, or during all periods, when the Monitor:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office;

                            so long as the period, or the total of all periods, is not more than 12 months.

Note:          For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

Part 3Information gathering powers

  

21  Independent National Security Legislation Monitor may hold hearings

             (1)  The Independent National Security Legislation Monitor may hold a hearing for the purposes of performing his or her functions under this Act.

             (2)  A hearing, or a part of a hearing:

                     (a)  may be held in private if the Independent National Security Legislation Monitor so directs; and

                     (b)  must be held in private for any time during which a person is giving evidence that discloses operationally sensitive information.

Otherwise, a hearing must be held in public.

             (3)  A hearing may otherwise be conducted in such a manner as the Independent National Security Legislation Monitor thinks fit.

             (4)  The Independent National Security Legislation Monitor must ensure that a record of a hearing is made.

             (5)  A direction given under paragraph (2)(a) is not a legislative instrument.

22  Independent National Security Legislation Monitor may summon person

             (1)  The Independent National Security Legislation Monitor may, by notice in writing, summon a person to attend a hearing at a time and place specified in the notice:

                     (a)  to give evidence; or

                     (b)  to produce documents or things specified in the notice.

Note:          Failure to comply with a notice is an offence: see section 25.

             (2)  The notice must:

                     (a)  be in writing and be signed by the Independent National Security Legislation Monitor; and

                     (b)  be served on the person required to attend a hearing.

             (3)  A time specified in a notice must be at least 14 days after the day on which the notice is given.

             (4)  A person summoned to appear as a witness at a hearing is entitled to be paid by the Commonwealth any allowances for travelling and other expenses that are prescribed by the regulations.

23  Evidence on oath or by affirmation

             (1)  At a hearing, the Independent National Security Legislation Monitor may:

                     (a)  require a witness to either take an oath or make an affirmation; and

                     (b)  administer an oath or affirmation to the witness.

Note 1:       Failure to take an oath or make an affirmation is an offence: see section 25.

Note 2:       This means that a hearing is a judicial proceeding for the purposes of Part III of the Crimes Act 1914, which creates various offences in relation to judicial proceedings.

             (2)  The oath or affirmation is an oath or affirmation that the evidence the person will give will be true.

             (3)  The Independent National Security Legislation Monitor may allow a person attending a hearing who has been sworn, or who has made an affirmation, to give evidence by tendering a written statement and verifying it by oath or affirmation.

24  Independent National Security Legislation Monitor may request production of a document or thing

             (1)  For the purposes of performing his or her functions under this Act, the Independent National Security Legislation Monitor may request, by written notice, a person:

                     (a)  to give the Monitor the information referred to in the notice; or

                     (b)  to produce to the Monitor the documents or things referred to in the notice.

Note:          Failure to give the information, or produce the documents or things, is an offence: see section 25.

             (2)  The notice must:

                     (a)  be in writing; and

                     (b)  specify the period within which the person must comply with the notice.

             (3)  The period specified in a notice must end at least 14 days after the day on which the notice is given.

25  Offences

Failure to attend hearing

             (1)  A person commits an offence if:

                     (a)  the person is served with a notice to attend a hearing; and

                     (b)  the person fails to attend as required by the notice.

Penalty:  Imprisonment for 6 months or 30 penalty units, or both.

Failure to swear an oath, make an affirmation or answer a question

             (2)  A person commits an offence if:

                     (a)  the person is served with a notice to attend a hearing; and

                     (b)  either:

                              (i)  the person fails to be sworn or to make an affirmation at the hearing; or

                             (ii)  the person fails to answer a question at the hearing that the Independent National Security Legislation Monitor requires the person to answer.

Penalty:  Imprisonment for 6 months or 30 penalty units, or both.

Failure to produce a document or thing

             (3)  A person commits an offence if:

                     (a)  the person receives a notice to produce a document or thing specified in the notice; and

                     (b)  the person fails to produce the document or thing that the person was required to produce.

Penalty:  Imprisonment for 6 months or 30 penalty units, or both.

Failure to provide information

             (4)  A person commits an offence if:

                     (a)  the person receives a notice to provide information specified in the notice; and

                     (b)  the person fails to provide the information that the person was required to provide.

Penalty:  Imprisonment for 6 months or 30 penalty units, or both.

Exception—reasonable excuse

             (5)  This section does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

             (6)  It is a reasonable excuse for a person to fail to:

                     (a)  answer a question; or

                     (b)  produce a document or thing; or

                     (c)  provide information;

on the ground that to do so might tend to incriminate the person or expose the person to a penalty.

26  No criminal or civil liability under secrecy provisions

                   A person who is served with a notice under section 22 or 24 does not commit an offence, and is not liable to any penalty, under a secrecy provision because the person:

                     (a)  answers a question at a hearing that the Independent National Security Legislation Monitor requires the person to answer; or

                     (b)  provides information that the person is required to provide in accordance with the notice; or

                     (c)  produces a document or thing that the person is required to produce in accordance with the notice.

27  Independent National Security Legislation Monitor may retain documents or things

             (1)  Subject to section 28, if a document or thing is produced to the Independent National Security Legislation Monitor in accordance with section 22 or 24, the Monitor:

                     (a)  may take possession of, and make copies of, the document or thing, or take extracts from the document; and

                     (b)  may retain possession of the document or thing for such period as is necessary for the performance of the Monitor’s functions under this Act.

             (2)  While the Independent National Security Legislation Monitor retains the document or thing, the Monitor must allow a person who would otherwise be entitled to possession of the document or thing, or a person authorised by that person:

                     (a)  reasonable access to the document for the purposes of inspecting and making copies of, or taking extracts from, it; and

                     (b)  reasonable access to the thing.

28  Protection of information and documents

             (1)  This section applies if documents having a national security classification or containing operationally sensitive information are provided by an agency to the Independent National Security Legislation Monitor.

             (2)  The Independent National Security Legislation Monitor must:

                     (a)  make arrangements with the head of the agency for the protection of those documents while they remain in the Monitor’s possession; and

                     (b)  ensure that the documents are returned to the agency as soon as possible after the Monitor has examined them.

Part 4Reporting requirements

  

29  Annual report

             (1)  The Independent National Security Legislation Monitor must prepare and give to the Prime Minister a report (an annual report):

                     (a)  relating to the performance of the Monitor’s functions as set out in paragraphs 6(1)(a) and (b); and

                     (b)  containing such details relating to the performance of the Monitor’s function as set out in paragraph 6(1)(c) as the Monitor considers appropriate.

             (2)  The annual report must be given to the Prime Minister as soon as practicable after 30 June in each financial year and, in any event, by the following 31 December.

          (2A)  If the Independent National Security Legislation Monitor considers that the annual report contains information of the kind referred to in subsection (3), the Monitor must also prepare and give to the Prime Minister, at the same time as the annual report, a version of the report which does not contain that information (a declassified annual report).

             (3)  The information specified by this subsection is information of the following kind:

                     (a)  any operationally sensitive information; or

                     (b)  any information that would or might prejudice:

                              (i)  Australia’s national security or the conduct of Australia’s foreign relations; or

                             (ii)  the performance by a law enforcement or security agency of its functions; or

                     (c)  any information that, if included in the report, would or might endanger a person’s safety; or

                     (d)  any information obtained from a document prepared for the purposes of a meeting of:

                              (i)  the Cabinet, or of a Committee of the Cabinet, of the Commonwealth or of a State; or

                             (ii)  the Australian Capital Territory Executive or of a committee of that Executive; or

                            (iii)  the Executive Council of the Northern Territory or of a committee of that Executive Council; or

                     (e)  any information that would disclose the deliberations or decisions of:

                              (i)  the Cabinet, or of a Committee of the Cabinet, of the Commonwealth or of a State; or

                             (ii)  the Australian Capital Territory Executive or of a committee of that Executive; or

                            (iii)  the Executive Council of the Northern Territory or of a committee of that Executive Council.

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

             (5)  The Prime Minister must cause a copy of:

                     (a)  each annual report; or

                     (b)  if an annual report contains information of the kind referred to in subsection (3)—the corresponding declassified annual 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.

             (8)  Section 34C of the Acts Interpretation Act 1901 does not apply in relation to a report given to the Prime Minister under this section.

30  Report on a reference by the Prime Minister

             (1)  The Independent National Security Legislation Monitor must report to the Prime Minister on a reference made under section 7.

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

             (3)  The Prime Minister 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 Prime Minister on the Monitor’s work on the reference.

             (4)  If the Independent National Security Legislation Monitor considers that a report to the Prime Minister 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 Prime Minister, at the same time as the report, a version of the report which does not contain that information (a declassified 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 Prime Minister 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 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.

Part 5Miscellaneous

  

31  Immunity from legal action

                   No action, suit or proceeding may be brought against a person who is, or has been, the Independent National Security Legislation Monitor in relation to anything done, or omitted to be done, in good faith by the Monitor:

                     (a)  in the performance, or purported performance, of his or her functions; or

                     (b)  in the exercise, or purported exercise, or his or her powers.

32  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnotes about misdescribed amendments and other matters are included in a compilation only as necessary.

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

 

A = Act

o = order(s)

ad = added or inserted

Ord = Ordinance

am = amended

orig = original

amdt = amendment

par = paragraph(s)/subparagraph(s)

c = clause(s)

    /sub‑subparagraph(s)

C[x] = Compilation No. x

pres = present

Ch = Chapter(s)

prev = previous

def = definition(s)

(prev…) = previously

Dict = Dictionary

Pt = Part(s)

disallowed = disallowed by Parliament

r = regulation(s)/rule(s)

Div = Division(s)

Reg = Regulation/Regulations

exp = expires/expired or ceases/ceased to have

reloc = relocated

    effect

renum = renumbered

F = Federal Register of Legislative Instruments

rep = repealed

gaz = gazette

rs = repealed and substituted

LI = Legislative Instrument

s = section(s)/subsection(s)

LIA = Legislative Instruments Act 2003

Sch = Schedule(s)

(md) = misdescribed amendment can be given

Sdiv = Subdivision(s)

    effect

SLI = Select Legislative Instrument

(md not incorp) = misdescribed amendment

SR = Statutory Rules

    cannot be given effect

Sub‑Ch = Sub‑Chapter(s)

mod = modified/modification

SubPt = Subpart(s)

No. = Number(s)

underlining = whole or part not

 

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Act

Number and year

Assent

Commencement

Application, saving and transitional provisions

Independent National Security Legislation Monitor Act 2010

32, 2010

13 Apr 2010

14 Apr 2010 (s 2)

 

Statute Law Revision Act 2011

5, 2011

22 Mar 2011

Sch 6 (items 51–53): 19 Apr 2011 (s 2(1) item 15)

Acts Interpretation Amendment Act 2011

46, 2011

27 June 2011

Sch 2 (items 699–701) and Sch 3 (items 10, 11): 27 Dec 2011 (s 2(1) items 5, 12)

Sch 3 (items 10, 11)

National Security Legislation Amendment Act (No. 1) 2014

108, 2014

2 Oct 2014

Sch 7 (items 111–114, 144, 145): 3 Oct 2014 (s 2(1) items 4, 5)

Sch 7 (items 144, 145)

Counter‑Terrorism Legislation Amendment (Foreign Fighters) Act 2014

116, 2014

3 Nov 2014

Sch 1 (item 131A): 1 Dec 2014 (s 2(1) item 2)

Customs and Other Legislation Amendment (Australian Border Force) Act 2015

41, 2015

20 May 2015

Sch 5 (items 89–91) and Sch 9: 1 July 2015 (s 2(1) items 2, 7)

Sch 9

Australian Citizenship Amendment (Allegiance to Australia) Act 2015

166, 2015

11 Dec 2015

Sch 2 (items 2, 9): 12 Dec 2015 (s 2(1) item 1)

Sch 2 (item 9)

 

Endnote 4—Amendment history

 

Provision affected

How affected

Part 1

 

s 4........................................

am No 5, 2011; No 108, 2014; No 41, 2015; No 166, 2015

Part 2

 

Division 1

 

s 6........................................

am No 116, 2014

Division 2

 

s 20......................................

am No 46, 2011