What can the Monitor review?

The Monitor can conduct a review:

• Of their own initiative if the review is about one or more of the laws described in the INSLM Act as ‘counter-terrorism and national security legislation’ or any other Commonwealth law to the extent that it relates to ‘counter-terrorism and national security legislation’.
• About any matter relating to counter-terrorism or national security if requested to do so by the Attorney-General or the Prime Minister.
• Of matters referred by the Parliamentary Joint Committee on Intelligence and Security under that Committee’s functions
• If the INSLM Act requires a particular review be conducted.

Self-initiated reviews

The Monitor can conduct a self-initiated review of the following laws or parts of these laws:

1. Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 which relates to the cessation of citizenship;
2. Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 which relates to the Australian Security Intelligence Organisation’s compulsory questioning powers;
3. Part 4 of the Charter of the United Nations Act 1945 which concerns Security Council decisions that relate to terrorism sanctions and dealings with assets;
4. The Crimes Act 1914 to the extent that it relates to:
   • powers in relation to terrorist acts and terrorism offences (Division 3A of Part IAA);
   • certain cases where bail is not to be granted and certain offences where the court must fix a non-parole period (sections 15AA and 19AG);
   • investigations of Commonwealth terrorism offences (Part IC);
5. Chapter 5 of the Criminal Code which relates to treason, sabotage, espionage, foreign interference, terrorism, secrecy offences and related matters;
6. Part IIIAAA of the Defence Act 1903 which relates to calling out the Defence Force for the purpose of protecting Commonwealth interests, States and self-governing Territories;
7. The National Security Information (Criminal and Civil Proceedings) Act 2004 which provides a framework for how national security information is disclosed and protected in criminal and civil proceedings;
8. Temporary exclusion orders which can be used to prevent a person entering Australia in accordance with the Counter Terrorism (Temporary Exclusion Orders) Act 2019
9. Any other law of the Commonwealth to the extent that it relates to Australia’s counter terrorism and national security.

Referred reviews

Legislation may be referred to the Monitor for review by the Prime Minister, Attorney-General or the Parliamentary Joint Committee on Intelligence and Security (PJCIS). Former Monitor the Hon. Roger Gyles AO QC, for example, completed a review of the impact on journalists of section 35P of the ASIO Act following a referral from the Prime Minister. Another former Monitor, Dr James Renwick CSC SC, conducted a review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 following a referral from the PJCIS. On some occasions the Monitor has identified an area of legislation that could benefit from review but does not have the authority to start it themselves (as an ‘own initiative’ review) so they ask the Attorney-General or Prime Minister to refer it. This type of referral resulted in the review of the prosecution and sentencing of children for Commonwealth terrorism offences.

Statutory reviews

The INSLM Act requires that the Monitor conduct reviews of certain laws at particular times. At the moment the INSLM Act requires the following reviews be conducted as soon as practicable after the third anniversary of the day the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 received Royal Assent:

• Espionage, foreign interference and sabotage offences under Part 5.2 and Division 82 of the Criminal Code
• Secrecy offences under part 5.6 of the Criminal Code

The Monitor is also required to review the operation, effectiveness and implications of the amendments made by Schedules 1, 2 and 3 to the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (with the review to commence before September 2024), and the citizenship cessation provisions amended by the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 (to commence as soon as practicable after December 2026).