Independent National Security Legislation Monitor Annual Report 2020-2021
Publication date
Prepared by
Mr Grant Donaldson SC
This annual report relates to the period between 1 July 2020 and 30 June 2021.
Overview
- Section 29 of the of the Independent National Security Legislation Monitor Act 2010 (Cth) (INSLM Act) requires that I report on the performance of the Independent National Security Legislation Monitor’s (INSLM) functions, set out in s.6(1)(a) and (b), for the year ending 30 June 2021. During this period, I served as Acting INSLM until my permanent appointment on 26 November 2020.
- Sections 6(1)(a) and (b) (broadly) require the INSLM to review the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation, and other laws of the Commonwealth that relate to them. In doing this the INSLM is to consider whether such laws contain appropriate safeguards for protecting the rights of individuals, remain proportionate to any threat of terrorism or threat to national security, and remain necessary.
- I was announced as Acting INSLM on 8 July 2020 and commenced my substantive appointment on 26 November 2020.
- In the 2019-20 INSLM Annual Report (provided to the then Attorney-General on 21 October 2020) I outlined my work program and detailed my approach to the NSI review initiated by my predecessor. I indicated there that as soon as I was authorised to do so I would ascertain whether it was feasible to discretely review the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) as it relates specifically to the ‘Alan Johns’ matter.
- On 2 March 2021, I announced a review into the operation of Part 3 Division 1 which includes s.22 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) as emerged in the ‘Alan Johns’ matter.
- In June 2021, I formally announced the review into Division 105A of the Criminal Code Act 1995 (Cth) (Criminal Code) and any other provision of the Code as far as it relates to that Division. The provisions of Division 105A are customarily described as embodying the ‘High Risk Terrorist Offenders (HRTO)/Continuing Detention Orders (CDO) scheme’. Following recent INSLM Annual Report 2020-2021 amendments to section 6(1C) of the INSLM Act, this review must be completed as soon as possible after 7 December 2021.
- In the middle months of 2021 various State governments announced travel restrictions due to further outbreaks of COVID. I reside in Western Australia and since mid-year, it has not been practicable, even when possible, for me to travel outside of Western Australia. These travel restrictions have impacted my work as INSLM during the reporting period.
- INSLM reviews require public engagement, conferral with people and consideration of sensitive material. Much conferral can only be done in person due to the sensitivity of issues.
- In my time as INSLM I have followed the practice of accessing and perusing sensitive information in secure locations, including my office, in Canberra. In doing this I have, largely, followed the practice of my predecessors. Because of this practice, which I intend to continue, certain procedures had to be adopted to enable me to hold secure videoconferences from Western Australia with domestic and international stakeholders or to view and store some sensitive material in Perth. As I write, it seems likely that travel restrictions, that have impeded my work, will be lifted early in 2022.
- None-the-less, my inability to travel, to meet face to face with people and to access various information has had an effect on my reviews into the operation of Part 3 Division 1 of the NSI Act and Division 105A of the Criminal Code. My Office has therefore continued to engage remotely and in person with stakeholders (including regular meetings with government officers), review sensitive material and support me remotely while I progressed these reviews as much as practicable.
- Throughout the reporting period, I have received valuable support from the full time staff of the INSLM Office; a Principal Adviser (Mark Mooney), an Executive Officer and an Adviser. The functions of the INSLM could not be performed without their efforts.
- The total budget for 2020-21 was $1.141m.
- As in previous years, the Attorney General’s Department (AGD) made available office space and support such as IT, payroll and security. I am grateful to the former Acting Secretary, Iain Anderson, for this and AGD’s ongoing assistance. I look forward to continuing this relationship with the Secretary, Katherine Jones.