The primary purpose of Australian national security law is to protect the safety of citizens from emerging threats like terrorism, espionage, and cyber-attacks. However, these laws can have a coercive effect on a person’s civil rights and liberties such as the right to privacy, right to freedom of speech and right to liberty without arbitrary or unlawful detention. Thus, consistent appraisal of Australian national security law is required because of its wide-ranging and exceptional character.
Introduction of Independent National Security Law Monitor
The Government created a position called the Independent National Security Law Monitor (INSLM) in response to criticisms that Australia’s national security framework operated too broadly. The INSLM’s statutory function is to independently review the operation, effectiveness and impact of Australia’s national security law and counter-terrorism legislation. On an annual basis, the INSLM reports his recommendations to the Prime Minister and Parliament.
The INSLM is required to consider whether Australia’s security legislation contains appropriate safeguards for protecting individual rights, remains proportionate to terrorist or national security threats, and remains necessary. The INSLM must also consider Australia’s international obligations including human rights, counter-terrorism and international security obligations. In conducting his investigative review, the INSLM can (among other things):
- hold both public and private hearings;
- compel the production of documents and things; and
- have access to all relevant material, regardless of national security classification.
2017 INSLM statutory deadline reviews
For the reporting year of 2016-2017, the INSLM completed statutory deadline reviews with respect to legislation that concerned:
- Stop, Search & Seize power;
- Offences relating to ‘declared areas’; and
- Control orders and Preventative orders.
The self-contained reports for each of these matters reviewed by the INSLM are summarised below.
Stop, search & seize power
The INSLM reviewed stop, search, and seize powers of police officers in relation to terrorist acts and terrorism offences. These powers can only be exercised over ‘Commonwealth places’ where:
- an officer suspects a person might have just committed, might be committing or might be about to commit, a terrorist act; or
- a person is in a prescribed security zone.
In his report, the INSLM says that such powers were necessary in order to respond to current and reasonably foreseeable terrorism threats. The INSLM recommended that these powers continue subject to the addition of new protections which includes introducing reporting requirements to a variety of government authorities such as the Commonwealth Ombudsman, the relevant minister’s office and the INSLM’s office. The proposed reporting obligations would introduce increased accountability because each body can review such powers when exercised.
Declared area offence
The INSLM also reviewed the ‘Declared area offence’. A person is criminally liable if they enter, or remain in, a ‘declared area’ subject to limited exceptions. The Foreign Affairs Minister may declare an area in a foreign country, if they are satisfied that a listed terrorist organisation is engaging in a hostile activity in that area.
The INSLM recommended that the Minster’s declarations should be reviewed by the Parliamentary Joint Committee on Intelligence and Security. Also, the INSLM reports that further amendments should allow an individual to seek permission from the Minister to enter into and remain in a declared area on conditions which the Minister may decide to impose.
Control and preventative detention orders
Control and preventative detention orders were also reviewed by the INSLM. Control orders can impose very onerous obligations and restrictions on a controlee that fall short of ‘detention’. For example, a control order can require a person to remain at a specified premises for a certain amount of time and to wear a tracking device. Essentially, a control order’s purpose is to prevent the support or facilitation of a terrorist act or engagement in a hostile activity in a foreign country.
Preventative detention orders are different from control orders because a person is detained, for up to 48 hours, to prevent a terrorist act that is capable of occurring within the next 14 days or to preserve evidence relating to a terrorist act. Questioning of the detainee is prohibited.
The INSLM concluded that control and preventative detention orders should be continued provided that some amendments were made. Among other things, the INSLM recommended that the law should allow for variations of an interim control order and that no costs orders be made in control order proceedings.
In seeking to ensure that Australia’s national security laws do not breach human rights and are exercised in accordance with law the INSLM is tasked to independently review the security laws. As can be seen from the summary above this also includes making appropriate recommendations to ensure that the correct balance between national security and individual liberties is observed.