National security legislation may receive no independent review
8th May 2014
Last week, the Australian Lawyers Alliance provided our submission to the Senate Legal and Constitutional Affairs Committee in their Inquiry into the repeal of the Independent National Security Legislation Monitor.
Our submission can be accessed here.
The Independent National Security Legislation Monitor ('INSLM') was first announced by the Labor government in 2008.
It was intended that that the Monitor, when reporting to Parliament, would initiate a more holistic assessment of national security legislation, and provide an annual report to Parliament.
The introduction of the INSLM was an important step in ensuring increased compliance with human rights obligations and assessing national security legislation as a whole, rather than individual acts in isolation.
In the UK, a similar body called the Independent Reviewer has been in place since the mid 1980s. The UK also has a Human Rights Act, passed in 1998, that provides further protections on human rights.
In Canada, the Charter for Rights and Freedoms entrenches human rights protections into the Canadian Constitution.
By contrast, Australia has few independent protections on human rights. Legislation that is passed and associated with national security or counter-terrorism is likely to cross into uncertain territory that requires rigorous independent assessment.
Since September 11 2001, the Federal parliament has introduced more than 50 counter-terrorism laws.
We are concerned that the removal of the INSLM will have a deleterious impact on human rights in Australia.
The summary of our recommendations to the Committee is reproduced below:
1. Current arrangements are not sufficiently transparent and interconnected to ensure effective holistic review of relevant legislation.
2. If the Independent National Security Legislation Monitor is removed, no independent body will conduct a comprehensive and holistic review and evaluation of relevant legislation.
3. Independent safeguards are required to ensure compliance with international law, especially in light of anti-terror laws, which usually conflict with human rights, and which have often been rolled out at a hasty pace in Australia.
4. The absence of a Charter for Human Rights in Australia already leaves Australians and people living in Australia openly vulnerable to human rights violations. The removal of an effective protective mechanism also removes any capability to monitor any systemic or legislative failure to recognise or enforce rights.
5. A tough on crime approach can be a political exercise that requires review from an independent source.
6. The existence of the Independent National Security Legislation Monitor restores and increases public confidence in government capacity to both protect and enforce their rights. It also promotes effective discussion and community awareness of relevant laws.
7. Annual reporting of the INSLM is an effective way to ensure timely evaluation of relevant laws and ventilate and promote public and parliamentary discussion.
8. International approaches to independent security monitoring have revealed that scrutiny is essential to ensure compliance with human rights obligations.