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Use it before you lose it

Posted By on May 16, 2014 @ 13:09

In early March on The Strategist I wrote [1] (in response to Andrew Zammit [2]) that the government should be required to provide a public response to the recommendations of the Independent National Security Legislation Monitor (INSLM) within six months of receiving them. Barely a peep had been heard from either major party on the INSLM since its establishment in 2010, so imagine my surprise when the government raised it in Parliament only two weeks later. Unfortunately, while the government announced that it was going to address the recommendations, it also introduced a Bill to abolish the INSLM.

The Bill was part of the government’s first ‘Repeal Day’, an effort to ‘reduce bureaucracy and streamline government’ [3] (PDF). Ineffective legislation should be repealed, but that ineffectiveness needs to be established, which it hasn’t in this case. And I don’t mean that the government hasn’t proven its case, but that it hasn’t even made one.

The Bill’s explanatory memorandum [4] (PDF) states that ‘the Government considers that placing the [national security and counter-terrorism] laws in a constant or continuous state of wholesale review has not proven to be the optimal form of oversight’. No detail is provided as to why it hasn’t proven to be the optimal form of oversight. Indeed, no detail can be provided, because that kind of evidence could only be generated by actually using the INSLM, which neither this nor the previous government has done.

The INSLM was designed to provide an ongoing review of the legislation, with an emphasis on provisions that had been applied or considered for application in the preceding financial year. Parliament’s review of Australia’s counter-terrorism and national security legislation has historically been ad-hoc and reactive, focusing on those pieces of legislation containing a sunset clause. The INSLM’s reports were intended to give the government an opportunity to receive and respond to contemporaneous advice across the range of legislation, thus ensuring the laws remained appropriate despite the constant shift in trends and threats.

In practice, the INSLM’s recommendations have been ignored by both major parties, whether in government or opposition. In his most recent report, the INSLM himself noted the lack of government response to any of his recommendations. Perhaps the advice of the INSLM hasn’t been worth taking. But the government can’t know that, because neither it nor its predecessor has tried taking his advice. Repealing the INSLM before using it in the manner in which it was intended is like buying a 4WD, never taking it off-road and then selling it because it has not proven to be off-road capable.

Beyond my exasperation at a nonsensical argument is a deep concern for the potential loss of a key oversight mechanism. The government has said [3] (PDF) that—despite the repeal—comprehensive oversight will remain in the form of the ‘Inspector-General of Intelligence and Security, the Australian Commission for Law Enforcement Integrity, the joint parliamentary committees on law enforcement and intelligence and security, and the parliament itself’. But those mechanisms don’t provide for the same kind of oversight as the INSLM.

The INSLM looks specifically at the operation, effectiveness and implications of the legislation (which the IGIS does not), in its entirety (which the PJCIS does not), and on an ongoing basis (which the parliament does not). In fact, apart from the Australian Commission for Law Enforcement Integrity and its related parliamentary committee, each of the cited mechanisms already existed when the INSLM was established. Obviously it was thought then, correctly, that those mechanisms were insufficiently comprehensive—and no evidence has been presented by the government to suggest that has changed in the past four years.

Finally, the repeal of the INSLM would actually go against the government’s intent to ‘reduce bureaucracy and streamline government’. If the INSLM is abolished, the conduct of this legislative oversight will need to be shifted to, and spread over, a number of other oversight mechanisms, potentially increasing bureaucracy and certainly diluting focus. But if implemented in the way it was intended, the INSLM would provide an ongoing opportunity for this and successive governments to ensure Australia’s counter-terrorism and national security legislation remains efficient and effective.

Kristy Bryden is an analyst at ASPI and editor of The Strategist.

Article printed from The Strategist: https://www.aspistrategist.org.au

URL to article: https://www.aspistrategist.org.au/use-it-before-you-lose-it/

URLs in this post:

[1] I wrote: http://www.aspistrategist.org.au/reader-response-why-counter-terrorism-law-reform-still-matters/

[2] Andrew Zammit: http://www.aspistrategist.org.au/why-counter-terrorism-law-reform-still-matters/

[3] ‘reduce bureaucracy and streamline government’: http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansardr/fc34435e-5f7a-4507-bac8-a38614e5fd1e/0054/hansard_frag.pdf;fileType=application%2Fpdf

[4] explanatory memorandum: http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r5189_ems_7e003bc5-f12b-4b2c-8457-c0584bbd3c51/upload_pdf/392238.pdf;fileType=application%2Fpdf

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