Statutory Functions

INSLM reviews come from one or more of five sources.

First, and most usually, is an ‘own motion review’ when the INSLM reviews one or more of the laws defined in s 4 of the INSLM Act as  ‘counter-terrorism and national security legislation’ together with related laws: see s 6(1)(a) and (b).

Second, the Prime Minister (and third, since 2018, the Attorney-General) may, either independently or at the request of the INSLM, refer for review ‘a matter relating to national security or counter terrorism’ (s 7).  This allows topics and laws beyond the own motion power to be reviewed.  This has frequently occurred.  The reference concerning the trial and punishment of children is an example of such a review. The review conducted by the 2nd  INSLM on the impact on journalists of section 35P of the ASIO Act is an example of a matter referred by a Prime Minister of his own motion.  The Prime Minister alone may prioritise INSLM reviews.

Fourth, the INSLM Act itself may require a particular review to take place by a particular time, sometimes because the law will expire unless reviewed.  The three reports produced in 2017 (including control orders) are examples of such reviews.  Future requirements include reviews of the law relating to sabotage, espionage and secrecy of information, and of continuing detention orders relating to high risk terrorist offenders: see s 6.

Fifth, the PJCIS may refer a matter to the INSLM, it becomes aware of in the course of performing its functions under s 29(1) of the Intelligence Services Act.[1]  That has not yet occurred.

The own motion power

A critical aspect of the INSLM’s role is the ability, independently, to decide what matters to review, subject only to the Prime Minister being able to prioritise one review over another.  The INSLM is not otherwise subject to direction, and in particular is completely independent as to the conclusions of any review.  It is important to note that ‘own motion reviews’ may arise incidentally during, for example, a Prime Ministerial review or a ‘sunsetting’ review required elsewhere in the INSLM Act. This can occur because under the INSLM Act, the INSLM may at any time conduct an own motion review of Australia’s counter-terrorism and national security legislation’ and other Commonwealth laws relating to that legislation: s 6(1)(a)(i) and (iii) of the INSLM Act.  In construing s 6(1) part of the statutory context is provided by s 10(1) of the INSLM Act which requires that the INSLM ‘must have regard to:

 (a)  the functions of agencies that have functions relating to, or are involved in the implementation of, that legislation; and

 (b)  functions relating to that legislation that are conferred on a person who holds any office or appointment under a law of the Commonwealth or of a State or Territory.

ASIO is an example of an agency referred to in s 6(1)(a). Judges, Commonwealth, State or Territory who do, or could, following legislative change,  try terrorism cases fall within s 10(i)(b), as does the Commonwealth Attorney-General in relation to parole in terrorism matters.

Counter-Terrorism and national security legislation

The following legislation is reviewable of the INSLM’s own motion as part of the INSLM’s functions:

  1. Sections 33AA,[2] 35[3] and 35A[4] of the Australian Citizenship Act 2007 and any other provision of that Act as far as it relates to those sections (loss of citizenship because of, for example, terrorist activities);
  2. Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 and any other provision of that Act as far as it relates to that Division (questioning warrants and questioning/detention warrants);
  3. Part 4 of the Charter of the United Nations Act 1945 and any other provision of that Act as far as it relates to that Part (Security Council decisions that relate to terrorism and dealings with assets, which, for example, creates offences of dealing with freezable assets and giving an asset to a proscribed person or entity);
  4. the following provisions of the Crimes Act 1914
  • Division 3A of Part IAA and any other provision of that Act as far as it relates to that Division;
  • sections 15AA (bail) and 19AG (requirement that terrorism offenders serve at least 75% of their head sentence before being eligible for parole) and any other provision of that Act as far as it relates to those sections;
  • Part IC, to the extent that the provisions of that Part relate to the investigation of terrorism offences (within the meaning of that Act), and any other provision of that Act as far as it relates to that Part;
  1. Chapter 5 of the Criminal Code and any other provision of that Act as far as it relates to that Chapter[5];
  2. Part IIIAAA of the Defence Act 1903 [6] and any other provision of that Act as far as it relates to that Part;
  3. The National Security Information (Criminal and Civil Proceedings) Act 2004.
  4. Any other law of the Commonwealth to the extent that it relates to Australia’s counter terrorism and national security legislation (for example other laws which facilitate terrorism investigations).

Special Reviews required by the INSLM Act itself

Sections 6(1B) and (1C) are of current relevance.  They provide

          (1B)  The Independent National Security Legislation Monitor must, as soon as practicable after the third anniversary of the day the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 receives the Royal Assent, begin a review under paragraph (1)(a) of the following provisions of Chapter 5 of the Criminal Code:

                     (a)  Division 82 (sabotage);

                     (b)  Part 5.2 (espionage and related offences);

                     (c)  Part 5.6 (secrecy of information).

          (1C)  The Independent National Security Legislation Monitor must complete the review under subparagraph (1)(a)(ia) [Division 105A of the Criminal Code which concerns continuing detention orders, and any other provision of that Code as far as it relates to that Division;] before the end of 5 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent.

Scope of Reviews

Under the INSLM Act, the INSLM must give particular emphasis to provisions of the above legislation that have been applied, considered or purportedly applied during the last financial year or the immediately preceding financial year.

The INSLM must also have regard to Australia’s obligations under international agreements, including human rights obligations, counter-terrorism obligations, international security obligations and arrangements agreed from time to time between the Commonwealth, the States and the Territories to ensure a national approach to countering terrorism.