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Independent National Security Legislation Monitor Annual Report 2021-2022

  • Report
Publication date
Prepared by
Mr Grant Donaldson SC

This annual report relates to the period between 1 July 2021 and 30 June 2022.

INSLM Annual Report 2021-22 cover
  1. 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 2022. I have served as INSLM since 26 November 2020.
  2. 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.
  3. On 2 March 2021, I announced a review into the operation of Part 3 Division 1 (which includes section 22) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) as it applies in the ‘Alan Johns’ matter (Alan Johns matter).
  4. On 17 June 2022, my report of that review was delivered to the Attorney-General and on 28 July 2022, the report was tabled in Parliament. On the same day, the Attorney-General referred to me the whole of the NSI Act for review. This review must be completed by 31 October 2023.
  5. While this review was announced just outside the reporting period, and fuller details will be set out in next year’s annual report, I understand that the Government’s request for me to review the entire NSI Act was, in large part, prompted by recent matters in which the NSI Act had been invoked, and my report into section 22 of the NSI Act.
  6. I welcome a review of the whole of the NSI Act. Prior to the Attorney General’s reference, I had foreshadowed undertaking such a review on my own motion but indicated that such a review would best be undertaken while the central provisions of the NSI Act were not before courts and ‘the subject of intense discord.’1 Following the plea of guilty and subsequent conviction of Witness K on 18 June 2021, the Attorney-General’s decision to discontinue the proceedings against Bernard Collaery on 7 July 2022 and the end of hearings in relation to the Ben Roberts-Smith matters, it is now opportune to scrutinise the whole of the NSI Act. There is a great deal of material that my staff and I will have to consider for this review and although work had been undertaken even prior to the Attorney General’s reference, much of the relevant material was not then available to me.
  7. As with every INSLM review, the review of the NSI Act will require a detailed examination of the whole of the Act, its legislative history and context, its practical contemporary operation and its compatibility with Australia’s national security objectives.
  8. 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)/Post-Sentence Order (PSO) scheme’. This review must be completed as soon as possible after 7 December 2021. AsI outline below, although there have been a number of frustrating, though unavoidable delays, this report is now well-advanced.
  9. In the middle months of 2021, various State governments announced travel restrictions due to outbreaks of COVID-19. I reside in Western Australia and the continued postponement of border openings impacted my work as INSLM. It was announced on 13 December 2021 that Western Australia would fully open its borders to people vaccinated against COVID on 5 February 2022. That proposed re-opening was subsequently delayed until 3 March 2022.
  10. INSLM reviews require public engagement, conferral with people and consideration of often very sensitive material. Much conferral can only be done in person due to the nature of these issues.
  11. In my time as INSLM, I have followed the practice of accessing and perusing sensitive information in secure locations, in particular in my office in Canberra. Due largely to COVID-19 related travel restrictions I commenced dealing with some domestic and international stakeholders remotely, through secure channels and accessed some sensitive material in Perth.
  12. Members of my office in Canberra continued to engage with stakeholders (including regular meetings with government officers), review sensitive material and support me remotely while I progressed these reviews as much as practicable.
  13. My report into the Alan Johns matter could not be completed until several private hearings and confidential meetings took place and highly sensitive material accessed. These meetings were conducted face-to-face, across several locations in Australia. Although many were conducted prior to COVID-19 related travel restrictions others were not and could not be concluded until these restrictions were lifted in March 2022.
  14. My review into Division 105A of the Criminal Code and related provisions has required significant in-person engagement with State Governments and operational agencies, including visits to various facilities. Again, many of these investigations and conferrals could not occur until interstate travel was possible.
  15. The INSLM role cannot be performed alone. Throughout the reporting period, I have received invaluable support from the 3 full-time staff of the INSLM office; a Principal Adviser (Mark Mooney), an Executive Officer and an Adviser. I have also been assisted in the HRTO review by counsel and solicitors assisting.
  16. The total budget for 2021-22 was $1.107m.
  17. As in previous years, AGD has also made available office space and corporate support such as IT, payroll and security. I am grateful to the Secretary, Katherine Jones PSM, for her assistance.

1Commonwealth of Australia, Independent National Security Legislation Monitor (INSLM) Annual Report 2019-2020 p. 18.

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