Highlights from the INSLM’s latest annual report

The Independent National Security Legislation Monitor (INSLM) is the most important national security oversight body in Australia. Its role is to review the appropriateness and effectiveness of Australia’s national security legislation, and it has broad mandate for going about this.

Unlike the Parliamentary Joint Committee on Intelligence and Security (PJCIS), the INSLM can look deeply into how the police, security and intelligence services actually conduct their operations. Unlike the Inspector-General of Intelligence and Security (IGIS), the INSLM can propose changes to the law rather than just examining whether the law was followed. Like a Royal Commission, the INSLM has the legal power access all information relevant to its investigations and can compel government officials to answer questions if needed. The main limit on its role, and an appropriate one, is that the INSLM can only make recommendations. Unlike a judicial authority, the INSLM cannot make rulings.

Despite its importance, the INSLM’s annual reports tend not to receive any media coverage, unlike ASIO’s annual reports (or the saturation coverage received by ASIO’s annual threat assessments).

This is unfortunate, because the INSLM’s annual reports are not dry documents full of legal or financial minutiae. Instead, they routinely provide new information important for ensuring that Australia’s national security is protected consistently with liberal democratic principles.

For that reason, this post shares highlights from the INSLM’s latest annual report, the Independent National Security Legislation Monitor Annual Report 2021-2022, released on 14 December 2022. The report provided three important updates on:

  • the almost-completed review into the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (the HRTO Act);
  • the upcoming review into the National Security Information (Criminal and Civil Proceedings) Act 2004 (the NSI Act); and
  • a future review into the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (the EFI Act).

High Risk Terrorism Offenders Act review

The Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 (the HRTO Act), allows for the federal government to apply for continuing detention orders (CDOs) and extended supervision orders (ESOs) against convicted terrorists who have finished serving their sentences. The INSLM has been reviewing the Act for some years and the submissions and public hearing transcripts are available online.

The Annual Report 2021-2022 announced that the INSLM was continuing this review and explained some of the delays. In addition to the COVID-19 pandemic, the change of government complicated this review. The incoming Labor government included ministers, particularly the new Attorney-General mark Dreyfus, who had been highly critical of the Coalition government’s use of the HRTO Act. So after the 2022 election, the INSLM announced that it would allow government agencies to provide new submissions before the next public hearing, anticipating that the new government may have a different position on the HRTO Act.

However, due to the changes to the Attorney-General’s and Home Affairs portfolios (transferring law enforcement from the latter to the former), the next public hearing was postponed even longer. The INSLM website announced that “unfortunately due to the Machinery of Government (MoG) changes following the election, the government agencies are not in a position to provide the INSLM with supplementary submissions ahead of this hearing taking place.”

The hearings resumed on 21 November 2022, and for those who follow this area they were extremely interesting. The INSLM asked the Attorney-General’s Department and Home Affairs officials difficult questions about due process, research integrity, and the breadth of the legislation. The INSLM raised the question of proportionality, noting that HRTO restrictions could not only apply to people perceived to pose a risk of perpetrating a terrorist attack after serving their sentence, but people perceived to pose a risk of carrying out almost any terrorism offence, including the less serious offences like advocacy, associating and membership. The INSLM also questioned whether CDOs were necessary at all, pointing out that:

The United Kingdom, for instance, has experienced many acts of violent extremism that have resulted in spectacular and coordinated violent events. Many lone wolf attacks, hundreds of deaths, and countless serious injuries and damage to property. Yet the United Kingdom does not have anything like a continuing detention order and I’ll be interested to hear people’s views as to whether that is relevant to the task before me.

I also note that in the recommendations of the New Zealand Royal Commission into the terrorist attack in Christchurch on 15 March 2019, there were no recommendations in that royal Commission for the institution of a post-sentence detention regime for terrorist offenders. And, as I understand it, there is no equivalent to continuing detention order in Canada. So I will be interested in people’s views as to whether those matters are relevant to the task before me.

Most of the non-government submissions raised concerns about the human rights implications of CDOs, which can keep convicted terrorists detained long after their prison sentences have expired. I’m personally unconvinced of the need for CDOs, for similar reasons to those outlined in Rodger Shanahan’s submission. It will be interesting to see where the INSLM lands on this.

National Security Information Act review

In June 2022, the INSLM completed a report on “the operation of Part 3, Division 1 of the National Security Information (Criminal and Civil Proceedings) Act 2004” (the NSI Act). The NSI Act imposes a greater level of secrecy over court proceedings than would usually be the case, and can restrict information from the person being prosecuted. The INSLM’s review covered one specific trial, the “Alan Johns matter”, where a former Australia Secret Intelligence Service officer was prosecuted in “unprecedented secrecy”. However, the INSLM has since begun a review of the entire NSI Act.

One comment in the INSLM’s annual report, although it discussed a case that did not specifically involve the NSI Act, foreshadowed the direction the review could take. This was the case of SDCV v Director-General of Security & Anor where the Security Appeals Division of the Administrative Appeals Tribunal upheld ASIO’s cancellation of a man’s visa. The visa cancellation was upheld based on information the man could not see, which is not unusual, but in this case the man had lived in Australia for many years. This INSLM had this to say:

I expect that it would trouble many that a decision to deport a person from Australia can be made based on evidence of which the person and their legal advisers are unaware and where that evidence was not even tested on their behalf by an independent counsel. Troubling or not, these are the kinds of difficult issues that will arise in the review of the NSI Act.

The reference to the prospect of evidence being “tested on their behalf by an independent counsel” is worth noting. Whatever the INSLM review concludes, it is unlikely to call for complete transparency. To stick with this ASIO security assessment example (even though it doesn’t involve the NSI Act), it is impossible to imagine a scenario where the government would require ASIO to share all the intelligence on which it based an adverse security assessment with the very person who was adversely assessed.

However, there is a long history to the idea of nonetheless having some independent entity, who can see the intelligence, assigned to represent the person’s interests. This is evident in the use of “special advocates” in the UK, and has been discussed in relation to Australia’s counter-terrorism and national security laws before. I would not be surprised if the review revisits these ideas and ends up recommending something similar.

Espionage and Foreign Interference Act review

Finally, the annual report also mentioned that the INSLM will review the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (the EFI Act). The report stated that the “review of the EFI Act will be formally announced in due course, though work on it has commenced and continues.”

A review like this happened to be on my “national security law wish-list” for the new government. Espionage and foreign interference are real threats, and Russia’s role in the 2016 US election was just a particularly blatant example. However, the concept of foreign interference is inherently tricky.

Foreign interference was added to ASIO’s legislation as a security concern in 1986, but only became a criminal offence with the passing of the EFI Act in 2018. Foreign interference is defined in slightly varying ways on the Home Affairs website, the ASIO website, and the Commonwealth Criminal Code. It is a broad concept that covers activities such as disinformation, mal-information (like hack-and-leak operations), agents of influence, front organisations, and more.

The dangers of foreign interference are most apparent when it involves transnational repression (authoritarian regimes operating across borders to coerce, blackmail, harass, intimidate, threaten, assault, kidnap, torture or murder dissidents). This is the most visceral form of foreign interference, far removed from the grey zone where there can be reasonable debate about what distinguishes legitimate influence from illegitimate interference (something Justice Hope had to wrestle with in his second Royal Commission into Australia’s intelligence agencies).

Yet until relatively recently, transnational repression (and the crossover with terrorism) did not feature heavily in Australia political discussions over foreign interference, despite events like the Russia’s poisoning of Skripal in the UK, Saudi Arabia’s murder of Jamal Khashoggi or Iran’s assassination and kidnapping plots in multiple countries.

The proposed review of the EFI Act is worthwhile. While the threat of espionage and foreign interference is real, like the threat of terrorism, some of the legislation appears to have the same problems of vagueness, complexity and press freedom implications as some counter-terrorism legislation has had.

Moreover, it is unclear how much this legislation has actually helped Australia to counter transnational repression, in my view the most serious type of foreign interference. According to Malcolm Turnbull’s recent testimony at the Parliamentary Joint Committee on Intelligence and Security, a closely related piece of legislation (the Foreign Influence Transparency Scheme Act 2018, passed by his government) has demonstrated similar problems by placing a regulatory burden on all sorts of domestic institutions without actually undermining influence operations by authoritarian regimes.

It is better to review the legislation as soon as possible than wait many years and risk Haneef-style scandals or discover only too late that the legislation might not be fit for addressing the most serious threats. So the annual report’s announcement the INSLM will be reviewing the 2018 EFI Act is exceptionally good news.

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