Independent National Security Legislation Monitor Act 2010

Independent National Security Legislation Monitor means the person appointed by the Governor‑General by written instrument under section 11, on a part‑time or full‑time basis, for a term not exceeding three years with eligibility for reappointment once only (section 12). The appointment requires prior consultation by the Prime Minister with the Leader of the Opposition (section 11(2)) and the person must have suitable qualifications, training or experience (section 11(3)). Counter‑terrorism and national security legislation is defined broadly in section 4A. Subsection 4A(1) gives the general meaning: laws of the Commonwealth that relate to counter‑terrorism or national security, or laws of the Commonwealth to the extent that they relate to counter‑terrorism or national security. Subsection 4A(2) gives a non‑exhaustive list that includes the Intelligence Services Act 2001, the Australian Security Intelligence Organisation Act 1979, the Office of National Intelligence Act 2018, telecommunications and surveillance legislation to the extent it relates to intelligence community powers, citizenship cessation provisions (Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007), Part 4 of the Charter of the United Nations Act 1945 (targeted financial sanctions), relevant provisions of the Crimes Act 1914 (including Division 3A of Part IAA, sections 15AA and 19AG, and Part IC for terrorism investigations), Chapter 5 of the Criminal Code (including terrorism, sabotage, espionage and foreign interference), Part IIIAAA of the Defence Act 1903 (call‑out powers), the National Security Information (Criminal and Civil Proceedings) Act 2004, Part 2 of the Counter‑Terrorism (Temporary Exclusion Orders) Act 2019, and any law prescribed by the regulations. Crucially, subsection 4A(3) states that subsection (2) does not limit subsection (1), so the list is illustrative. Operationally sensitive information is defined in section 4 to mean information about information sources or operational activities or methods available to a law enforcement or security agency; information about particular operations (past, present or proposed) of such an agency or proceedings relating to them; or information provided by a foreign government or its agency without consent to public disclosure. Law enforcement or security agency is defined in section 4 to mean a list that includes the Australian Federal Police, the Australian Crime Commission, the Immigration and Border Protection Department, the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Australian Signals Directorate, the Australian Defence Force, certain defence intelligence organisations, the Office of National Intelligence, State or Territory police forces, and any other agency prescribed by the regulations. Head is defined separately in section 4 for each listed agency; for example, in relation to the Australian Federal Police it is the Commissioner of Police, and in relation to the Australian Security Intelligence Organisation it is the Director‑General of Security. Secrecy provision means a provision of any Commonwealth, State or Territory law that prohibits the communication, divulging or publication of information, the production of a document or the production of a thing, or anything done under such a provision to prohibit those acts. Responsible Minister in relation to a review means the Minister (including a State or Territory Minister) responsible for the agency concerned.

The Act directly affects the Independent National Security Legislation Monitor as the office‑holder performing the statutory functions, and the Governor‑General who appoints the Monitor by written instrument under section 11. The Prime Minister and the Attorney‑General have specific powers: they may refer matters relating to counter‑terrorism or national security to the Monitor under section 7, and the Prime Minister may direct the order in which the Monitor deals with references (section 7(3)). The Leader of the Opposition in the House of Representatives must be consulted before a recommendation is made to the Governor‑General for appointment (section 11(2)). The Parliamentary Joint Committee on Intelligence and Security may refer matters to the Monitor under section 7A; the Committee becomes aware of matters in the course of performing its functions under subsection 29(1) of the Intelligence Services Act 2001. The Monitor’s work impacts law enforcement and security agencies listed in the definition - the AFP, ASIO, ASIS, the Australian Signals Directorate, the Australian Crime Commission, the Immigration and Border Protection Department, the Australian Defence Force, and others. These agencies may be required to cooperate with reviews, provide information, make staff available under section 33, or produce documents. The heads of those agencies are defined in section 4 and are responsible for making arrangements with the Monitor for the protection of classified documents under section 28. Individuals summoned to appear at hearings under section 22 are directly affected by the compulsory information‑gathering powers; they may be compelled to give evidence or produce documents on pain of criminal penalty (section 25). The Commonwealth pays allowances for travel and other expenses to witnesses (section 22(4)). Staff and contractors assisting the Monitor under sections 33 and 34 (APS employees, intelligence agency employees, Defence Force members, and independent contractors) are subject to the Monitor’s directions and may receive immunity from legal action when acting in good faith (section 31). The Parliament receives annual reports, special reports and statutory review reports (sections 29, 29A, 29B, 29C and 30). The Attorney‑General is the primary recipient of reports and is responsible for tabling them. The Remuneration Tribunal determines the Monitor’s pay and leave (sections 13 and 14). Finally, State and Territory police forces are included in the definition of law enforcement or security agency, and the Monitor must have regard to Commonwealth‑State‑Territory arrangements under section 8(b).

The Monitor’s duties are set out in section 6. The Monitor must review, on his or her own initiative, the operation, effectiveness and implications of Australia’s counter‑terrorism and national security legislation and related Commonwealth laws (paragraph 6(1)(a)). The Monitor must consider whether that legislation contains appropriate safeguards for protecting individual rights, remains proportionate to any terrorist or national security threat, and remains necessary (paragraph 6(1)(b)). The Monitor must assess whether such legislation is being used for matters unrelated to terrorism and national security (paragraph 6(1)(d)). The Monitor must report on references made under section 7 (paragraph 6(1)(c)) and report on matters relating to the performance of his or her functions (paragraph 6(1)(f)). Additionally, the Act imposes specific mandatory review obligations: a review of sabotage and espionage offences in Chapter 5 of the Criminal Code (section 6(1B)); a review of amendments made by the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (section 6(1E)); and a review of citizenship cessation provisions as amended in 2023 (section 6(1F)). Under section 8, the Monitor must have regard to Australia’s international obligations (human rights, counter‑terrorism and international security obligations) and to Commonwealth‑State‑Territory arrangements for a national approach to countering terrorism. Under section 9, when performing functions in a financial year, the Monitor must give particular emphasis to provisions that have been applied, considered or purportedly applied by agency employees in that or the immediately preceding financial year (though this does not apply to special reports or statutory review reports under sections 29A and 29B). Under section 10, the Monitor must have regard to the functions of implementing agencies and to functions conferred on office‑holders under other laws; the Monitor may consult with the Ombudsman, the Inspector‑General of Intelligence and Security, the Human Rights Commissioner, the Privacy Commissioner, the head of any agency, or other relevant persons. Under section 16, the Monitor must disclose to the Attorney‑General all interests that conflict or could conflict with proper performance of functions. The Monitor’s rights include the power to do all things necessary or convenient for performing functions (section 6(3)). The Monitor has complete discretion and is not subject to direction from anyone, subject to the Act and any other law (section 17B). The Monitor may hold hearings (section 21), summon persons to attend, give evidence or produce documents (section 22), require evidence on oath or affirmation (section 23), and request information or documents by written notice (section 24). The Monitor may retain documents or things as necessary for performing functions, subject to an obligation to allow reasonable access to those otherwise entitled (section 27). The Monitor may prepare special reports on his or her own initiative after giving notice to the Attorney‑General and Prime Minister (section 29A). Under section 30(2), the Monitor may give interim reports on a reference. The Monitor may also give a copy of reports to the other Minister who could refer matters (section 30(3A)). Rights of other persons: a person summoned is entitled to allowances for travel and expenses (section 22(4)); a person has a reasonable excuse defence to offences under section 25, including self‑incrimination (section 25(5)‑(6)); a person who complies with a notice is not liable under any secrecy provision (section 26); a person whose documents are retained is entitled to reasonable access (section 27(2)); and the Monitor may consult the person in determining whether a report contains sensitive information (section 29(4)).

The Act creates criminal offences in section 25 for non‑compliance with the Monitor’s information‑gathering powers. Four distinct offences are set out. First, failure to attend a hearing when served with a summons under section 22 is an offence punishable by imprisonment for 6 months or 30 penalty units, or both (subsection 25(1)). Second, failure to be sworn or make an affirmation at a hearing, or failure to answer a question that the Monitor requires the person to answer, is an offence with the same penalty (subsection 25(2)). Third, failure to produce a document or thing when required by a summons under section 22 or a request under section 24 is an offence (subsection 25(3)). Fourth, failure to provide information when required by a notice under section 24 is an offence (subsection 25(4)). All four offences carry identical maximum penalties: imprisonment for 6 months, 30 penalty units, or both. The Act provides a defence of reasonable excuse; the defendant bears an evidential burden in relation to that excuse (subsection 25(5) and note). Critically, subsection 25(6) expressly provides that it is a reasonable excuse for a person to fail to answer a question, produce a document or thing, or provide information on the ground that doing so might tend to incriminate the person or expose the person to a penalty. This preserves the privilege against self‑incrimination. There is no corresponding excuse for failure to attend a hearing or to take an oath or affirmation; the reasonable excuse defence may apply to those too by general principles, but subsection 25(6) is limited to the specific failures listed. Beyond criminal penalties, the Act also enforces compliance through the obligation to fill vacancies: section 11A requires that as soon as practicable after the office becomes vacant, a Monitor or acting Monitor must be appointed. The Monitor’s own conduct is enforced through termination provisions in section 19. The Governor‑General may terminate the Monitor’s appointment for misbehaviour or physical or mental incapacity (subsection 19(1)). The Governor‑General must terminate the appointment if the Monitor becomes bankrupt, applies for relief from debts, compounds with creditors, or assigns remuneration for creditors’ benefit (subsection 19(2)(a)); if the Monitor fails without reasonable excuse to disclose interests under section 16 (subsection 19(2)(b)); if a full‑time Monitor engages in outside paid employment without the Attorney‑General’s written consent (subsection 19(2)(ba)); if a part‑time Monitor engages in conflicting paid employment (subsection 19(2)(c)); or if the Monitor is absent without leave for certain periods: 14 consecutive days or 28 days in 12 months for a full‑time Monitor (subsection 19(2)(ca)), and 7 consecutive days or 14 days in 12 months for a part‑time Monitor (subsection 19(2)(d)). The Act also provides for an acting Monitor to be appointed for up to 12 months during vacancy or incapacity (section 20). Finally, the Act ensures that the Monitor and those assisting enjoy immunity from legal action when acting in good faith (section 31). No action, suit or proceeding may be brought against the Monitor (or former Monitor) in relation to anything done or omitted in good faith in the performance or purported performance of functions or exercise of powers. Similarly, persons assisting under sections 33 or 34 are immune for good faith acts or omissions in assisting. This immunity protects the Monitor and staff from civil liability, but does not affect criminal liability for bad faith conduct.

The Act interacts with a broad range of Commonwealth and State laws. Most directly, section 4A defines counter‑terrorism and national security legislation by reference to an extensive list of specific enactments: the Intelligence Services Act 2001, the Australian Security Intelligence Organisation Act 1979, the Office of National Intelligence Act 2018, the Telecommunications Act 1997, the Telecommunications (Interception and Access) Act 1979, the Surveillance Devices Act 2004 (to the extent they relate to intelligence community powers), the Australian Citizenship Act 2007 (citizenship cessation), the Charter of the United Nations Act 1945 (Part 4), various provisions of the Crimes Act 1914, Chapter 5 of the Criminal Code, Part IIIAAA of the Defence Act 1903, the National Security Information (Criminal and Civil Proceedings) Act 2004, and Part 2 of the Counter‑Terrorism (Temporary Exclusion Orders) Act 2019. These are the laws the Monitor reviews, so the Act is the supervision mechanism for those statutes. The Act overrides secrecy provisions in any Commonwealth, State or Territory law: section 26 provides that a person served with a notice under section 22 or 24 does not commit an offence and is not liable to any penalty under a secrecy provision because the person answers a question, provides information, or produces a document or thing required by the notice. This is a significant override of other statutory prohibitions on disclosure. The Act also makes the Monitor’s hearings judicial proceedings for the purposes of Part III of the Crimes Act 1914 (note following section 23). Part III of the Crimes Act creates offences including perjury, fabricating evidence and obstruction of justice; applying that Part to the Monitor’s hearings means those offences can be prosecuted in relation to false evidence given to the Monitor. The Act is subject to the Public Governance, Performance and Accountability Act 2013 for finance law purposes: section 17A provides that the Monitor is an official of the Department for the purposes of that Act. The Remuneration Tribunal Act 1973 applies to the determination of the Monitor’s pay (section 13(3)). The Acts Interpretation Act 1901 applies to acting appointments under section 20 (note cross‑reference to section 33A), and section 29(8) displaces section 34C of the Acts Interpretation Act in relation to annual reports. The Act also contemplates interaction with State and Territory laws through the definition of law enforcement or security agency (which includes State and Territory police forces), the definition of secrecy provision (which includes State and Territory laws), and the requirement under section 8(b) to have regard to Commonwealth‑State‑Territory arrangements. The Monitor may consult the Ombudsman, the Inspector‑General of Intelligence and Security, the Human Rights Commissioner, and the Privacy Commissioner under section 10, indicating coordination with those oversight bodies. Finally, the regulations power in section 32 allows the Governor‑General to prescribe matters necessary or convenient for giving effect to the Act, including adding agencies to the definition of law enforcement or security agency and adding laws to the list in section 4A(2)(m).

The Act as provided does not set out its own amendment history in a table. However, the text of the Act itself reveals several substantive amendments that have been made over time. The Act originally had the short title commenced on the day after Royal Assent (section 2). Through later amending Acts, new sections and subsections were inserted. Section 6 contains mandatory review obligations that are triggered by other Acts. Subsection 6(1B) requires a review of sabotage (Division 82) and espionage (Part 5.2) of Chapter 5 of the Criminal Code, to begin as soon as practicable after the third anniversary of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 receiving the Royal Assent. This indicates that the Monitor Act was amended to insert that review obligation around or after 2018. Subsection 6(1E) requires a review of amendments made by Schedules 1, 2 and 3 to the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021, to commence before the end of three years from that Act’s Royal Assent. Subsection 6(1F) requires a review of citizenship cessation provisions as amended by Schedule 1 to the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023, to be completed as soon as practicable after the three‑year period beginning on commencement of those amendments. Section 20 previously had a different paragraph numbering; the current text includes paragraph (g) in the definition of law enforcement or security agency (Office of National Intelligence) and paragraph (j) in the definition of head, reflecting the creation of the Office of National Intelligence in 2018. The definition of agency within the national intelligence community cross‑references the Office of National Intelligence Act 2018. Section 7A was inserted to allow the Parliamentary Joint Committee on Intelligence and Security to refer matters to the Monitor. Section 11A (obligation to fill vacancy) appears to be a later addition. Section 17A (application of finance law) and section 17B (independence) were likely inserted through later amendments to clarify the Monitor’s status. The list in section 4A(2) has been expanded over time; for example, paragraph (l) (Part 2 of the Counter‑Terrorism (Temporary Exclusion Orders) Act 2019) refers to an Act that came into force in 2019, and paragraph (m) provides for regulations to prescribe additional laws. The Act also includes references to the Australian Signals Directorate (ASD) and Australian Geospatial‑Intelligence Organisation, reflecting machinery of government changes. In summary, while the base Act is from 2010, it has been amended at least by the 2018 espionage and foreign interference reforms, the 2021 surveillance amendments, the 2023 citizenship repudiation amendments, and various other amendments to modernise references and add mandatory review obligations.

The Act as supplied does not contain any references to litigation history. No cases are named in the text, and the Act does not record any judicial decisions that have interpreted its provisions. The Act is largely an administrative and oversight statute establishing a review mechanism rather than creating substantive rights or obligations that would typically be litigated. However, the Act does create criminal offences under section 25, and there is a note to section 23 stating that a hearing is a judicial proceeding for the purposes of Part III of the Crimes Act 1914, which creates offences such as perjury and false evidence. It is possible that these provisions have been the subject of prosecution or judicial consideration, but the Act itself does not mention any such proceedings separately. The Act also provides for immunity from legal action under section 31 for the Monitor and those assisting, which could theoretically be invoked in litigation if someone attempted to sue the Monitor. There is no record within the Act of any such proceedings having occurred. The Act’s reporting provisions (Part 4) require the Attorney‑General to table reports in Parliament, and those reports may be the subject of parliamentary or public scrutiny, but again the Act does not reference any litigation. Section 28 requires the Monitor to protect and return classified documents, and a failure to do so could conceivably give rise to legal issues, but the Act does not mention any litigation on that point. In the absence of any litigation history recorded in the source, a reader should note that the Act’s provisions regarding the override of secrecy provisions (section 26) and the reasonable excuse defence (section 25) could be expected to generate judicial interpretation if contested in a prosecution. The Monitor’s powers to summon and compel evidence may also be judicially reviewed. Nonetheless, the Act as provided does not cite any cases or litigation outcomes. The Act does not create a private right of action; the only enforcement mechanisms are the criminal offences and the termination provisions for the Monitor. Therefore, litigation history under this Act is likely limited or not publicly recorded in the text. Any practitioner seeking case law would need to conduct independent searches.

Several provisions in the Act contain traps for the unwary. First, the definition of counter‑terrorism and national security legislation in section 4A is extremely broad. Subsection 4A(1) encompasses any Commonwealth law that “relates to” counter‑terrorism or national security. The non‑exhaustive list in subsection 4A(2) includes laws that might not be immediately obvious, such as telecommunications and surveillance legislation but only to the extent they relate to intelligence community powers; practitioners should check the exact scope of each listed Act. Second, the Act excludes certain matters from the Monitor’s functions in section 6(2): the Monitor cannot review the priorities of, or use of resources by, agencies, and cannot consider individual complaints about agency activities. Those who expect the Monitor to act as a complaints body will be disappointed. Third, section 9 requires the Monitor to give particular emphasis to provisions that have been applied or considered (or purportedly applied) by agency employees in the current or previous financial year. This means the Monitor may focus on recent operational use rather than older provisions, potentially leaving older but problematic laws under‑reviewed. Fourth, the Act contains a mandatory obligation to fill vacancies in section 11A: as soon as practicable after the office becomes vacant, a Monitor or acting Monitor must be appointed. A delay could be legally challengeable. Fifth, the reappointment limit in section 12(2) is strict: a Monitor is eligible for reappointment once only, so no person can serve more than two terms. Sixth, outside employment restrictions in section 15 differ for full‑time and part‑time Monitors. A full‑time Monitor cannot engage in any paid outside employment without the Attorney‑General’s written consent; a part‑time Monitor cannot engage in paid employment that conflicts or may conflict with proper performance. The test for part‑time Monitors is more permissive, but the “may conflict” threshold is low. Seventh, termination for absence under section 19(2)(ca) and (d) has strict time limits: 14 consecutive days or 28 days in any 12 months for full‑time; 7 consecutive days or 14 days in any 12 months for part‑time. Even with leave, any absence beyond these limits could trigger mandatory termination. Eighth, the hearing procedure in Part 3 requires hearings to be in public unless the Monitor directs otherwise, but must be in private whenever operationally sensitive information is given (section 21(2)). A direction to hold a hearing in private is not a legislative instrument (section 21(5)), so it cannot be disallowed. Ninth, the minimum notice period for a summons is 14 days after the notice is given (section 22(3)), and for a production notice it is 14 days after the notice is given (section 24(3)). These periods run from the date of the notice, not from service, so any delay in service eats into the 14 days. Tenth, the reasonable excuse defence in section 25(5) places the evidential burden on the defendant, and the express ground in section 25(6) is only for self‑incrimination or exposure to penalty. Other excuses (such as legal professional privilege) may still be available, but the Act does not codify them; practitioners should be prepared to argue the common law. Eleventh, section 26 overrides secrecy provisions but only for compliance with a notice under sections 22 or 24. It does not necessarily protect voluntary disclosures outside those notice mechanisms. Twelfth, classified documents provided by an agency must be returned as soon as possible after examination under section 28(2)(b); the Monitor cannot retain them indefinitely. Finally, special reports under section 29A require advance written notice to both the Attorney‑General and the Prime Minister with reasons why the report is required. This procedural step must be satisfied before the Monitor prepares the report; failure to give notice could affect the report’s validity.

Compliance with the Independent National Security Legislation Monitor Act 2010 depends on whether the entity or person interacts with the Monitor as a witness subject to summons, as an agency providing information, or as the Monitor itself. For witnesses and persons served with notices under sections 22 and 24, the key step is to comply with the notice within the specified period, which must be at least 14 days after the notice is given (sections 22(3) and 24(3)). If a person cannot comply, they should seek legal advice to determine whether a reasonable excuse exists, particularly the ground of self‑incrimination under section 25(6). A person who answers a question, provides information, or produces a document in response to a notice will not be liable under any secrecy provision (section 26). However, voluntary disclosures outside a formal notice are not protected. Witnesses summoned to appear at a hearing must attend (section 22) and must submit to oath or affirmation if required (section 23). Failure to attend, to be sworn, or to answer a question may lead to prosecution under section 25. Witnesses are entitled to allowances for travel and other expenses as prescribed by the regulations (section 22(4)). For government agencies, compliance involves cooperation with the Monitor’s reviews. Under section 10, the Monitor may consult with the Ombudsman, the Inspector‑General of Intelligence and Security, the Human Rights Commissioner, the Privacy Commissioner, and heads of agencies. Agencies should respond promptly to requests for information or documents and ensure that any operationally sensitive information is identified so that hearings can be closed (section 21(2)(b)). When providing documents with a national security classification or containing operationally sensitive information, the agency head must make arrangements with the Monitor for the protection of those documents while in the Monitor’s possession, and the documents must be returned as soon as possible after examination (section 28). Agencies may also be required to make staff available to assist the Monitor under section 33; such staff must have the Monitor’s written consent to assist, and the Monitor may withdraw that consent at any time (section 33(3)). For the Monitor and any acting Monitor, compliance involves adhering to the independence provisions (section 17B), following mandatory review requirements (sections 6(1B), (1E), (1F)), and giving particular emphasis to recently applied provisions (section 9). The Monitor must have regard to international obligations and national approach arrangements (section 8) and must consult or have regard to agency functions (section 10). The Monitor must comply with reporting obligations: annual reports by 31 December following the financial year (section 29), and if the report contains certain sensitive information, a declassified version must also be prepared (section 29(2A)). Before preparing a special report, the Monitor must give notice to the Attorney‑General and Prime Minister (section 29A(2)). When a statutory review of mandated legislation is completed, a statutory review report must be given to the Attorney‑General (section 29B). For reports on references under section 7, the Monitor must report to the referring Minister, and may give interim reports (section 30). The Monitor must disclose all conflicting interests to the Attorney‑General (section 16) and obtain consent before engaging in outside paid employment if full‑time (section 15). The Monitor must also manage documents and things properly, retaining them only as necessary and allowing reasonable access to those otherwise entitled (section 27).