The Independent National Security Legislation Monitor, Bret Walker SC, has savaged the government’s decision to abolish the post in his final report, pointing out that the rationale of removing “duplication” ignores that no one in government performs his role.

The abolition will leave national security oversight dangerously understrength at a time when the government is contemplating bringing forward at least two and possibly more tranches of additional security legislation as the threat from militants fighting in Syria and Iraq increases.

Walker’s three-year appointment as INSLM, which commenced in 2011, was not renewed, and a bill to abolish the position is currently before Parliament, although not scheduled for debate this week. The abolition is part of the government’s “cutting red tape” initiative, and parliamentary secretary Josh Frydenberg, justifying the abolition, said “multiple, independent oversight mechanisms already exist which perform this role. These include 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 Parliament itself.”

Walker demolishes this argument in his final report, provided to the government in March and released yesterday.

“The proposed repeal of the INSLM Act has been explained as “designed to reduce bureaucracy and streamline government” by removing ‘duplication of responsibilities and between different levels of Government’. The INSLM is not aware of any other officer, agency or ‘level’ of government doing what Parliament required to be done by the INSLM Act enacted in 2010. The Explanatory Memorandum refers to ‘existing independent oversight bodies’ instancing IGIS, Parliamentary committees and Parliament itself. As to IGIS, there would be a very large question of deployable resources were the task undertaken by the INSLM required to be undertaken by IGIS. As to Parliamentary committees, engagement has been sparse. As to Parliament, the record is blank.”

Walker says he “dissents” from the description of his role as red tape and says there was no consultation before the abolition was announced.

There’s no self-interest involved on Walker’s part: he argues in the report that there should be no reappointment to the role of monitor, saying “the nature of the task should not only involve quasi-judicial tenure (during the term of appointment) so as to remove fear of the executive, but there should as well be no hope of preferment from the executive”.

Curiously, in neither of the “exclusive” reports on Walker’s report in Fairfax and News Corp papers today was there any mention of Walker’s complaints. Instead, the reports focused on his call for strengthening powers to cancel passports and citizenship to address the growing threat of Australians’ involvement in Syria.

Security agencies’ concerns about the radicalisation of Australians (often dual citizens) in the conflict in Syria and, now, Iraq, are quite genuine: up to 200 Australians are said to be involved, and the assessment of intelligence agencies is that they pose a potentially significant threat, especially given the involvement of many in extremist group ISIS, regarded as even more extreme than al-Qaeda.

The government is currently readying at least two tranches of national security reforms, with the initial tranche likely to pick up on some of the less contentious reforms put forward under Labor for consideration by the Joint Committee on Intelligence and Security in 2012, as well as an overhaul of the current telecommunications interception regime following consultations with industry. Subsequent tranches are likely to involve more controversial proposals such as data retention.

In the event of a terrorist incident, however, there is an expectation the government will rush to exploit it by pushing through more significant laws and portraying any objections as being soft on terrorism, as happened to Labor’s efforts to ameliorate the Howard government’s savage assault on basic legal rights in the wake of 9/11.

As Walker’s report explains, however, there will be no oversight mechanism for any new laws. Even assuming the Inspector-General of Intelligence and Security does her job effectively — and that’s a heroic assumption — IGIS is purely focused on the performance of agencies, not on security laws themselves. And as Crikey has previously reported, the concept of parliamentary oversight of national security matters is treated with contempt by the government and officials like Inspector-General Vivienne Thom.

That just leaves the Joint Committee on Intelligence and Security — but that committee’s ordinary functions are limited to “the administration and expenditure of agencies”. Worse, the committee has been gutted under the chairmanship of Coalition backbencher Dan Tehan and poses no serious threat of scrutiny on national security laws.

So further national security reforms will have no oversight of the kind that the INSLM has been providing, because of our deeply flawed intelligence and security oversight system.

However, if the government does move to adopt Walker’s recommendations regarding cancellation of passports and citizenship, it would be the first time his recommendations were acknowledged. As he has pointed out twice, neither the Gillard government nor this government bothered to acknowledge his recommendations, either those that would act to strengthen national security powers and give agencies greater flexibility, or those that would curb those powers, such as his initial recommendations in 2012 that both control orders and preventative detention orders are inappropriate and ineffective and, in the case of preventative detention orders, “should simply be abolished”.

A government that genuinely believes its case on national security laws and the need for further reform would bring forward reforms now and maintain and strengthen the position of an INSLM in order to have an independent assessment of them. Instead, our intelligence and security oversight process, which is already broken, will be further degraded. And if the government waits for an incident of some kind in order to rush through hardline laws, the capacity for calm deliberation will be zero.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey