The Joint Committee on Intelligence and Security has drawn attention to the increasingly embarrassing absence of an Independent National Security Legislation Monitor in its latest report on the government’s national security reforms.

The post has been vacant since Bret Walker SC’s term expired in April, when the government announced the position would be abolished. However, the government reversed itself in July, declaring when it unveiled its first series of amendments to national security legislation that the role would be retained. More than four months later, it remains unfilled, Walker having recommended in his final report that there be no reappointments to the position to ensure its independence.

The INSLM has featured in the new national security oversight framework established by JCIS as it has worked its way through the first two tranches of national security reform legislation and, most recently, the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, which dealt with cooperation between foreign intelligence service ASIS and Defence, changes to ministerial authorisation processes for intelligence agencies and, most significantly, changes to system of control orders, which Walker had specifically criticised in 2012 and suggested be abolished. JCIS, chaired by Liberal backbencher Dan Tehan, has used the three inquiries to significantly expand its hitherto limited role, as the committee is confined by legislation to administrative matters unless a specific reference is made to it by government. Complementary to that, however, the committee has recommended an expansion in the role both of the Inspector-General of Intelligence and Security and the INSLM — whenever we get one.

In yesterday’s report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, the committee’s frustration with the lack of an appointee was finally made plain. In relation to control orders, the committee said:

“The Committee considers that the extended delay in appointing an Independent National Security Legislation Monitor (INSLM) leaves a gap in accountability and oversight of the control order regime, and recommends that this appointment should be finalised as a matter of absolute urgency.”

The committee wants the INSLM to undertake a review of control order sections of a COAG report on counter-terror legislation from 2013, which has yet to be dealt with by the government, taking into account current national security circumstances — and perhaps giving the new incumbent an opportunity to revise Bret Walker’s hostility to the current framework. An appointment to the position is understood to be close, though it’s far from the only appointment currently being held up inside the government (read, the Prime Minister’s Office). The crippled Australian Bureau of Statistics still has no head coming up to nearly a year after the departure of Brian Pink, and we still don’t officially know that John Fraser will replace Martin Parkinson at Treasury.

Meantime, a fourth JCIS inquiry, into data retention, has yet to be finalised as it is still being negotiated between the government and the opposition. The extent to which Labor is prepared to push for a thorough inquiry rather than the kind of rapid-fire inquiries that have been demanded of JCIS so far by the government will be an early guide to how far it is prepared to cooperate with the government’s mass surveillance agenda.

Peter Fray

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