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Mixed Blessings of the National Security Monitor

Terror, Laws and Oversight

by BINOY KAMPMARK

Trust any bureaucracy to make an important role dull and seemingly vacuous. “Mr Bret Walker SC was appointed by the Governor General on 21 April 2011 as the first Independent National Security Legislation Monitor (INSLM) under the Independent National Security Legislation Monitor Act 2010”. If this doesn’t desensitise you to human rights, nothing will.

The reason why Mr Walker’s position has come under scrutiny is that, after Wednesday, it will cease to exist. The Australian government, intoxicated by secrecy, will have another reason to move further into the dark. Prime Minister Tony Abbott and his henchmen (there are virtually no women) will wield knives and hack their way to tape-free glory in what has been termed “repeal day”. Bureaucracy is set for the chop.

The reasoning by Abbott is based on two rationales. The monitor will be abolished as “all relevant legislation has already been reviewed and the former government ignored all the monitor’s recommendations.”

First, you abolish an entity that is not being listened to. This, in principle is fine, though it discounts the quality of the advice offered. Good advice is often ignored in government circles and it follows that the sounder the advice, the less likely it will be followed. As Walker explains, “The functions of the INSLM go no further than review, report and recommend.” The position has the potential of being a sagacious paper tiger whose advice, if ignored, tends to foster “scepticism … about the political imperative to have the most effective and appropriate counter-terrorism laws”.

The second point is also fundamental – the role is being quite aptly done by others. According to Parliamentary Secretary Josh Frydenberg, the inspector-general of intelligence and security, the Australian Commission for Law Enforcement Integrity, and joint parliamentary committees, were more than adequate. Such faith demonstrates the instinctive belief that Parliament, and its creations, are wise beyond reproach.

As has been pointed out by the Australian Privacy Foundation, if the Australian government wishes to wield the axe over something, go for the “array of draconian and wholly unnecessary counter-terrorism laws that have eroded basic rights, for which task the Monitor’s balanced and expert input would be invaluable.” The relevant question is whether the monitor has been acquitting himself of that task. On closer inspection, there is reason to regard that advice as mixed.

Till now, the INSLM has concerned himself with reviewing parts of the Criminal Code, the Defence Act and the Crimes (Foreign Incursions and Recruitment) Act. Matters such as the woefully unclear definition of terrorism have featured in reports. This is typical in Australian legislation which adopts different definitions of what should be the same concept. “In particular, the fact and nature of the differences between the definition of terrorism for the purposes of the Criminal Code and the definition of terrorism found in the Terrorism Financing Convention are difficult to justify.” So far, so good, even if trite.

There are also nuggets of persuasive wisdom. The monitor shows sympathy for the onerous nature of a prosecution’s case in proving a terrorism financing offence, “but is not satisfied that the lowering of the fault elements to negligence or strict liability would be appropriate.” If you allege it, so goes this line of reasoning, you must prove it under good standards of criminal law. Easier convictions do not necessarily make laws effective.

The reality remains that much advice from the monitor has not been a bed of roses on matters of oversight and trimming back draconian laws. After all, Walker has also been concerned with seeing the efficacy of such laws improved, adding fangs to the instruments. He objects, for instance, to part listings of Hamas and Hezbollah as “terrorist” organisations, a situation that he finds unnecessarily confusing. It is either terrorist, or it is not. (Countries such as the US and Canada think those organisations are terrorist.) “In the INSLM’s view, this is a serious error that has resulted in less than the intended efficacy in the implementation of this part of Australia’s counter-terrorist international obligations.” Principled prosecutors should know better.

Other points deal with how to bring Australian laws in line with international obligations to fight terrorism within the context of the UN Charter. Then come evaluative matters. Is it possible to actually gauge how effective Australia’s terrorism financing legislation has been? The reality remains, as with so much battling an abstract concept, that data on this is skimpy at best.

There have been cumulative reports, and these have been studiously ignored by the governments of the day. Much of this suggests that the monitor’s position was established by the Australian Labor government in 2011 to give the impression of genuine concern over the quality of anti-terrorism laws, many of which were passed during the years John Howard was at the helm. Action has been nigh non-existent.

The agenda of secrecy and abuse has been set by the Abbott government, which will happily dismiss any role that ostensibly prides itself on oversight. The short road from parliamentary democracy to police state mania is not a tough one to take, especially by sleepwalkers of history. But reactions to the monitor’s abolition will be mixed.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com