Finance and Public Administration Legislation Committee
Estimates hearings, 13 February 2012
Mr Bret Walker SC, Independent National Security Legislation Monitor
CHAIR: I welcome the Independent National Security Legislation Monitor, Mr Bret Walker. Would you like to make an opening statement, Mr Walker?
Mr Walker: No.
CHAIR: We will go to questions. Senator Rhiannon.
Senator RHIANNON: Mr Walker, congratulations on your job. I understand you have been in it for about a year now. Could you share with the committee your work plan for the first year, what you have focused on and what your findings have been, so we get a sense of how the job is going.
Mr Walker: The program of work was partly shaped by the fact that I was appointed in late April last year and that the annual period for the mandatory annual report ends mid-year so that my first annual report was due after not many weeks in office. I chose to delay, I should say within the statutory period but towards the end of the statutory period, my first annual report so as to use it in the following way. I decided the area was one that required a deal of attention to comparative law, a deal of attention to commentary—academic and otherwise outside of government—but, of course, in particular understanding the functions, operations and priorities of the agencies in question. All of that meant that I had a deal of meeting to do, which I have done—not accomplished but started. I have a lot of reading to do, a lot of which I have done but I fear will never be accomplished because it is published I think more quickly than anyone can read it and, in particular, a deal of research into comparative law, practice and commentary.
My first annual report therefore goes beyond reporting on my activities up to 30 June last and contains a preliminary survey of the whole area of all the statutes in question. I have assembled questions which I believe arise on the face of the statutes and consideration of their operation and thought about their compliance with international law evoke. The work program for the next period—which formally ends on 30 June, but I can see tasks which will go beyond that—has been set pretty much by the set of questions I have raised for myself at the end of my first report.
They will focus, I can tell the committee, first of all and particularly on the only one of the extraordinary powers to have been used—namely, the ASIO questioning warrants—and the bracketing of powers that it is sensible to consider alongside them. There will also be questioning and detention warrants, which have never been issued; control orders, which, with two well-known exceptions, have not been used; and preventative detention orders, which have not been used. I intend that my inquiries commencing very soon with the relevant agencies will be focusing on those extraordinary powers first.
Senator RHIANNON: Just to understand: have you been left to determine your own agenda, or has PM&C called on you to provide any specific advice or to review a particular case or even, separate from PM&C, are you looking at any specific cases? If so, what are they?
Mr Walker: If by 'specific cases' you mean the application of any of these powers to a named individual with somebody else supplying the name, the answer is no. Am I looking at cases of named individuals? Yes, of course—every case has a named individual. PM&C has no role, let alone power, to direct me what to look at, let alone not what to look at. The Prime Minister has a power, which has not been exercised, to refer matters to me.
Senator RHIANNON: Could you explain how the process works? You have just said that the Prime Minister has not used those powers but that she can direct that the report go to both—
Mr Walker: She can refer matters to me upon which I must report; there are no such ad hoc referrals that have been made. But my main function, as I will be so bold as to call it, is the mandatory annual report on what might be called the operation, effectiveness and appropriateness of these laws.
Senator RHIANNON: That will be tabled in parliament, will it? If so, when?
Mr Walker: There is mandatory tabling by the Prime Minister of a report. If my staff's arithmetic is correct—and I have no reason to doubt it—that is due at the latest by 19 March.
Senator RHIANNON: You have this enormous task in front of you. You reported in the May estimates that you have two staff and that part of their role within PM&C is dedicated to supporting your office. Does that cover both administration and research?
Mr Walker: The short answer is: 'No, and things have moved on since then.' In effect, in terms of nominated and allocated staff, I have one for three days a week who is an adviser and does research. I am very content, as my first annual report makes clear, with the quality of that assistance. I could do with a bit more from the same source and I am in the process of discussing with the department access to use of clerical, bibliographic and administrative assistance that I do not have at the moment.
Senator RHIANNON: You said 'more from the same source'. Do you mean more from the person who is employed for three days?
Mr Walker: Yes.
Senator RHIANNON: So you would like that position to be full-time?
Mr Walker: No, four days.
Senator RHIANNON: So you would like that position to be four days and that the monitor position be given more technical administration support additional to the four days?
Mr Walker: I may not understand the jargon—I do not know about technical. What I want is somebody who can marshal the documents that my adviser and I read and obtain—who can maintain, in particular—bibliographical records. This is an area of work that hugely depends upon proper reading and leaving a track of one's reading in a deal of material, as much international—more international—than local, and the organising of the meetings, which is a very important face-to-face part of the job.
Senator RHIANNON: So additional to what you hope could be expanded to a four-day position, what do you envisage—a full-time position as well?
Mr Walker: No. I would wish to proceed by increments rather than into the unknown. I can see three days' work for somebody who is—how shall I say?—a willing worker.
Senator RHIANNON: Were you involved at all in the 2011 independent review of the intelligence community?
Mr Walker: No.
Senator RHIANNON: Were you called on to give advice about the relationship between our counterterrorism legislation and Australian human rights obligations in any context with this review?
Mr Walker: No.
Senator RHIANNON: Have you been given an unclassified version of the final report of this review?
Mr Walker: Yes.
Senator RHIANNON: Thank you. I assume you are aware of the promised COAG review of federal and state counterterrorism laws. As of December, that review is now more than six months overdue. At the December estimates Mr Roger Wilkins of the Commonwealth Attorney-General's Department blamed the delay, in part, on the delay in appointing a monitor and lack of clarity about how your review of antiterrorism legislation would interact with that review. How does your reviewing role and the COAG review interact?
Mr Walker: If and when there is a product from me and a product from them sufficiently comparable, they could be placed side by side to note discrepancies to the credit or discredit of one or the other, or simply to note that there are a variety of views—or perhaps even to see there is a uniformity of views; otherwise, not at all. The essence of my position and its independence is that I am not a committee—if I am, I am a committee of one—so the COAG review, which, as the acronym makes clear, is very much a committee, is fundamentally different from my position. If there is interaction, I would hope it would be in the nature of frequent and intimate sharing of information and opinions between us. But, in that regard, there may be one-sidedness, because I report to the parliament through the Prime Minister and would not regard it appropriate in my functions, as it were, to become in any way an adjunct or annex to the COAG review.
Senator RHIANNON: In your response just then, you used the phrase 'if there is an interaction'. Does that mean that, at this stage you are unaware of whether there will be an interaction?
Mr Walker: That is right.
Senator RHIANNON: Do you believe there should be an interaction?
Mr Walker: Yes, I do.
Senator RHIANNON: What steps have been taken to ensure there is an interaction?
Mr Walker: I think I have probably given some very preliminary suggestions as to what might or might not be done, but they are so preliminary that I do not think I would describe them as any steps having been taken. The matter is still a matter of theory, as far as I am concerned.
Senator RHIANNON: To take that interaction forward, who are you negotiating that with?
Mr Walker: I am not.
Senator RHIANNON: I am sorry; I may have misunderstood. Sometimes I find the microphones here a bit difficult. I am interested in understanding the interaction. You said 'if the interaction occurred'. Am I correct in understanding that you are not initiating that interaction but think it would be useful for it to occur?
Mr Walker: That is not quite it. I am certainly not initiating anything in terms of corresponding or seeking to speak with anybody—no, I am not. Do I think it would be a good idea? Yes, I think it would be a good idea.
Senator RHIANNON: Maybe you have answered this, but just to clarify: have you had any relationship meetings or sharing of information with the COAG review at this stage? Has there been anything?
Mr Walker: No.
Senator RHIANNON: Do you know anything about the progress of that review?
Mr Walker: No—that is, I have information as of several months ago as to something which I would not exactly call its 'progress'. But, as to what stage it was up to—which I do not think would be described as progress—I do not know since then, no.
Senator RHIANNON: So you are not aware of why that review has been delayed?
Mr Walker: I am aware of views such as those you attributed to Mr Wilkins, and they sound credible to me.
Senator RHIANNON: We want to go back to your work plan for the coming period, Mr Walker. Is it possible for you to table that work plan?
Mr Walker: No.
Senator RHIANNON: What information are you able to share with us in terms of your work for the coming year?
Mr Walker: Treating that as up to the period ended 30 June, which provides the year upon which I will give my next annual report, the answer relates to the topics I mentioned earlier—that is, the set of four extraordinary powers that appear to me, after my first year's work, to be the most urgent to consider. They are: questioning warrants, questioning and detention warrants, control orders and preventative detention orders. The way in which I intend to investigate that is, I suppose, obvious from their nature. Only one of those, the first, has actually been resorted to in practice, and so each and every one of those cases—that is, cases of individuals—will be reviewed by me. I intend that review not to involve any second-guessing of the inspector-general's work but, rather, the inspector-general's work to provide important bases for my further investigation into effectiveness and appropriateness.
Senator RHIANNON: I want to go back to the process here. I understand that the legislation does allow for the Prime Minister to ask for a private progress report on a review before the review has been completed. Has the Prime Minister asked for any private progress report?
Mr Walker: No.
Senator RHIANNON: With regard to your reports, do you have any discretion with regard to whether the reports should be made public or is it always at the discretion of the Prime Minister?
Mr Walker: Both I and the Prime Minister have duties in that regard and they have to do with what could broadly be called classified material. I would not call it a discretion, but I have to form a judgment. It is a straightforward question to state, and I expect it will be straightforward in practice. Classified material will not be published by me or the Prime Minister, I am sure, and the law so requires.
Senator RHIANNON: With that answer, are you explaining to the committee that the only reason a report or information would not be released is on that basis?
Mr Walker: That is right.
Senator RHIANNON: Does that mean that sometimes your reports may be redacted to hold back on the—
Mr Walker: Yes, quite so.
Senator RHIANNON: In the course of your investigations I assume you have worked directly with ASIO, the Australian Federal Police and Attorney-General's, but that is obviously just an assumption from looking at the way the monitor has been set up. Could you share with the committee which agencies you have met with in the last year?
Mr Walker: You have named three of them, but there is also Foreign Affairs and Trade and Defence, Prime Minister and Cabinet of course.
Senator RHIANNON: For those agencies you have just named or we have named together, have these agencies been forthcoming with the information you are asking for?
Mr Walker: Yes. I have made it clear in my first report that I have no misgivings and certainly nothing to report other than full cooperation. Mind you, the first half-year of my operations is very much an orientation and broad survey approach and, given my forensic background, I would not describe anything I have done as being an investigation. I have been finding things out but it is only in that sense that it has been an investigation.
Senator RHIANNON: Mr Walker, have you met with any civil society groups?
Mr Walker: Yes.
Senator RHIANNON: Which ones.
Mr Walker: I wonder if I could supply you a list on notice. I have it exhaustively listed but it suffices to say that I have met with extremely helpful groups and individuals from the academy, from outside the academy and from the legal profession, all of which I would include in the expression 'civil society'. Some are groups with names that you will recognise and some are less formal than that.
CHAIR: Can I ask you to start winding up, please. We are running out of time.
Senator RHIANNON: Thank you, Madam Chair. That is all.
CHAIR: Mr Walker, I do not believe there are any further questions, so thank you very much for appearing before us. We will move on to the Department of Prime Minister and Cabinet.