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Legislative Impact

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Committees of Influence

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Abstract

Chapter 5 sets out evidence of the legislative impact the parliamentary committees had on the case study Acts. As discussed in Chap. 2, evidence of legislative impact – such as whether a successful legislative amendment has been made in response to a specific committee recommendation – can provide an objective source of evidence that points to a committee’s overall influence. The nature of the legislative amendment can also provide a strong source of evidence about the committee’s contribution to Australia’s parliamentary model of rights protection, particularly if it is rights-enhancing (for example by limiting the scope of the rights impact of provision, or subjecting the powers within the provision to safeguards or oversight) or rights-remedying (such as removing the provision completely or removing any rights-abrogating features).

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Notes

  1. 1.

    The SLAT Bills package included the Suppression of the Financing of Terrorism Bill 2002 (Cth), the Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002 (Cth), the Border Security Legislation Amendment Bill 2002 (Cth), the Telecommunications Interception Legislation Amendment Bill 2002 (Cth), and the Security Legislation Amendment (Terrorism) Bill 2002 (Cth).

  2. 2.

    The SLAT Bills were first introduced into Parliament on 13 March 2002, and on 20 March 2002, after passing through the House of Representatives, were referred to the LCA Legislation Committee for inquiry and report by 3 May 2002.

  3. 3.

    As it transpired, an extension of time was eventually granted to both committees, with the PJC ASIO reporting on the ASIO Bill on 5 June 2002 and the LCA Legislation Committee tabling its report on 18 June 2002.

  4. 4.

    The two key constitutional issues of interest to the LCA Committee were (1) ‘the constitutionality of the Executive authorising the detention of a person who is not a suspect’; and (2) ‘whether the issuing by magistrates of warrants for questioning of an individual is an exercise of executive power that is incompatible with their role’. LCA Legislation Committee Report on the ASIO Bill 2020 at p. 2.

  5. 5.

    The government introduced an amendment to create a new proposed s 34AA. This responded in part to Recommendation 6 in the committee’s report on the Bill relating to access to legal representation by persons who are the subject of a warrant.

  6. 6.

    Interestingly, by this time, there was much broader agreement among major parties in the Parliament about the need for ASIO, rather than the AFP, to be able to exercise the proposed questioning and detention powers. The debate on the reintroduced Bill centred much more closely on the adequacy of the proposed safeguards in the Bill. For further discussion see Chap. 6.

  7. 7.

    Two additional amendments were made to the Bill following the issue of the LCA Legislation Committee report that detract from established criminal law principles and common law rights. These amendments remove the presumption against bail for people charged with terrorism offences and provide for minimum non-parole periods for persons convicted of, and sentenced to imprisonment for, terrorism offences. Supplementary Explanatory Memorandum, Anti-Terrorism Bill 2004 (Cth) Item 1B and Item 1C.

  8. 8.

    In the National Security Information (Criminal Proceedings) Bill 2004 (Cth) and related committee inquiry reports, ‘court’ refers to ‘court exercising federal jurisdiction, where the offence or any of the offences concerned are against a law of the Commonwealth’: see National Security Information (Criminal Proceedings) Act 2004 (Cth) s 8.

  9. 9.

    Senate, Parliament of Australia, Standing Order 25 (15 July 2014) provides for the appointment of a legislative and general purpose standing committee on Finance and Public Administration. The SFPAC maintains oversight over two portfolios: Prime Minister and Cabinet and Finance (including Indigenous Affairs). The SFPAC has membership structure and inquiry powers similar to that of the LCA Committees. Its Legislation Committee has a government Chair and government majority, while its Reference Committee has a non-government Chair and non-government majority.

  10. 10.

    See, eg, Castan Centre for Human Rights Law, Monash University, Submission No 9; Gilbert & Tobin Centre of Public Law, Submission No 10; National Association of Community Legal Centres, Submission No 13; Civil Liberties Australia, Submission No 14; Law Council of Australia, Submission No 22 to LCA Legislation Committee Inquiry 2010.

  11. 11.

    The package of reforms included ‘telecommunications interception reform, telecommunications sector security reform and Australian intelligence community reform’, and drew upon findings and recommendations made in previous inquiries and reports, including ALRC, For Your Information: Australian Privacy Law and Practice, Report No 108 (May 2008), particularly Recommendation 71.2.

  12. 12.

    The PJCIS also held one private hearing and received three private briefings from relevant agencies in Canberra, and visited the Australian Federal Police headquarters for further operational briefings.

  13. 13.

    For example, direct reference was made to the inquiry conducted by the LCA Committee at pages 36, 47, 60 and 141; direct reference was made to the PJCHR at 38, 87, 98, 232, 234–5 and 247; direct reference was made to the SSCSB at 74, 163, 191 and 209.

  14. 14.

    The PJCIS also recommended that the government provide a response to the outstanding recommendations from the PJCIS’s 2013 report by 1 July 2015 and made recommendations to limit the range of agencies able to access retained data and to strengthen safeguards relating to the sharing and use of data between agencies.

  15. 15.

    For example, Australian Greens Senator Scott Ludlam introduced unsuccessful amendments to extend the ‘journalist information warrant’ scheme to all access to data retained under the Bill, which was also included in amendments circulated by Senator Leyonhjelm.

  16. 16.

    However, it should be noted that the recommendation that data only be accessed with a warrant did not form part of the PJCIS’s recommendations and was only reflected in government amendments to the Bill in so far as it applied to journalists.

  17. 17.

    The SSCSB also requested advice from the government about other mechanisms to increase parliamentary oversight in relation to regulations prescribing the data set, those prescribing additional services to which the data set will apply and ministerial declarations of further authorities and bodies as a ‘criminal law enforcement agency’. (SSCSB, Alert Digest No 16 of 2014 at pp. 2, 6).

  18. 18.

    The Commonwealth Acts include: Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth); Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Australian Security Intelligence Organisation 1979 (Cth); Intelligence Services Act 2001 (Cth); Telecommunications (Interception and Access) Act 1979 (Cth); Australian Passports Act 2005 (Cth); Customs Act 1901 (Cth); Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth); Migration Act 1958 (Cth); Foreign Evidence Act 1994 (Cth); A New Tax System (Family Assistance) Act 1999 (Cth); Paid Parental Leave Act 2010 (Cth); Social Security Act 1991 (Cth); Social Security (Administration) Act 1999 (Cth).

  19. 19.

    The Bill was introduced on 24 September 2014 and passed on 30 October 2014.

  20. 20.

    Under this amendment, the declared area offence provision does not apply if the person enters or remains in the area for a legitimate purpose such as providing aid of a humanitarian nature, performing an official duty, working in a professional capacity as a journalist or making a bona fide visit to a family member.

  21. 21.

    Unsuccessful amendments were also moved by the Australian Greens and independent Senator David Leyonhjelm, addressing some of the concerns raised by the PJCHR.

  22. 22.

    These included requests for further advice from the Attorney-General on: whether the operation of the counter-terrorism laws will, in practice, be compatible with the rights to equality and non-discrimination and whether the proposed introduction of the power to suspend passports for up to 14 days is compatible with the right to freedom of movement.

  23. 23.

    Thirty successful government amendments were made to reflect the 15 recommendations made by the PJCIS. Nine unsuccessful amendments were moved by Senator Wright that also aimed to improve the Bill’s compliance with human rights. The Bill passed both Houses on 2 December 2014 and received Royal Assent on 12 December 2014.

  24. 24.

    The PJCIS issued its report on the Citizenship Bill on 4 September 2015. The PJCHR issued its report with respect to the Citizenship Bill almost a month before the PJCIS on 11 August 2015. The SSCSB issued its report on 12 August 2015. This relatively relaxed legislative time frame may be explained by the change of Australia’s Prime Minister from Tony Abbott to Malcolm Turnbull on 15 September 2015, which may have delayed the debates on the Citizenship Bill for longer than usual.

  25. 25.

    For example, PJCIS Recommendations 2, 6, 8, 9 were designed to narrow the scope of the offences to which the conviction-based provisions of the Bill would apply, responding to concerns raised by the SSCSB. A range of other PJCIS recommendations reflect concerns raised by the SSCSB, for example those relating to concerns about adequate judicial review: see PJCIS Report on the Citizenship Bill 2015 Recommendation 14.

  26. 26.

    The Bill amends a number of Acts including the Telecommunications Act 1997, the Australian Security Intelligence Organisation Act 1979 and the Surveillance Devices Act 2004.

  27. 27.

    The amendments expand the powers available under computer access warrants and authorisations executed by the ASIO, including by allowing ASIO to intercept a communication for the purpose of executing a computer access warrant and undertake activities to conceal access after the expiry of a warrant.

  28. 28.

    Irving distils the key constitutional questions arising from the Bill as follows: “First, does the Executive have the constitutional power to exclude citizens on the grounds that they may commit or support an act of terrorism, and to attach conditions on a TEO, the breach of which attracts imprisonment? Second, does the Commonwealth have the power in the first place to pass a law that prevents an Australian citizen from entering Australia?”. (Irving 2019 p. 68.)

References

Bills

Explanatory Memorandum

Legislation

  • Anti-terrorism Act 2004 (Cth).

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  • Anti-Terrorism Act (No 2) 2005 (Cth).

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  • Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth).

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  • Australian Passports Act 2005 (Cth).

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  • Australian Security and Intelligence Organisation Act 1979 (Cth).

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  • Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2002 (Cth).

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  • Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth).

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  • Counter-Terrorism Legislation Amendment Act (No 1) 2014 (Cth).

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  • Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).

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  • Independent National Security Legislation Monitor Act 2010 (Cth).

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  • Intelligence Services Act 2001 (Cth).

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  • National Security Information (Criminal Proceedings) Act 2004 (Cth).

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  • National Security Legislation Amendment Act 2010 (Cth).

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  • Parliamentary Joint Committee on Law Enforcement Act 2010 (Cth).

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  • Prevention of Terrorism Act 2005 (UK).

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  • Security Legislation Amendment (Terrorism) Act 2002 (Cth).

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  • Telecommunications (Interception and Access) Amendment Act 2008 (Cth).

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  • Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth).

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  • Telecommunications (Interception) Act 1979 (Cth).

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Authors and Affiliations

  1. Justice and Society, University of South Australia, Adelaide, SA, Australia

    Sarah Moulds

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  1. Sarah Moulds
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Moulds, S. (2020). Legislative Impact. In: Committees of Influence. Springer, Singapore. https://doi.org/10.1007/978-981-15-4350-0_5

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  • DOI: https://doi.org/10.1007/978-981-15-4350-0_5

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