Jessie Blackbourn, Gilbert + Tobin Centre of Public Law, UNSW

1. Independent Reviewers of Anti-Terrorism Laws as Effective Oversight Mechanisms: Australia and the UK Compared Jessie Blackbourn, Gilbert + Tobin Centre of Public Law, UNSW

2. Why examine independent reviewers? Enactment of new laws post-9/11 Limitations of existing constitutional review mechanisms Do independent review mechanisms offer meaningful and effective oversight? Does the Australian case study offer any lessons for the UK?

3. How to examine independent reviewers Christopher Hood et al, Regulation Inside Government: Waste-Watchers, Quality Police, and Sleazebusters (OUP, 1999) Three ‘basic dimensions’ for meaningful and effective government oversight: ‘the “regulator” has some kind of official mandate to scrutinize the behaviour of the “regulatee” and seek to change it.’ ‘there is some degree of organizational separation between the “regulating” bureaucracy and the “regulatee”’ ‘one bureaucracy aims to shape the activities of another’

4. Mandate Independent Reviewer (UK) Independent Monitor (Australia) Formal Governed by the Independent National Security Legislation Monitor Act 2010 (Cth) No set approach Coercive information gathering powers Strict terms of reference Review the operation, effectiveness, implications, appropriateness, proportionality and necessity of the laws • Informal • No single statutory basis governing the role, function, powers of the reviewer • No set approach • No identifiable powers • No statutory terms of reference • Review the ‘operation’ of the Acts

5. Independence Independent Reviewer (UK) Independent Monitor (Australia) Closed appointment process Requirement of bipartisan support prohibits appointment of unduly sympathetic Monitor Term limits of three years, strict guidelines for renewal, dismissal, termination Single renewal prohibits ‘capture’ by government agencies (eg. ASIO/AFP) Funded and housed at the DPM&C Reports to Prime Minister Prime Minister to table in the parliament within 15 sitting days (2013 = budget day) • Closed appointment process • Allows the appointment of a person sympathetic to the government • Term limits of three years, but no regulation of renewal, dismissal, termination • Unlimited renewal allows for the possibility of ‘capture’ • Funded and housed at the Home Office • Reports to Home Secretary • Home Secretary to table in parliament at an unspecified time

6. Influence Independent Reviewer (UK) Independent Monitor (Australia) Government has failed to respond meaningfully to past reviews Will the response to the Monitor be any different? Timing of publication of report on budget day, plus tabling of a second report on the same day suggests not No framework regulating the government’s response to reviews – it can ignore them • Government has typically failed to respond meaningfully to any critical reviews • ‘notes’ recommendations; keeps recommendations ‘under review’ • Tends to readily accept recommendations which propose strengthening the laws • No framework regulating the government’s response to reviews – it can ignore them

7. Conclusions Independent Reviewers perform a range of functions, as well as formal review of the laws: • Inform parliamentary and public debate • Examine laws broadly and in context • Highlight misuse of the laws • Reveal longitudinal trends However, for it to be meaningful and effective it must be able to shape government counter-terrorism policy • UK Independent Reviewer: only really serves this purpose when it proposed reforms the government ‘likes’ • Australian Independent Monitor: too soon to tell how the government will respond, but past history and the timing of this year’s report does not bode well