EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 53
Issued by the authority of the Prime Minister
Independent National Security Legislation Monitor Act 2010
Independent National Security Legislation Monitor Regulations 2011
The Independent National Security Legislation Monitor Act 2010 (the Act) establishes the Office of the Independent National Security Legislation Monitor (the Monitor), whose role is to review the operation, effectiveness and implications of Australia’s national security and counter-terrorism legislation on an ongoing basis.
The Act states that the Monitor will be appointed on a part-time basis.
Section 32 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsections 13(1) and (2) of the Act provide:
13 (1) The Independent National Security Legislation Monitor is to be paid such
remuneration as is determined by the Remuneration Tribunal. If no determination of
that remuneration is in operation, the Monitor is to be paid such remuneration as is
prescribed by the regulations.
13 (2) The Independent National Security Legislation Monitor is to be paid the allowances that are prescribed by the regulations.
These Regulation specify the Monitor’s remuneration where no determination of remuneration is operating currently, and specify the Monitor’s allowances.
Under the Regulation, the Monitor’s annual remuneration will be $243,390, comprising $207,720 in salary and superannuation, and $35,670 in allowances.
These Regulations also provide for the Prime Minister to determine an additional amount of annual remuneration to be paid for the Monitor in the event that the Monitor undertakes work referred by the Prime Minister, or the Committee on Intelligence and Security, that is materially more than the amount of work that the Monitor could reasonably be expected to undertake under the terms and conditions on which the Monitor was appointed.
The additional amount of remuneration must be proportionate to the amount by which the work involved in undertaking the reference is greater than the amount of work the Monitor could reasonably be expected to undertake under the terms and conditions of appointment.
These Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
In accordance with section 17 of the Legislative Instruments Act 2003, consultation was undertaken with the Attorney-General’s Department and the Office of Best Practice Regulation.
These regulations commenced on the day after they are registered
Overview
The Independent National Security Legislation Monitor Act 2010, enacted by the Parliament of Australia, was introduced to address the need for an independent review of the nation's national security and counter-terrorism laws. The Act establishes the Office of the Independent National Security Legislation Monitor, who is tasked with the ongoing assessment of the operation, effectiveness, and implications of these critical laws. This legislative framework ensures that there is a dedicated oversight mechanism to safeguard civil liberties and ensure the laws are proportionate and necessary. The Independent National Security Legislation Monitor Regulations 2011, issued under the authority of the Prime Minister, further define the financial arrangements for the Monitor, including the remuneration and allowances, and conditions under which additional remuneration may be awarded based on the workload. These regulations are integral to the effective functioning of the Monitor and were developed following consultation with relevant departments to ensure compliance with existing legislative requirements.
Scope and Application
The Independent National Security Legislation Monitor Act 2010 establishes the Office of the Independent National Security Legislation Monitor and provides for the Monitor’s remuneration and allowances. The Act applies to the Monitor, who is responsible for reviewing the operation, effectiveness, and implications of Australia's national security and counter-terrorism legislation on an ongoing basis. The Act specifies that the Monitor will be appointed on a part-time basis and will be paid a remuneration determined by the Remuneration Tribunal, or if no determination is in effect, as prescribed by the regulations. The Independent National Security Legislation Monitor Regulations 2011 specify the Monitor’s remuneration and allowances, stipulating an annual remuneration of $243,390, comprising $207,720 in salary and superannuation, and $35,670 in allowances. Additionally, these Regulations provide for the Prime Minister to determine an additional remuneration for the Monitor if the work undertaken is materially more than what the Monitor could reasonably be expected to handle under their terms of appointment. These Regulations extend the application of the Act through subordinate instruments and are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Key Provisions
The Independent National Security Legislation Monitor Regulations 2011 are subordinate legislation that provide further detail to the Independent National Security Legislation Monitor Act 2010. The Act establishes the Office of the Independent National Security Legislation Monitor and its functions, including the review of Australia’s national security and counter-terrorism legislation. The Regulations (regs. 5 and 6) specify the remuneration and allowances for the Monitor, including a base annual remuneration of $243,390, which includes $207,720 for salary and superannuation, and $35,670 in allowances (reg. 5). In the absence of a determination by the Remuneration Tribunal, these amounts are prescribed by the Regulations. Furthermore, the Regulations provide for the Prime Minister to determine additional remuneration for the Monitor if the Monitor undertakes significantly more work than anticipated under the terms of their appointment (reg. 6).
The Regulations impose obligations on the Commonwealth to ensure that the Monitor is remunerated in accordance with the prescribed amounts. This includes paying the specified annual remuneration and allowances, and any additional amounts if the Monitor undertakes extra work as referred by the Prime Minister or the Committee on Intelligence and Security (regs. 5 and 6). The Regulations also ensure that the Monitor’s remuneration is proportionate to the additional work undertaken, reflecting the increased demands on the Monitor’s time and responsibilities.
Breach of the Regulations, particularly concerning the remuneration and allowances prescribed, could lead to legal challenges regarding the proper funding and support of the Monitor’s role. While the Regulations themselves do not explicitly detail penalties for non-compliance, failure to adhere to the prescribed remuneration could potentially undermine the effectiveness of the Monitor’s work. Such non-compliance might also lead to broader legal and administrative consequences, including disputes over the Monitor’s authority and the integrity of their reviews. It is essential for the Commonwealth to comply with these provisions to maintain the independence and effectiveness of the Monitor’s oversight functions.