New INSLM James Renwick’s year of acting independently

By Stephen Easton

Monday February 27, 2017

The federal government’s new Independent National Security Legislation Monitor, law professor and barrister James Renwick, may have to wait a year for the government to remove the word “acting” from his job title.

“Preparatory arrangements for his permanent appointment” to the part-time role will take 12 months, according to the Prime Minister’s announcement last week, but it’s not clear why the independent legal watchdog requires such a long period of insecure employment this time around. Renwick issued a short statement saying the call-up was an honour and he looked forward to starting as acting monitor immediately.

James Renwick

The Sydney silk currently practises commercial and public law, has previously worked in the military and the public service, and represented the Commonwealth at the inquiry into the Lindt Cafe siege. He is a Fulbright Scholarship alumnus and an adjunct professor attached to the Australian National University law school.

Malcolm Turnbull referred to a supposedly growing threat from terrorism and espionage in the announcement, indicating he has every intention of adding to the growing pile of “national security and counter-terrorism legislation” that has built up over the past 15 years. He suggests Renwick should have plenty of work to do:

“In particular, as it becomes more important than ever for the government to continue modernising and strengthening our laws to address the growing and evolving terrorist and espionage threat at home and abroad, the relevance of the independent reviewer becomes similarly important. This will help ensure that our individual freedoms that underpin the Australian way of life are balanced against the need to fight terrorism and other threats with every tool at our disposal.”

The acting INSLM also has “a strong understanding of national security issues and the operation of relevant security agencies” to go with his legal expertise, the PM added. Renwick has been a part time senior member of the NSW Civil and Administrative Tribunal since 2014.

Prior to being appointed a senior counsel in 2011, he worked as a principal legal officer at the federal Attorney-General’s Department and in a similar role for the Northern Territory government.

The first INSLM, Bret Walker, stayed in the office for three years but the second, Roger Gyles, left after scarcely more than a year at the end of October last year. The government is still considering its response to his report on Certain Questioning and Detention Powers in Relation to Terrorism , which he produced just before stepping down and was tabled on February 8.

Gyles recommended the Australian Security Intelligence Organisation’s compulsory questioning powers be harmonised with those of the Australian Crime Commission and the repeal of ASIO’s “questioning and detention power”, which the AGD acknowledged had “never been sought, or used” by the domestic spy agency.

Law Council of Australia president Fiona McLeod said that most of the recommendations should be adopted swiftly. She said the balance between individual freedom and the need to appropriately empower security agencies was “out of kilter” in the case of the questioning and detention powers.

“The INSLM has rightly acknowledged that a warrant enabling a person to be detained in custody, virtually incommunicado, without even being accused of involvement in terrorist activity, on grounds which are kept secret and without effective opportunity to challenge the basis of his or her detention is an extraordinary power,” McLeod said.

“Currently, immediate detention under a QDW arises on the basis of an assessment by the Attorney-General, rather than a court that has examined the evidence supporting detention. This raises serious questions about the separation of powers and the appropriateness of administrative detention.

“ASIO already has the power to arrest and question without charge for a broad range of preparatory and inchoate offences, to order the surrender of passports, and to prohibit a person leaving Australia.”

The Parliamentary Joint Committee on Human Rights has also suggested ASIO’s current powers go too far and probably aren’t compatible with basic human rights principles like freedom of movement.

“The power to detain individuals for questioning unjustifiably infringes upon the right to freedom of movement and the notion that individuals should not be held in custody without at least a reasonable suspicion of involvement in terrorism,” McLeod said.

The Law Council also broadly agrees with Gyles that “dead time” — when a person is locked up by the Australian Federal Police but that time is not counted as part of the investigation period — should have a limit placed on it.

“Limiting dead time to 10 days, as the INSLM recommends, might by argued to be too long,” said McLeod. “However, it is vastly superior to current arrangements under which dead time can be potentially unlimited.”

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