Bills Digest No. 45, 2004-05
Australian Security Intelligence Organisation Amendment
Bill 2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Australian
Security Intelligence Organisation Amendment Bill
2004
Date
Introduced: 17
November 2004
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Royal
Assent
To expand the circumstances in which ASIO can carry out security
assessments.
Background
The immediate impetus for the Bill is to enable ASIO to carry
out security assessments as part of a new regulatory regime for
ammonium nitrate agreed to by the Council of Australian Governments
(COAG) and being implemented by the States and Territories.
It is important to note that, by itself, ammonium nitrate is not
an explosive. However, when combined with fuel oil (as
ANFO(1)) it is used as an explosive in mining and
quarrying operations. Ammonium nitrate is also used by the
agricultural sector as a fertiliser. It has been used to produce
explosives in terrorist actions for example, by the Oklahoma
bomber, Timothy McVeigh.(2) The Attorney-General s
second reading speech records that Jemaah Islamiyah had planned to
use ammonium nitrate to bomb the United States and other Western
targets in Singapore, including the Australian High Commission.
(3) In addition, ammonium nitrate has been implicated in
a number of major industrial explosions.(4)
According to the Queensland Department of Natural Resources and
Mines:
Approximately 1,000,000 tonnes of ammonium nitrate
and ammonium nitrate products is used in Australia each year.
Queensland is the largest user with approximately 500,000 tonnes of
explosives-grade ammonium nitrate being circulated and used around
the State per year. Queensland manufactures approximately 490,000
tonnes and imports over 30,000 tonnes per year. (5)
Most ammonium nitrate in Australia is used to make explosives.
In Queensland, for example, 98% of ammonium nitrate is consumed by
the mining industry, with the remaining 2% being used by farmers,
mainly horticulturalists.(6) Apparently, ammonium
nitrate is not preferred as a fertiliser in many parts of Australia
for agronomic reasons. (7)
One of the issues discussed by COAG at its meeting on 6 December
2002 was counter-terrorism, including measures enhancing and
coordinating counter-terrorism initiatives. COAG noted deficiencies
in the protection of some hazardous materials and agreed to a
national review of the regulation, reporting and security around
the storage, sale and handling of hazardous materials, including
ammonium nitrate. (8)
On 25 June 2004, COAG agreed that the States and Territories
would introduce a licensing scheme for ammonium nitrate products
with greater than 45% ammonium nitrate content.(9) This
is called SSAN (security sensitive ammonium nitrate):
COAG agreed on a national approach to ban access
to ammonium nitrate for other than specifically authorised users.
The agreement will result in the establishment in each jurisdiction
of a licensing regime for the use, manufacture, storage, transport,
supply, import and export of ammonium nitrate. The licensing regime
will ensure that ammonium nitrate is only accessible to persons who
have a demonstrated legitimate need for the product, are not of
security concern and will store and handle the product safely and
securely. This arrangement will balance security considerations
with the legitimate needs of industry and farmers. A national set
of principles for regulating ammonium nitrate can be found at
Attachment
D.
COAG agreed that the States and Territories would
use their best endeavours to ensure the legislative arrangements
for the licensing regime would be in place by 1 November 2004,
with administrative arrangements to be finalised as soon as
possible thereafter. COAG also noted that the Australian Government
would continue to undertake investigations on the viability of
completely banning ammonium nitrate fertilizers of security concern
as a matter of priority, taking into account whether effective,
non-detonable, alternatives can be developed, and provide
information on any alternatives to the States and Territories.
(10)
As indicated above, COAG agreed that an authority will be
required for any importation, manufacture, storage, transportation,
supply, export, use or disposal of SSAN. Anyone wishing to obtain
an authority will have to demonstrate a legitimate need for access
to SSAN, provide safe storage and handling procedures, report any
loss or theft of SSAN, undergo background checks and provide proof
of identity.(11)
COAG s definition of legitimate use indicates the range of users
and uses of SSAN:
Legitimate need is likely to include use in
commercial production processes, mining, quarrying, the manufacture
of fertilizer and explosives, educational, research and laboratory
use, commercial agricultural use by primary producers, and services
for transportation, distribution and use of the product. Household
and domestic use, and the fertilisation of recreational facilities
will not be considered a legitimate need.(12)
In relation to criminal history and ASIO checks, COAG s
Principles for the Regulation of Ammonium Nitrate
state:
Background checking must include police and ASIO
checks.
a) As a minimum, background checks will be
required for the person responsible for the security of SSAN at a
workplace ( responsible person ), as well as for any person who has
unsupervised access to SSAN.
b) The owners and directors of companies which are
not publicly listed will also undergo background checking.
c) Police checking should be done regularly.
d) ASIO checks need only be done once, provided
ASIO is notified of the change of name of a person who is subject
to security checking.(13)
The States and Territories have begun putting licensing regimes
in place in accordance with the COAG agreement. For instance, SSAN
has been declared an explosive in Queensland under the
Explosives Act 1999(14) and Victoria has passed
the Dangerous Goods Legislation (Amendment) Act 2004 which
allows regulations to be made implementing a licensing regime for
ammonium nitrate and other high consequence dangerous goods.
(15)
COAG s preferred start date for new State and Territory
licensing legislation was 1 November 2004. In general, this start
date was not met. Instead, it is anticipated that State and
Territory licensing regimes will all be in place by Autumn 2005 and
that there will be a transition period until 30 June 2005 enabling
people to obtain a licence and make required security
arrangements.(16)
ASIO is established under the Australian Security
Intelligence Organisation Act 1979 (ASIO Act). Its functions
include:
-
obtaining, correlating and evaluating intelligence relevant to
national security
-
communicating this intelligence and advising the Commonwealth
about national security, and
-
providing security assessments to Commonwealth agencies and for
State and Territory purposes.(17)
ASIO is empowered to provide security assessments to
Commonwealth agencies in relation to what is called prescribed
administrative action .(18) This includes action
relating to whether a person should have access to national
security information or to places where access is controlled on
national security grounds. As an example, before a Commonwealth
agency grants a security clearance for designated positions, it is
required to assess candidates general suitability for access.
(19) This includes obtaining a security assessment from
ASIO.
Assessments can also be made for State or Territory
purposes.(20) Where ASIO provides assessments for State
or Territory purposes it is, in general, prohibited from
communicating that assessment directly to the State or
Territory.(21) Instead, the information must be
transmitted via a Commonwealth agency. Additionally, ASIO can only
make assessments for State and Territory purposes to the extent
that proposed State or Territory action affects security connected
with the functions and responsibilities of a Commonwealth
agency.(22)
A security assessment includes advising whether a particular
person should have access to national security information or
secure places.
If ASIO makes an adverse or qualified assessment of a
person,(23) then in general the person must be informed
in writing and can apply to the Administrative Appeals Tribunal
(AAT) for a review of that assessment.(24) However, a
person will not know if they have been the subject of a security
assessment if the Attorney-General certifies that withholding this
information is essential to national security. Similarly, a person
will not know the grounds on which a security assessment is made if
the Attorney-General certifies that this would be prejudicial to
security. The exercise of the Attorney-General s certification
powers thus can effectively prevent a person making an appeal to
the AAT.(25)
Item 1 of Schedule 1 repeals
and replaces paragraph 35(a) of ASIO Act. At present, paragraph (a)
enables security assessments to be carried out so that a decision
can be made about whether a person should have access to
information or to places where access is controlled or limited on
security grounds. New paragraph 35(a) adds a
further provision enabling security assessments to be carried out
in relation to action concerning a person s ability to perform an
activity relating to a thing (other than information or a place )
where that ability is controlled or limited on security
grounds.
The Explanatory Memorandum notes that current references to
information and place in paragraph 35(a):
[Are] not sufficiently broad to cover the range of
activities that a person may perform in relation to, or involving,
a thing that is not information or a place. For example, whilst the
Act covers access to places where ammonium nitrate is stored, it
does not, to the extent that they are not linked to access to a
place , cover other activities such as purchasing, supplying,
importing, exporting, possessing, handling, using, storing,
guarding, transporting, manufacturing, disposing or any other
activity in relation to, or involving, ammonium nitrate if a person
s ability to perform that activity is controlled or limited on
security grounds.
Subsection 39(2) of the ASIO Act enables a Commonwealth agency
to take temporary, urgent action to prevent a person accessing
information or places to which access is limited on security
grounds on the basis of preliminary advice by ASIO. Item
3 of Schedule 1 repeals and replaces
subsection 39(2) so that a Commonwealth agency will be also able to
take temporary, urgent action to prevent a person performing an
activity in relation to a thing on security grounds in response to
preliminary advice from ASIO.
Concluding Comments
It is unclear whether there will be any resource implications
for ASIO in providing security assessments in relation to the use
of SSAN. Material published by the Queensland Government suggests
that ASIO checks will be [checks] of a name against a data base to
ensure that someone is not of known security concern. It is not an
investigation into a person s past or their political activities.
(26)
The amendments are intended to be broad enough to extend beyond
security assessments relating to ammonium nitrate access. As the
Explanatory Memorandum makes clear:
Whilst the proposed amendments have arisen as a
result of discussions about controlling access to ammonium nitrate,
the amendments are intended to be sufficiently broad to cover, to
the extent that is possible, issues which may arise in the future
such as a person s ability to perform an activity in relation to,
or involving other hazardous materials.(27)
Nor are the amendments limited, in their terms, to activities
involving hazardous materials. They are designed to encompass a
person s activities involving any thing where the person s
ability to perform the activity is controlled on security
grounds.
It is important to note that while the amendments add the
category of thing to the existing categories of information and
place , the security assessment regime will only apply to
activities that are controlled or limited on security
grounds.(28) The word security is defined in section 4
of the ASIO Act to mean the protection of the Commonwealth, the
States and Territories from such things as espionage, sabotage,
politically motivated violence, the promotion of communal violence,
attacks on Australia s defence system and acts of foreign
interference.
Apart from having to fall within the bounds of security as
defined by the Act, ASIO s ability to provide security assessments
for State and Territory purposes is also limited by the terms of
section 40 of the ASIO Act. Subsection 40(1) provides that any
security assessment for State or Territory purposes must be in
relation to State or Territory action that would affect security in
connection with matters within the functions and responsibilities
of a Commonwealth agency (29) It is unclear how many
SSAN licence decisions under State and Territory law relating
ammonium nitrate access will satisfy the statutory link with
security in connection with matters within the functions
and responsibilities of a Commonwealth agency which is
necessary to activate ASIO s security assessment powers. Parliament
may wish to consider the practical implications of this statutory
requirement for the new ammonium nitrate licensing regime.
-
Ammonium nitrate and fuel oil.
-
There appears to be no evidence that ammonium nitrate was used
in the Sari Club bombing in Bali on 12 October 2002. The Sari Club
and Paddy s Bar were targeted by this terrorist act, which left 202
people dead, including 88 Australians.
-
Attorney-General, second reading speech, Australian Security
Intelligence Organisation Amendment Bill 2004, House of
Representatives, Hansard, 17 November 2004, p. 2.
-
In 1947 in Texas City (USA), 2300 tons of ammonium nitrate
fertiliser on board a ship initiated a fire and detonated, killing
nearly 600 people, injuring 3500 and shattering windows up to 40 km
away. In September 2001, in Toulouse (France) there was an
explosion in a warehouse in which some 200-300 tonnes of ammonium
nitrate was stored. The accident resulted in 30 deaths and over
2400 people were injured. Nigel Brew, Foreign Affairs, Defence and
Trade Section, Parliamentary Library, personal communication.
-
Queensland Government, Department of Natural Resources and
Mines, Key points for discussion regarding the regulation of
security sensitive ammonium nitrate (SSAN) , 1 November 2004,
http://www.nrm.qld.gov.au/mines/explosives/pdf/ssan_discussion.pdf
(accessed 24 November 2004).
-
ibid.
-
Australian Customs Service, Trade Measures Branch, Report
No. 28, Ammonium Nitrate from the Russian Federation,
2 March 2001.
-
Council of Australian Governments, Communique, 6 December 2002.
http://www.coag.gov.au/meetings/061202/index.htm#terrorism
(accessed 24 November 2004).
-
SSAN is defined as ammonium nitrate, ammonium nitrate emulsions
and ammonium nitrate mixtures containing greater than 45% ammonium
nitrate, excluding solutions.
-
Council of Australian Governments, Communique, 25 June 2004.
http://www.coag.gov.au/meetings/250604/index.htm
(accessed 24 November 2004).
-
Council of Australian Governments, Principles for the Regulation
of Ammonium Nitrate,
http://www.coag.gov.au/meetings/250604/attachments_d.pdf
(accessed 24 November 2004).
-
ibid.
-
ibid.
-
Peter Beattie, Ministerial Statement, Ammonium Nitrate ,
Queensland, Legislative Assembly, Hansard, 10 November
2004, pp. 3357 8.
-
A high consequence dangerous good has been defined by the United
Nations to include dangerous goods that have the potential for
misuse in a terrorist act resulting in mass casualties or mass
destruction. Rob Hulls, second reading speech, Dangerous Goods
Legislation (Amendment) Bill 2004, Victoria, Legislative Assembly,
Hansard, 16 September 2004, p. 564.
-
See Queensland Government, Department of Natural Resources and
Mines, Frequently Asked Questions about Security Sensitive Ammonium
Nitrate .
http://www.nrm.qld.gov.au/mines/explosives/pdf/faqs_about_ssan.pdf
(accessed 24 November 2004).
-
Section 17, ASIO Act.
-
An expression defined in section 35, ASIO Act.
-
Australian Security Intelligence Organisation, Annual Report
2003-2004, p. 29.
-
Section 40, ASIO Act. The ASIO Act defines a State to include
the ACT and the Northern Territory (section 4).
-
An exception is assessments connected with events designed as
special events by the Minister which can be furnished directly to a
State or Territory [paragraph 40(1)(b), ASIO Act].
-
See section 40, ASIO Act.
-
An adverse assessment is a recommendation that the person not be
granted the access proposed. A qualified assessment is not a
recommendation against access but provides information for the
agency to consider in decision-making. ASIO, op. cit, p. 30.
-
Sections 38 and 54, ASIO Act.
-
For a general discussion see Peter Prince, Communications
Legislation Amendment Bill (No. 2) 2003, Bills Digest No.
21, 2003-04. http://www.aph.gov.au/library/pubs/bd/2003-04/04bd021.pdf
(accessed 24 November 2004).
-
See Queensland Government, Department of Natural Resources and
Mines, Frequently Asked Questions about Security Sensitive Ammonium
Nitrate .
-
Explanatory Memorandum, p. 1.
-
This point was made by the Attorney-General see
Attorney-General, second reading speech, Australian Security
Intelligence Organisation Amendment Bill 2004, House of
Representatives, Hansard, 17 November 2004, p. 3.
-
Subsection 40(1) of the ASIO Act also requires security
assessments undertaken for State and Territory purposes to be
transmitted to the State or Territory via an intermediary
Commonwealth agency.
Jennifer Norberry
26 November 2004
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2004
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Parliamentary Library, 2004.
Back to top