Referral of the Bill
1.1
The Intelligence Services Amendment Bill 2018 (the Bill) was introduced into the House of Representatives by the Hon Paul Fletcher MP, Minister for Families and Social Services, on 29 November 2018.
1.2
In his Second Reading speech, the Minister said:
By 2004, drawing on three years practical experience immediately following the September 11 attacks, and also drawing on {the Australian Secret Intelligence Service’s (ASIS) acknowledged role in direct support to the Australian Defence Force after the September 11 attacks, the act was amended to allow ASIS officers, where authorised by the Minister for Foreign Affairs, to train in—and in certain circumstances use—weapons for self-defence.
Since the time of those amendments, successive governments have asked ASIS to do more in response to national security priorities and unfolding events, and to do so in new places and new circumstances unforeseen in 2001 or in 2004.
In the fifteen years since the last amendment related to ASIS's use of force, the world has indisputably become even more complex—and Australia has become more of an international terrorism and espionage target..
1.3
On 29 November 2018, Senator the Hon Marise Payne, Minister for Foreign Affairs referred the Bill to the Parliamentary Joint Committee on Intelligence and Security (the Committee) for inquiry and report.
1.4
The Committee agreed to undertake an inquiry into the Bill and provide Parliament with an advisory report.
Conduct of the inquiry
1.5
The Committee held a public hearing in Canberra on Monday, 3 December 2018. A list of witnesses appearing at the hearing is included at Appendix A. A transcript of the public hearing is included at Appendix B and is available on the Committee’s website. The Committee received one submission from Mr David Greene.
Report structure
1.6
This report consists of this chapter which provides a brief summary of the Bill and includes Committee comment and recommendations.
Rationale for the Bill
1.7
The Explanatory Memorandum to the Bill states that:
The Bill will improve and modernise the legislative framework that governs the use of force by the Australian Secret Intelligence Service (ASIS) to address key operational challenges and issues. The Bill will do this by amending the Intelligence Services Act 2001 (IS Act) to:
a. enable the Minister to specify additional persons outside Australia who may be protected by an ASIS staff member or agent; and
b. provide that an ASIS staff member or agent performing specified activities outside Australia will be able to use reasonable and necessary force in the performance of an ASIS function
Additional persons outside Australia who may be protected by an ASIS staff member or agent
1.8
Currently, Schedule 2 of the Intelligence Services Act 2001 (IS Act) strictly limits the scope of persons who may be protected by an ASIS staff member or agent acting in self-defence. This scope is currently limited to the individual ASIS staff member or agent themselves, another staff member or agent of ASIS, or a person from another approved authority who is cooperating with ASIS under s.13 of the IS Act.
1.9
The Explanatory Memorandum points to a situation where an ASIS staff member or agent undertaking an operational activity would not be permitted to use weapons or self-defence techniques for the protection of other persons who are not within the limited class of persons outlined above. The Explanatory Memorandum states that this would include
a person who was taken hostage by a criminal or terrorist group. Should an ASIS staff member engage in the use of a weapon or self-defence technique to protect persons who are not within Schedule 2, whilst their action may be permitted in accordance with the common law, that staff member and ASIS would still be in breach of the IS Act. For this reason, ASIS cannot at present lawfully train staff members and agents to ensure that they use weapons or self-defence techniques appropriately if such circumstances arise.
1.10
To account for and provide legal power covering the situation outlined above, Schedule 2 provides that the Minister may, at his or her discretion, give specific approval for ASIS staff members or agents to undertake relevant training or to be provided with a weapon for the purpose of protecting a specified person or class of persons other than those currently prescribed in Schedule 2.
Provide that an ASIS staff member or agent performing specified activities outside Australia will be able to use reasonable and necessary force in the performance of an ASIS function
1.11
Currently, section 6(4) of the IS Act provides a general prohibition that in performing its functions, ASIS must not plan for, or undertake, activities that involve:
paramilitary activities; or
violence against the person; or
by staff members or agents of ASIS.
1.12
Schedule 1 inserts a new subsection (5A) providing that the current limitation on ASIS flowing from subsection 6(4) of the IS Act does not prevent the provision of weapons or training in the use of force, or the use of force or threats of force against a person in the course of activities undertaken by ASIS outside Australia in accordance with purposes and limitations described in a new Schedule 3.
1.13
Schedule 3 is a new Schedule to the IS Act which adds new clauses permitting the provision of weapons or training in the use of force (including the use of a weapon) to a person who is a staff member or agent of ASIS for the purposes of conducting approved specified activities outside Australia. The clauses also permit the use of force or the threat of the use of force.
1.14
The Explanatory Memorandum states that
the Government may wish to direct ASIS to undertake activities in which the use of reasonable force, other than in self-defence, would be necessary in order to prevent or mitigate circumstances where there was a significant risk to a person’s safety, a significant threat to Australia’s national security, or a significant risk to the operational security of ASIS from interference by a foreign person or entity.
1.15
The Explanatory Memorandum points out that
such use of force must be reasonable, necessary and proportionate. The guidelines which must be issued by the Director-General on the use of force provide further elaboration on these requirements.
Ministerial approval
1.16
Section 6(1)(e) of the IS Act lists as one of the functions of ASIS as being:
to undertake such other activities as the responsible Minister directs relating to the capabilities, intentions or activities of people or organisations outside Australia.
1.17
Section 6(2) of the IS Act requires that the Minister may direct ASIS to undertake activities referred to in paragraph 6(1)(e) only if
the Minister has consulted other relevant Ministers,
is satisfied that there are satisfactory arrangements in place to ensure that in carrying out the direction, nothing will be done beyond what is necessary having regard to the purposes for which the direction is given, and
is satisfied that there are satisfactory arrangements in place to ensure the nature and consequences of the acts done in carrying out the direction will be reasonable with regard to the purposes of the direction.
1.18
The Director-General of ASIS will only be able to approve operational activities overseas enabled by the proposed Schedule 3 of the Bill (‘use of reasonable force other than in self-defence’) pursuant to a direction from the Foreign Minister issued under s.6(1)(e) of the IS Act . The Minister
must not give an approval unless they have consulted with the Prime Minister, the Attorney-General, the Defence Minister and any other Minister who has responsibility for a matter that is likely to be significantly affected by an activity that is to be approved.
Oversight by the Inspector General of Intelligence and Security
1.19
The Bill deals with oversight of the new powers by the Inspector General of Intelligence and Security (IGIS) in relation to Schedule 2 in the following ways:
Item 10 — Subclause 1(7) of Schedule 2 reflects the current practice of providing the Inspector General of Intelligence and Security with a copy of any changes to the ASIS Guidelines on matters related to the use of weapons and self-defence techniques,
Item 11 — After subclause 1(7) of Schedule 2 inserts a new oversight mechanism whereby the Inspector General of Intelligence and Security must brief the Parliamentary Committee on Intelligence and Security on the content and effect of the ASIS Guidelines on matters related to the use of weapons and self-defence techniques if requested by the Committee to do so, or if the Guidelines change, and
Item 12 — Clause 3 of Schedule 2 clarifies the requirement that the Director-General of ASIS must give a report to the Inspector General of Intelligence and Security if a weapon is used by a staff member or agent of ASIS against a person and applies to the use of a weapon or self-defence technique in protection of a specified person or class of person added by this Bill.
1.20
In addition, in relation to Schedule 3 the Explanatory Memorandum states that
the Bill requires that guidelines be issued for Schedule 3 activities relating to the use of force (including use of weapons) against a person outside Australia and the threats of the use of force.
1.21
These Guidelines must be provided to the IGIS who must brief the Parliamentary Joint Committee of Intelligence and Security if requested by the Committee or if the guidelines change. The Explanatory Memorandum points out that this
is intended to provide an additional layer of external scrutiny to the content and scope of guidance to ASIS staff members and agents to ensure that such rules for the use of force remain appropriate.
1.22
Similar to requirements in Schedule 2
any use of force or threat of the use of force by an ASIS staff member or agent of ASIS against a person in the course of conducting specified activities under Schedule 3 must be reported in writing to the Inspector General of Intelligence and Security as soon as practicable.
Committee Comment
1.23
The Bill extends powers available to ASIS staff and agents to use weapons, self-defence techniques and reasonable force. These are not powers that the Parliament provides lightly and the Committee sees its role in reviewing the provision of such powers as one of its most important functions.
1.24
The Committee notes the extensive consultation process that ASIS undertook with the IGIS in the drafting of the Bill.
1.25
The Committee, in judging the legitimacy reasonableness and transparency — including appropriate oversight — of the Bill has had regard to the:
comprehensive consultation and decision making process that must be undertaken by the Minister before authorising the use of these powers,
Guidelines surrounding the use of these powers, and
oversight provided by referral of these Guidelines to the IGIS and this Committee.
1.26
The Committee notes that the oversight requirements in the Bill replicate existing oversight requirements and provide an appropriate level of transparency recognising the necessary sensitivities of ASIS activities.
1.27
The Committee appreciates the non-partisan and consultative manner in which this Bill has been dealt and the respect for the parliament and the importance of adequate oversight requirements. These provide confidence to the Committee, the parliament, and the public in regard to the additional powers, which has been demonstrated. Such an approach is an example of how national security legislation should be pursued.
1.28
Overall, the Committee is satisfied with the provisions contained in the Bill and recommends that the Intelligence Services Amendment Bill 2018 be passed.
1.29
The Committee recommends that the Intelligence Services Amendment Bill 2018 be passed.
Mr Andrew Hastie MP
Chair
December 2018