Introductory Speech: Intelligence Services Amendment Bill 2018

ASIS's operational successes are not heralded openly, and recognition of the individual achievements of the women and men who make up its ranks are necessarily discreet.

Nor is it possible to be completely candid about the circumstances in which those achievements come about, including the specific hazards officers have overcome in the course of their duties.

Nevertheless, I can say to the House today that much of ASIS's operational work overseas is necessarily conducted in hazardous environments, including in war-like zones and other high-risk environments.

This reflects considerable change in the operating environments for ASIS officers since the original passage of the Intelligence Services Act in 2001.

The original form of the act limited the ability of ASIS officers to act even in their own self-defence, reflecting the findings of the second Hope royal commission in 1984.

By 2004, drawing on three years practical experience immediately following the September 11 attacks, and also drawing on ASIS's 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.

As a consequence, this bill seeks to amend the Intelligence Services Act to:

• enable ASIS to better protect its officers and other persons when operating in hazardous environments overseas, and
• better protect Australia's national security interests, especially in counterterrorism operations, overseas.

 

Protection of Additional Persons

The first amendment proposed would enable the Minister for Foreign Affairs to specify additional persons outside Australia who may be protected by an ASIS staff member or agent under schedule 2 of the act.

This would be at ministerial discretion and could potentially include a range of individuals or categories of persons as appropriate to each context.

Currently, schedule 2 permits the use of weapons by ASIS staff members or agents for self-defence, to defend other ASIS staff members or agents or persons cooperating with ASIS under division 2 of the act, or for training purposes.

The proposed amendment will mean that ASIS officers will be able to use weapons to protect a broader range of persons.

This will address a legal uncertainty identified by the Australian Government Solicitor (AGS) in the ability of an ASIS staff member to be compliant with the act when defending certain other persons including bystanders, and to train for the use of force in those circumstances.

 

Use of Reasonable Force

The second amendment proposed will enable the use of reasonable force by an ASIS staff member or agent in undertaking specified activities outside Australia in the proper performance of an ASIS function.

It is important to note that this does not solely refer to the use of firearms.

This amendment will address several grey areas in the use of force under the Intelligence Services Act, particularly the use of reasonable and limited force to restrain, detain or move an individual who may pose a risk of the compromise of an operation, or where a staff member anticipates a possible safety risk.

The ability to use force will only apply where there is a significant risk to the safety of a person (this would likely, but would not necessarily need to be, an Australian person), or where there was a significant threat to security or significant risk to the operational security of ASIS.

This ability to use force where reasonably necessary for the performance of the specified activity will be a change for ASIS officers given that, as I have noted, their ability to use force is currently constrained to situations of self-defence.

 

Oversight

Before directing a specified activity, the Minister for Foreign Affairs will be required to consult with the Prime Minister, the Attorney-General, the Minister for Defence and other relevant ministers.

The Minister for Foreign Affairs would also need to be satisfied that arrangements are in place to ensure any actions taken by ASIS officers are necessary and reasonable, having regard to the purposes for which the direction is given.

It is important to note that any use of force will be proportionate—it will be the minimum reasonable force given the circumstances.

While lethal force may already be used in self-defence as a last resort to protect an officer or another protected person from serious harm or death, it is explicitly provided that in undertaking such an activity ASIS staff members or agents will not, and must not, engage in torture; cruel, inhumane or degrading treatment; sexual assault; or unlawful killings.

An example of the use of force under these circumstances could include the keeping safe of an uncooperative person from a source of immediate danger during an ASIS operation, including by removing them from the source of immediate danger, even if they are in shock or paralysed with fear.

Like the existing ability to use weapons for self-defence, the amendments for the use of force will be a ministerially authorised exception to the general prohibitions in ASIS activities against the use of violence against the person.

Oversight arrangements for these amendments will be critical, and will include key roles played by the Inspector-General of Intelligence and Security (IGIS) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS). Importantly, the inspector-general and her office were consulted in the development of this bill.

Among other independent accountability and authorisation methods, the inspector-general will need to be provided with copies of the ministerial approvals to undertake these specified activities and copies of ASIS's guidelines on the use of weapons and use of force.

Additionally, the inspector-general, on receipt of the guidelines on the use of weapons and use of force, or changes to them, would be required to offer to brief the Parliamentary Joint Committee on Intelligence and Security on the content and the effect of the guidelines or the changes.

This would be consistent with the remit of the Parliamentary Joint Committee on Intelligence and Security in matters of ASIS's administration and would provide a means for the committee to be satisfied that there are appropriate settings for the use of weapons and use of force.

 

Additional accountability

There is an additional accountability measure I can advise to the House. The 2017 Independent Intelligence Review made a number of recommendations, including recommendation 19: to delegate to the Director-General of ASIS certain authorisations, currently exercised by the Minister for Foreign Affairs, in relation to the training of ASIS officers in the use of weapons, and the deployment of such weapons.

I make it clear that this recommendation will not be implemented by the government.

The Minister for Foreign Affairs will retain the authorisation power in relation to the training of ASIS officers in the use of weapons, and the deployment of such weapons.

The amendments before the House instead underline the continuing importance of the role of the Minister for Foreign Affairs in authorising the use of weapons by ASIS.

If this bill is passed, the conduct of a specified activity by ASIS or its agents would require that the Minister for Foreign Affairs consult with the Attorney-General before authorising such an activity, and this provides an additional opportunity for legal concerns to be raised, if any. The Minister for Foreign Affairs will also be required to consult with the Prime Minister and any other relevant minister.

If this bill becomes law, the independent Inspector-General of Intelligence and Security will oversee compliance with the bill to ensure that ASIS's conduct is consistent with the law and with the Australian public's expectations of propriety.

 

Addressing misconceptions

It is perhaps unavoidable that having an intelligence agency whose core task is to undertake covert activities gives rise to myths and misconceptions about its activities and the rules under which it operates. This is despite the advent of the Intelligence Services Act itself, and its clear articulation of ASIS's functions and oversight arrangements.

There is, perhaps, a risk that the amendments made by this bill could precipitate a similar set of myths and misconceptions.

It is therefore important to articulate what these amendments do not allow in addition to articulating what they do allow.

The first such misunderstanding may be a confusion between ASIS's modern mandate and authorisations, compared to ASIS's pre-1984 'special operations' function, which was ended after a recommendation of the second Hope royal commission.

These proposed modern measures are in no way the same as ASIS's pre-1984 role: there is no need for ASIS to conduct special operations. Australia has an existing special forces capability within the Australian Defence Force.

While the amendments are directed towards self-defence, it is possible that some members of the public may equate this with para-military offensive action. Nothing could be further from reality.

ASIS does not have, nor is it seeking, an offensive armed capability.

Lethal force may currently only be used as a last resort to protect an ASIS officer or protected person from serious harm or death. This will not change.

The amendments allow this self-defence provision to be extended to those not directly part of an ASIS operational team, such as hostages being rescued, or bystanders who need to be kept safe from a source of immediate danger.

Further, to avoid any doubt, the amendments make explicit by law that which has always been understood through the action of other legislation and conventions: ASIS staff members or agents are specifically prohibited from engaging in torture; cruel, inhumane or degrading treatment; sexual assault; or unlawful killings.

 

Current Challenges

ASIS has trained and deployed with weapons in certain situations since 2004. But, as I have already noted, challenges to Australia's national security require ASIS to operate more frequently in hazardous circumstances overseas—especially against increasingly sophisticated and ruthless armed terrorist groups.

The current provisions of the act are leading to unintended and unsafe situations for ASIS officers, and others.

For example, under the current act, an armed ASIS officer undertaking an operation overseas may only use a weapon in defence of another officer, agent or a limited category of person co-operating with ASIS. The act currently prohibits an ASIS officer from using a weapon in defence of an innocent person who is threatened by a terrorist or kidnapper, even where this threat is present in front of the ASIS officer.

The proposed amendments will allow an ASIS officer confronted with this situation to act appropriately in defence of the innocent person.

Nevertheless, these amendments do not affect the existing prohibition in section 6(4) of the act that prevents ASIS officers from planning or undertaking paramilitary activities.

 

The need for action

Members will be aware that another recommendation of the 2017 Independent Intelligence Review was for a comprehensive review of national security legislation to be undertaken. Such a review has already been established under the leadership of eminent retired public servant, Mr Dennis Richardson AO.

I advise the House that the amendments in this bill do not pre-empt the outcomes of Mr Richardson's review. That review is not scheduled to complete its final report until the end of 2019.

Enhancing the protection of ASIS officers conducting operations in the name of Australia, including rectifying gaps and shortcomings, is required in the near term.

 

Conclusion

In conclusion, each day the women and men of ASIS go about their work to protect and advance the Australian national interest. They are often called upon to do so covertly, at considerable personal risk and hazard, and in environments of significant danger.

As the world becomes more complex, it is clear that the legislation that governs ASIS operations also needs to evolve to ensure that staff members, and the agents who assist them, have the appropriate capacity for self-defence, as authorised by the Minister for Foreign Affairs.

I commend the bill to the House.

 

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Link to video here: https://youtu.be/GEtmleSQE1M