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Wednesday, 13 March 2013
Page: 1843


Mr MARLES (CorioParliamentary Secretary for Pacific Island Affairs and Parliamentary Secretary for Foreign Affairs) (09:31): I move:

That this bill be now read a second time.

I rise to introduce the Foreign Affairs Portfolio Miscellaneous Measures Bill 2013. This bill amends two acts, the Intelligence Services Act 2001 and the Work Health Safety Act 2011.

The staff of ASIS

The amendments to the Intelligence Services Act will create a mechanism for Australian Secret Intelligence Service employees to move to an Australian Public Service agency in the same way that Australian Public Service employees can voluntarily transfer from one Australian Public Service agency to another under section 26 of the Public Service Act 1999.

These amendments will better facilitate the protection of an ASIS employee's identity as an ASIS officer and broaden the mobility opportunities for ASIS employees in the Australian Public Service.

ASIS employees are not Australian public servants. Instead, they are Commonwealth officers employed under the Intelligence Services Act.

ASIS officers perform difficult and, at times, dangerous tasks in distant locations. Information about their work and their identities is closely held in order to protect them, their activities and the people they interact with. Indeed, it is an offence under section 41 of the Intelligence Services Act to identify a staff member of ASIS, other than in a few prescribed circumstances.

In order to protect their identity ASIS officers are typically identified as public servants. However, this may have unintended consequences when an ASIS officer seeks to move to a public service agency as there is no obvious reason why a person identified as a public servant would not transfer under the Public Service Act like any other public servant.

The amendments include mechanisms by which the Public Service Commissioner and the Director-General of ASIS will agree on how the ASIS classifications correspond to the APS classifications. This will ensure that ASIS levels have an equivalent Australian Public Service level for operation of this new provision and the other related aspects of the Public Service Act—for example, the special requirements in respect of merit that apply in relation to promotion.

This proposal does not detract from the Australian Public Service merit principle in engagement. Under section 35 of the Intelligence Services Act the Director-General must adopt the principles of the Public Service Act in relation to employees of ASIS to the extent to which the Director-General considers that they are consistent with the effective performance of ASIS's functions. In accordance with this obligation, ASIS's recruitment and promotion policies are based on merit.

Work health and s afety

This bill also contains amendments to the Work Health and Safety Act 2011. These amendments will enable the Director-General of ASIS, with the approval of the minister responsible for the Work Health and Safety Act, to make a declaration that specified provisions of the Work Health and Safety Actdo not apply, or apply subject to modifications, in relation to persons carrying out work for the Director-General.

These amendments clarify rather than amend existing work health and safety policy with regard to national security. The amendments make clear that in administering ASIS and in the exercise of the power to make a declaration the Director-General must take into account the need to promote the objects of the Work Health and Safety Act to the greatest extent consistent with the maintenance of Australia's national security.

The Work Health and Safety Act already recognises that national security may not always be compatible with full compliance with the Work Health and Safety Act and the need to ensure that national security is not prejudiced. However, currently there is no mechanism to modify the operation of the act to people who perform work for the Director-General of ASIS.

This is in contrast to the position of the Australian Security Intelligence Organisation and the Australian Defence Force. Both of these agencies have mechanisms for modification of the Work Health and Safety Act under sections 12C and 12D of the act, respectively.

The environments in which ASIS operates overseas are very similar to the environments in which ASIO and the ADF operate.

In these environments the requirements of national security may not always be compatible with full compliance with Australian work health and safety obligations. Indeed, full compliance could in some circumstances place people who work for the Director-General of ASIS at risk and prejudice national security.

Therefore, there is a similar need for the Work Health and Safety Act to be modified in its application to ASIS in appropriate circumstances. Any modification will only occur with the agreement of the minister responsible for the Work Health and Safety Act.

I commend this bill to the House.

Debate adjourned.