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Intelligence Services Amendment Bill 2004

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2002 - 2003

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

INTELLIGENCE SERVICES AMENDMENT BILL 2003

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Honourable Alexander Downer MP, Minister for Foreign Affairs)

 

 

 

 

 

 

 

INTELLIGENCE SERVICES AMENDMENT BILL 2003

 

GENERAL OUTLINE

 

The purpose of the Intelligence Services Amendment Bill 2003 is to amend the Intelligence Services Act 2001 (the Act) to allow the Australian Secret Intelligence Service (ASIS) to undertake its functions more effectively, while maintaining appropriate legislative limitations on the functions of the agency.

The Act had its genesis in the recommendations of the judicial inquiry into ASIS, conducted by the Honourable Gordon J. Samuels AC and Mr Michael H. Codd AC, which reported to Government on 31 March 1995.  In the Inquiry’s Public Report the Commissioners recommended placing ASIS on a statutory basis, expanding the role of the Inspector-General of Intelligence and Security (IGIS) through the conduct of retrospective audits of ASIS’s operations and the establishment of a Parliamentary Committee to oversee aspects of ASIS and the Australian Security Intelligence Organisation (ASIO).

These recommendations were adopted after consideration, and the Act was passed and came into effect on 29 October 2001, thereby placing ASIS on a statutory basis.  The legislation also applies to the Defence Signals Directorate (DSD). Both ASIS and DSD have an overseas focus in advancing Australia’s national security, foreign relations and national economic well being.  

The Act outlines the functions of the agencies and the limitations placed upon them.  It also provides limited immunities to the agencies where the unintended consequences of Australian laws inhibit the proper conduct of their functions.  The Act establishes the Parliamentary Joint Committee on ASIO, ASIS and DSD, (the Committee) to oversee expenditure and administration.  The Committee was appointed during the 40 th Parliament and first met in March 2002.

Since the commencement of the Act in 2001, terrorist activities and the threat of proliferation of weapons of mass destruction have contributed to fundamental changes in the environments in which ASIS must undertake its functions.  It is in this context that this Bill has been developed.

To operate effectively in these environments ASIS must be able to protect its staff members and agents.  The current limitations of subsection 6(4) of the Act prevent ASIS from taking adequate steps to do this.  It is not possible under the Act in its current form for an ASIS staff member or agent to be given close personal protection as part of an activity necessary for the proper performance of the agency’s functions, and it is not possible for ASIS to provide a weapon to an ASIS officer or agent for the purposes of self-defence.  The Bill would allow ASIS to accept protection from other agencies, including armed protection to ASIS’s staff members and agents.  It would also allow ASIS’s staff members and agents to defend themselves more adequately, including through training in self-defence and the provision of weapons solely for the purposes of defence outside Australia, under strict conditions which include a Ministerial approval regime. 

It is also imperative that ASIS be able to cooperate closely with other agencies to ensure a coordinated approach to the Government’s objective of protecting Australia against the threat of international terrorism and trans-national crime.

The Bill would allow ASIS to work more closely with agencies which might be able to use violence in the legitimate performance of their functions, but would not alter the prohibition on ASIS undertaking activities involving violence in its own right.

Importantly, the legality and propriety of ASIS’s activities will continue to be overseen by the office of the IGIS.  The IGIS provides independent assurance to the Government, Parliament and the people of Australia that ASIS conducts its activities within the law, behaves with propriety, complies with ministerial guidelines and directives and has regard to human rights.  This oversight by the IGIS complements an extensive authorisation regime associated with the proper conduct of ASIS’s functions, and would include oversight of approvals of provision of weapons and training in self-defence to ASIS staff members or agents for the purposes of defence.

 

FINANCIAL IMPACT STATEMENT

 

It is not expected that the Bill will have a direct financial impact.

 

 



NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clause 1: Short Title

 

Clause 1 is a formal item specifying the short title of the Bill.

 

Clause 2: Commencement

 

The Bill will commence on the day on which it receives Royal Assent.

 

Clause 3: Schedules

 

This clause is the formal enabling provision for the Bill.  It provides that each Act is amended in accordance with the applicable items of the Schedule.  In this Bill, the Intelligence Services Act 2001 is being amended.

 

The clause also provides that any other item in a schedule has effect according to its terms.  This is a standard enabling clause for items in amending legislation.

 

Schedule 1- Functions of ASIS

 

Item 1

 

This item simply moves an existing note which draws attention to the fact that a copy of a direction issued under paragraph 6(1)(e) (which allows the Government to modify ASIS’s functional activities, under very limited conditions, should the need arise) must be given to the IGIS as soon as possible after it is given to ASIS.

 

The note currently exists as note 2 after the original subsection 6(4) of the Act.

 

Item 2

 

This item repeals subsection 6(4) and inserts new subsections after subsection 6(3).  The purpose of these new subsections is to allow ASIS to undertake its existing functions more effectively, while maintaining appropriate legislative limitations. 

 

Proposed subsection 6(4)

 

The original subsection 6(4) states that in performing its functions, ASIS must not plan for, or undertake activities which involve: paramilitary activities; or activities involving violence against the person; or the use of weapons.

Proposed subsection 6(4) maintains the wording of the original subsection 6(4), but adds “by staff members or agents of ASIS”.  The purpose of the proposed subsection is to allow ASIS to be involved in the planning for, and undertaking of those activities by other agencies.  It maintains the prohibition on ASIS, in performing its functions, undertaking activities that involve paramilitary activities, violence against the person or the use of weapons in ASIS’s own right.

 

Note 1 draws attention to the fact that the subsection does not prevent ASIS being involved in those activities carried out by other organisations, as long as ASIS staff members and agents do not themselves undertake those activities.

 

Note 2 draws attention to other limits on the agency’s functions and activities.

 

Proposed subsection 6(5)

 

Proposed subsection 6(5) functions to allow the provision of weapons, training in the use of weapons or self-defence techniques, or the use of weapons or self-defence techniques, in fixed circumstances outlined in the proposed Schedule 2 which is in item 3 of the Bill. (The Schedule in item 3 limits provision and use of weapons to the purposes of defence and provides for a Ministerial approval regime and oversight framework for training in, and use of, self-defence techniques, the provision of weapons, training in the use of weapons and the use of weapons.)

 

Proposed subsection 6(6)

 

Proposed subsection 6(6) functions to limit the provision of weapons, training in the use of weapons and in self-defence techniques only to those circumstances provided for in the schedule in Schedule 2 which is in item 3 of the Bill.

 

Item 3

 

This item inserts proposed Schedule 2 at the end of the Act.  The purpose of the proposed Schedule is to limit the provision of weapons, and training in, and use of, weapons and self-defence techniques, to a fixed set of circumstances.  The proposed Schedule also confirms that State and Territory laws will not require a staff member or agent of ASIS to obtain or have a licence where that person is acting in accordance with clause 1, or to register any weapon provided in accordance with clause 1.

 

 

 

 

 

Schedule 2 - Limits on provision of weapons, training etc.

 

Clause 1 - Provision of weapons, training etc.

 

Proposed sub-clause 1(1) limits the provision of a weapon, and training in the use of a weapon or self-defence techniques to a person who is a staff member or agent of ASIS, for the purposes of protecting themselves, protecting another staff member or agent of ASIS, protecting a person cooperating with ASIS in accordance with section 13* of the Act, or to provide training to staff members or agents of ASIS.  It also specifies that a weapon or training must be provided in accordance with the Ministerial approval given for the purpose and required by sub-clause 3 of item 3. 

 

*Section 13 of the Act provides that subject to any arrangements made or directions given by the responsible Minister, ASIS may cooperate with Commonwealth authorities; State authorities; and authorities of other countries approved by the Minister as being capable of assisting ASIS in the performance of its functions; so far as is necessary for ASIS to perform its functions, or so far as facilitates the performance by ASIS of its functions.

 

 

Proposed sub-clause 1(2) limits the use of a weapon or self-defence techniques to the purposes specified in proposed sub-clause 1(1).  It makes explicit that protection activities can occur only outside Australia. Training activities must be in accordance with proposed sub-clause 1(1).  It also functions to ensure that weapons or self-defence techniques can only be used once guidelines on matters relating to the use of weapons and self-defence techniques have been issued by the Director-General of ASIS in accordance with proposed sub-clause 1(6).  Proposed sub-clause 1(2) also states that weapons and techniques must be used in compliance with those guidelines.

 

Proposed sub-clause 1(3) specifies that the Minister may give written approval for the provision of a weapon, or training in the use of a weapon or self-defence techniques, to a specified staff member or agent of ASIS, or the holder of a specified position in ASIS.

 

Proposed sub-clause 1(4) specifies that the Minister’s written approval must state the purpose for the provision of the weapon or training, and any conditions that must be complied with in relation to the provision of a weapon or training.

 

Proposed sub-clause 1(5) specifies that a copy of the Minister’s written approval must be given to the IGIS by the Minister as soon as practicable after the Minister gives the approval to the Director-General.

 

 

Proposed sub-clause 1(6) specifies that the Director-General of ASIS must issue guidelines for the purposes of this Schedule on matters relating to the use of weapons, and self-defence techniques.

 

Proposed sub-clause 1(7) specifies that a copy of the Director-General’s guidelines referred to in proposed sub-clause 1(6), must be given to the IGIS by the Director-General as soon as is practicable following the making of the guidelines.

 

Clause 2 - Application of certain State and Territory laws

 

This proposed clause exempts ASIS staff members and agents from requirements under a State or Territory law, which would require a staff member or agent to obtain a licence or permission for acting in accordance with clause 1, or to register any weapon provided in accordance with clause 1.  The purpose of this proposed clause is to make it clear that State and Territory laws do not regulate these activities.  This is particularly important to ensure that State and Territory laws do not apply so as to require inappropriate communication of information about ASIS and inappropriate publication of the identity of ASIS staff members or agents.

 

Section 39 of the Act provides that the unauthorised communication of information relating to ASIS is an offence under specified circumstances.  Section 41 of the Act provides that the unauthorised publication of the identity of an ASIS staff member or agent is an offence under specified circumstances.

 

The Bill contains extensive safeguards to ensure that appropriate standards are observed, including the guidelines to be issued by the Director-General under proposed sub-clause 1(6).  The exemption does not allow an ASIS staff member or agent in the performance of their functions to use a weapon or self-defence techniques for the purposes of protection inside Australia.