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Australian Security Intelligence Organisation Amendment Bill 2004

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2004

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT BILL 2004

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)



AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT BILL 2004

 

GENERAL OUTLINE

 

The Australian Security Intelligence Organisation Amendment Bill 2004 (the Bill) amends the Australian Security Intelligence Organisation Act 1979 (the Act) to expand and clarify the ability of the Australian Security Intelligence Organisation (ASIO) to furnish security assessments. 

 

The need for these amendments has arisen in the context of the regulation of ammonium nitrate.  In December 2002, the Council of Australian Governments (COAG) agreed to a national review of the regulation, reporting and security around the storage, sale and handling of hazardous materials, including ammonium nitrate.  Ammonium nitrate was given priority as a hazardous substance because of its history of use by terrorists and its ready availability to the general public. 

 

On 25 June 2004 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. 

 

The licensing regime requires ASIO to furnish security assessments for the States and Territories.  The existing provisions of the ASIO Act restrict ASIO’s ability to provide security assessments under the licensing regime.  ASIO can currently furnish security assessments to assist the States and Territories in controlling access to the places where ammonium nitrate is stored. (Section 35 of the Act covers access by a person to any information or place where the access is controlled on security grounds)  However, controlling ammonium nitrate effectively requires more than controlling access to the place of storage.  It requires controlling the ability to perform a range of activities in relation to or involving ammonium nitrate, 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 that ability is controlled or limited on security grounds.  The Bill amends the Act to underpin better ASIO’s power to furnish assessments in relation to ammonium nitrate. 

 

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 that may arise in the future, for example other hazardous materials to which access is controlled or limited on security grounds.

 

Financial impact

 

The Bill is not expected to have a direct financial impact.



NOTES ON CLAUSES

 

Clause 1: Short title

 

This clause is a formal provision stating the short title of the Act.

 

Clause 2: Commencement

 

This clause states that the Act commences on Royal Assent.

 

Clause 3: Schedule(s)

 

This clause provides that each Act specified in a Schedule to the Act is amended or repealed as set out in the Schedule concerned and any other item in a Schedule has effect according to its terms.



Schedule 1 - Amendment of the Australian Security Intelligence Organisation Act 1979

 

This Schedule sets out the amendments to be made to the Act.

 

Australian Security Intelligence Organisation Act 1979

 

Item 1: Section 35 (paragraph (a) of the definition of prescribed administrative action )

 

This item repeals and substitutes paragraph 35(a) of the Act.  The effect of this amendment is to expand the definition of prescribed administrative action to include a person’s ability to perform an activity in relation to, or involving, a thing, other than information or a place, if the person’s ability to conduct that activity is controlled or limited on security grounds.

 

Whilst the Act currently defines prescribed administrative action with reference to the broad terms of ‘information’ and ‘place’, this definition is 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 and 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.

 

The term ‘thing (other than information or a place)’ is used because it is important that there be appropriate flexibility within the Act, particularly in a changing security environment.  This amendment is consistent with the approach in the rest of the definition of prescribed administrative action .  As with ‘information’ and ‘place’, the term ‘thing (other than information or a place)’ is limited by the rest of the definition, which requires a person’s ability to perform an activity in relation to or involving a thing to be controlled or limited on security grounds.

 

Item 2: Subsection 36(1)

 

This item makes a technical correction to remove a reference to subsection (1) where the section no longer contains any subsections.

 

Item 3: Subsection 39(2)

 

This item repeals and substitutes subsection 39(2) of the Act.  It is consequential on item 1.  The effect of this amendment is to expand the types of temporary action that a Commonwealth agency may take as a matter of urgency where, on the basis of a preliminary communication by ASIO, the agency is satisfied that such action is required for security reasons pending the furnishing of an assessment by ASIO.  Specifically, the Bill enables a Commonwealth agency to take action in these circumstances to prevent a person from performing an activity in relation to, or involving, a thing, other than information or a place, if the person’s ability to perform that activity is controlled or limited on security grounds.  Depending on the thing involved, such activities may include purchasing, supplying, importing, exporting, possessing, handling, using, storing, guarding, transporting, manufacturing, disposing and any other activity in relation to, or involving, a thing.

 

Item 4: Subsection 61(1)

 

This item makes a technical correction to remove a reference to subsection (1) where the section no longer contains any subsections.