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Wednesday, 15 October 2003
Page: 21403


Mr DOWNER (Minister for Foreign Affairs) (9:01 AM) —I move:

That this bill be now read a second time.

The Intelligence Services Amendment Bill 2003 seeks to amend the Intelligence Services Act 2001 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.

In 2001, I introduced to the House the Intelligence Services Bill 2001. It represented an historic step forward in enhancing the accountability of particular agencies dealing with intelligence and security matters.

The Intelligence Services Act 2001 relates to three agencies within the Australian intelligence community—ASIS, the Defence Signals Directorate (DSD) and the Australian Security Intelligence Organisation (ASIO).

The act placed ASIS on a statutory footing for the first time and details its functions, lines of authority and accountability, including under extensive oversight mechanisms including through the establishment of the Parliamentary Joint Committee on ASIO, ASIS and DSD.

The act has provided increased assurance to the public in regard to the control and conduct of these agencies. Its successful first two years of operation vindicates the watershed decision by this government to bring it forward.

The passing into law of the act came at a crucial time, with the growing threats from terrorism and proliferation of weapons of mass destruction making the already critically important work of the intelligence agencies even more necessary in a global security environment undergoing fundamental change.

More than ever, Australia has needed quality intelligence to protect its interests, and competent and effective intelligence agencies to collect and deliver that intelligence, and to work closely with other agencies in the fight against terrorism and other transnational crime.

ASIS is the only agency which will be affected by the proposed amendment.

ASIS is highly focused on its core function, to protect and promote Australia's vital interests through the provision of unique foreign intelligence services as directed by government.

In my 7½ years as foreign minister I have found the intelligence it provides to be invaluable.

In the face of complex intelligence challenges since the act came into force in 2001, ASIS has maintained and enhanced its performance of its functions. Its work is essential in developing our approach to key foreign relations and national security issues, and in conjunction with the work of ASIO, DSD and other intelligence and security agencies, goes to the heart of the protection and promotion of Australia's national interests.

ASIS is a cost effective organisation and it is responsive to Australia's needs. Its continued high-level performance will be a necessary part of the whole-of-government effort required to combat terrorism and the other intelligence and security challenges which confront us.

In placing ASIS on a statutory footing, parliament gave ASIS the necessary authority to protect the secrecy of its information and the identity of its staff members. It also established a framework within which ASIS must operate, detailing arrangements for ministerial control and extensive accountability and oversight mechanisms, which work in conjunction with the oversight of the Office of the Inspector-General of Intelligence and Security.

The act outlines the functions of ASIS. Those functions are: to obtain and communicate intelligence about the capabilities, intentions or activities of people or organisations outside Australia in accordance with the government requirements; to conduct counterintelligence activities to maintain its own security, and that of Australia, in conjunction with other relevant Australian agencies; and to liaise with other intelligence or security services of other authorities of other countries. The act also provides the government of the day with the ability to direct ASIS to perform other strictly defined tasks.

ASIS's functions under the act would not be changed by this bill.

At the time the act commenced operation, it was expressly stated that ASIS was not to conduct paramilitary activities, and in the planning and performance of its functions was not allowed to undertake activities involving violence against the person or the use of weapons.

Since that time, however, the aftermath of the tragic events of 11 September 2001, and the Bali bombing on 12 October 2002, have contributed to a fundamental change in the environments in which ASIS must work. These changes could not have been predicted at the time the act was prepared. As a result, this amendment bill is now required to allow ASIS to provide more adequately for the protection of its staff members and agents, and to enable it to work more closely with other agencies. It is important to note, however, the bill retains the restraint on ASIS undertaking in its own right activities involving the use of force, including use of weapons, other than for the limited purposes of protection. ASIS will continue to conduct its activities in a non-violent way.

ASIS is presently empowered to cooperate with Commonwealth, and state authorities, and foreign authorities with my approval as responsible minister, in order to perform its functions or to facilitate the performance of its functions.

Given the requirement to have a coordinated whole-of-government, regional and global response to terrorism and other transnational crime, this cooperation is essential. Currently the act can prevent the agency from effectively cooperating with other authorities who might use force as a legitimate part of their functions. The amendment addresses this issue.

That is not to say the agency should itself be able to use force as part of its functions. The amendment would retain the limitation on ASIS itself initiating or carrying out activities involving paramilitary activities, violence against the person or the use of weapons. It would only allow ASIS to be involved in the planning or undertaking of such activities legitimately carried out by other organisations, provided ASIS's staff members and agents did not themselves undertake those activities.

This would, for example, allow ASIS to provide operational advice or support for a legitimate activity which might involve the use of force. The actual use of force being planned for, however, could not be carried out by ASIS personnel.

The bill does not change the requirement that for ASIS to cooperate with a foreign organisation, there is first a need for a written approval from me as the responsible minister. That approval is available for scrutiny of the Inspector-General of Intelligence and Security.

The environments in which ASIS must work, and the issues on which it must work, have, in some cases made working for ASIS far more dangerous in the last two years. Sending ASIS personnel into situations without adequate protection is a problem ASIS has faced, and may face more frequently until the bill is passed into law.

Importantly, the bill provides a mechanism to allow for the protection of ASIS personnel in the conduct of their legitimate functions under the act. The bill would allow for ASIS staff members and agents to be provided with close personal protection by a cooperating agency, when conducting activities as part of their ASIS function.

The bill would also allow an ASIS staff member or agent to use a weapon under strict conditions, which would require that it be used only to protect ASIS staff members, agents, and those who cooperate with ASIS under section 13 of the act.

The bill would only allow the use of weapons or a self-defence technique outside Australia, and they could not be used for any purpose other than protection. The only exception to use of weapons inside Australia would be for training purposes. I emphasise that the use of weapons and self-defence techniques are only to protect the life and safety of people carrying out agency functions. The exception to the use of weapons and force do not expand agency functions and do not change the fact that ASIS is required to carry out its functions in a non-violent way.

Currently ASIS is not able to provide weapons or training in the use of weapons to staff members or agents. The amendment specifies that ASIS is not prevented from providing weapons, training in the use of weapons or self-defence training. Provision of weapons is limited in the bill to ASIS staff members and agents, including those providing training for other staff members or agents.

The legislative oversight regime requires that weapons or training may be provided only in accordance with a ministerial approval from the responsible minister. The approval would set out the purpose of the provision of the weapon or training, and any conditions to be complied with in relation to the provision of the weapon or training. All such approvals would be passed to the Inspector-General of Intelligence and Security. In addition the Director-General would also be required to issue guidelines on the use of weapons and self-defence techniques. A copy of those guidelines would be provided to the Inspector-General of Intelligence and Security. These requirements are stipulated in the proposed schedule 2.

The bill would exempt ASIS staff members and agents from requirements under state and territory laws, to obtain a licence or permission when acting in accordance with the bill, or registering a weapon provided in accordance with the bill.

This exemption does not in any way allow for the use of a weapon inside Australia other than for training purposes. Rather, it is designed to ensure that inappropriate communication or publication of information about ASIS or ASIS staff does not occur. This is consistent with the intent of sections 39 and 41 of the act, which prohibit the identification of a staff member or agent of ASIS, other than the Director-General of ASIS, and provide protection for information produced by or on behalf of ASIS in connection with its functions.

The functions performed by ASIS are essential and highly valued, and in the current environment have perhaps never been more important to Australia. This bill strikes a balance between the need to allow ASIS to protect its people adequately and cooperate with other agencies effectively, and the need to maintain ASIS as an organisation which carries out its own functions in a non-violent way.

I commend the bill to the House.


The SPEAKER —I thank the minister. Does he have an explanatory memorandum?


Mr DOWNER —I present the explanatory memorandum to this bill.

Debate (on motion by Mr Cox) adjourned.