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Thursday, 11 March 2004
Page: 21323

Senator ROBERT RAY (9:42 AM) —I suppose I should explain why the Review of the Intelligence Services Amendment Bill 2003 report is being presented in the Senate today rather than in the House of Representatives. If we were to go the House of Representatives route, we would not have been able to table this report until 29 March—which shows you how arcane, anally retentive and bureaucratic the House of Representatives has become when it comes to the tabling of reports. We would always prefer the Chair of the Parliamentary Joint Committee on ASIO, ASIS and DSD to table the report there, and we can follow suit later in the day. Because we want all senators and members of the House of Representatives to read and absorb the contents of the report before the legislation comes up—maybe in the last two sitting weeks—we thought it was most apt that it be tabled here today.

I would like to join Senator Sandy Macdonald in thanking my colleagues for the constructive way in which they approached this report and the secretary to the Parliamentary Joint Committee on ASIO, ASIS and DSD, Ms Margaret Swieringa, and Mr Charles Vagi, who was on loan at the time, for all the efforts they put in. But finally I would like to thank ASIS and ASIS employees for the way they approached this inquiry. At times they were confronted with some problems they had not considered. Rather than just dissemble or dodge the questions, I think they not only enjoyed but also actually answered those questions at a later hearing. They went away, they thought about it and they came back in a constructive way. So I think David Irvine and the rest of the ASIS team should be congratulated on the way they came to the table at this inquiry.

It is almost passing strange that we have an amendment bill just two years after we entrenched ASIS from a statutory point of view. It was only 2001 that we put ASIS on a statutory basis by legislating. We went through all the issues then in a special select committee, and the issues now addressed in the 2003 bill were never once raised then. Why is that so? The environment has changed quite dramatically.

The answer is very simple: September 11 and its knock-on consequences have changed the environment in which ASIS operates. That could not have been anticipated early in 2001 and it now needs a solution. I must say that the initiative for this particular piece of legislation came out of the agency itself, not out of government per se. It is the agency that put the requirement to government; government is acting on behalf of the agency. This is not a government initiative. It cannot ever be argued that this is another wedge or some such thing; it came from the agency itself.

This report, as Senator Sandy Macdonald said, contains many sensible suggestions about the development of protocols with regard to training, the types of weapons and the procedures associated with them. There is not much doubt that the government would have addressed these issues in any event, but what we would like them to do—and I am sure they will respond positively—is to address them in advance, to set up the protocols, to have them registered with the Inspector-General of Intelligence and Security and to have them ratified by the National Security Committee of cabinet.

One of the requirements of this bill is that there be ministerial approval of training. I would have to say that this bill goes too far even for me. I do not expect the Minister for Foreign Affairs to approve every individual training authority, as this bill currently requires. We have suggested that he approve certain classes of ASIS employees to be trained and that he not be consulted on an individual basis every time. What we would like him to do is to concentrate on the main game and that approvals do not just become routine. I hope the government will accept that, because we are in fact lessening the workload of the foreign minister.

The main reason for this legislation is to give ASIS employees who are operating overseas an ability to defend themselves. This comes out of existing casework, where there are scenarios of ASIS employees having been put in an endangered position. They should have the right to defend themselves, like any people operating in that position. That is just commonsense. It follows that they must have the right to appropriate training beforehand. We are not talking about ASIS employees walking around with bazookas or Maxim guns or anything like that. They are mostly light arms, pistols, semiautomatic and automatic weapons—the normal sorts of thing you would expect AFP officers, for instance, to be wandering around with.

The second leg of the legislation, which I think is crucial, will allow ASIS employees to accompany other Australian agents who are armed, such as the Federal Police and the SAS. At the moment it is not possible for an ASIS employee to accompany an armed member of another Australian agency while operating overseas. This, to me, is absolutely ridiculous. If there is one thing we are starting to learn in the intelligence area, it is the absolute value of accurate and timely operational and tactical intelligence. That is the very thing ASIS will be involved in. We know there are certain weaknesses in the strategic intelligence area, but that is for another debate. It makes commonsense that the legislation be amended. There will be circumstances where an ASIS employee, not armed, will be in the company of people from other Australian agencies who are armed. There is nothing unusual in that at all, and it is quite appropriate.

There is one very controversial area in this legislation that is not properly alluded to in the explanatory memorandum nor in the second reading speech, and that is the ability now under this legislation for ASIS to be involved in planning paramilitary activity and accompanying overseas agencies who are armed and who are doing what is defined in the legislation as legitimate activity. The real question is: what constitutes `legitimate'? Is it legitimate by Australian standards or legitimate by those foreign agencies' standards? There may be a difference between the two, and that could give us problems emanating from all the way back to the changes made after the 1983 Sheraton raid, where ASIS had its entire ability to be involved in paramilitary activity cancelled—null and void, not allowed to do it. There are circumstances in this modern world of cooperation between foreign agencies and Australian agencies where you can envisage a situation where ASIS employees will be involved in those activities. How do you control that? You could write legislation to control it, but there are so many contingencies, so many variables, that it would be almost impossible to write legislation that would cover all those. All you can do is say that these activities are allowed or they are prohibited. The committee has come down on the side that they should be allowed.

I have to say that my colleague Mr Leo McLeay has severe reservations about this. All of us have some doubts. The way the committee has approached this is to say, `Rather than try to write legislation, let's extend the area of authority.' At the moment it resides entirely with the foreign minister, so the committee said, `No, extend that consultation and approval process to the Prime Minister and the Attorney-General.' This is not necessarily in any way a reflection by the committee on Mr Downer's judgment, but there is no sunset clause in this legislation. We do not know who will be foreign minister in future. We do not know which foreign minister will go too far up the Mekong and start authorising all sorts of mad projects, but it is much less likely if the responsibility is spread over to the Prime Minister and the Attorney-General. Ultimately, if they misbehave they will be brought to book by the Inspector-General and by this parliament, but at least it means a wide area of judgment has been brought to bear on these types of operations.

Once again this committee has said that the role of the Inspector-General is crucial in looking at all these activities and at the protocols. It is mandatory that, if ASIS is involved in activities with a foreign agency that have the consequential effect of embarrassing Australia, it be reported to the Inspector-General, who in turn will report it to the National Security Committee of cabinet. We have insisted all the way through our reports that adequate safeguards and oversight be put in, without going over the top. It is very easy to go over the top and demand more and more oversight and safeguards to the point where the whole system does not work. We have resisted that; we have got the right balance. The nature of this report encourages the government, when it brings the legislation back, to amend it in three or four areas and to agree to certain protocols. I think you will get a very good, balanced, commonsense piece of legislation emanating from this chamber.