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Wednesday, 5 December 2018
Page: 9448


Senator PAYNE (New South WalesMinister for Foreign Affairs) (11:17): I will make a few summing up observations on the Intelligence Services Amendment Bill 2018. I thank senators for their contributions to the debate. The work of the Australian Secret Intelligence Service is necessarily undertaken largely away from public view. Nevertheless, I can say in this place that much of ASIS's operational work overseas is necessarily conducted in hazardous environments, including in warlike zones and other high-risk environments. There has been considerable change in the environments where ASIS officers are deployed, and the risks—the threats—have increased greatly since the original package of the Intelligence Services Act in 2001.

The original form of the act limited the ability of ASIS officers to act even in their own self-defence, but by 2004, drawing on practical experience after the attacks of 9/11, the act was amended to allow ASIS officers, where authorised by the Minister for Foreign Affairs, to use weapons for self-defence in narrowly defined circumstances. Since the time of those amendments, successive governments have asked ASIS to do more in response to changing national security priorities and to unfolding events and to do so in new places and in circumstances unforeseen in 2001 or even in 2004. Fifteen years later, the government is of the view that it is time to amend the act to allow ASIS to more safely operate in a far more complex and dangerous world. This bill seeks to amend the Intelligence Services Act to enable ASIS to better protect its officers and other persons, when operating in hazardous environments overseas, through the defined use of force and to protect Australia's national security interests, especially in counterterrorism operations overseas.

There will be additional oversight mechanisms that come with these new and additional powers to use force under clearly defined conditions. The Minister for Foreign Affairs will need to be satisfied that arrangements are in place to ensure any actions taken by ASIS officers are both necessary and reasonable, having regard to the purposes for which the direction is given. While lethal force may already be used in self-defence as a last resort to protect an officer or another protected person from serious harm or death, it is explicitly provided that in undertaking such an activity ASIS staff members or agents will not, and must not, engage in torture, cruel, inhumane or degrading treatment, sexual assault or unlawful killings.

The amendments before the Senate underline the continuing importance of the role of the Minister for Foreign Affairs in authorising the use of weapons by ASIS. If this bill is passed, the conduct of a specified activity by ASIS or its agents would require the Minister for Foreign Affairs to consult with the Prime Minister and certain other ministers before authorising such an activity. If this is enacted, the independent Inspector-General of Intelligence and Security will oversee compliance with the bill to ensure that ASIS's conduct is consistent with the law and with the Australian public's expectations of propriety.

I note the contributions of both Senators Farrell and McKim on the bill. I thank Senator Farrell for his contribution. In relation to the observations made by Senator McKim: I note that, in an approach typical of the Australian Greens to protecting Australia's national security, Senator McKim has engaged in a spray about issues that are of concern to the Greens and which don't appear to include Australia's national security as such. In referring to the bill itself as 'mission creep', Senator McKim conveniently ignores all of the protections which I've just spoken about—the oversight mechanisms which I've just referred to, which are part of the bill and which Senator Farrell has already referred to in his remarks. Senator McKim ignored all of that, but that is unsurprising coming from the Australian Greens.

It is pertinent also to refer to the senator's observations in relation to the Hope royal commission and measures which came out of that. It is important to note that these measures are not the same and that the circumstances are most certainly different. I think it is most unfair, in fact, to characterise this particular bill as mission creep, given the great deal of consideration that has gone into its development and given the effluxion of time, indeed, since the last time the act itself was amended in this context.

There is now in Australia no need for ASIS to be in a role of undertaking special operations. Of course, we have an existing special operations capability as part of the ADF. As I noted in my remarks when the last amendments were made on these matters in 2004, ASIS has trained and deployed with weapons in certain situations since that time. But there have been challenges and changes to Australia's national security circumstances which, as I said in my opening statement, require ASIS to operate increasingly in hazardous circumstances overseas, especially when operating against terrorists, violent extremists and other threats.

The current provisions of the Intelligence Services Act are leading to absurd situations which would make little sense to the public. For example, we might see armed ASIS officers undertaking an operation overseas being prohibited by the current act from using weapons in defence of an innocent person other than another officer, an agent or a limited category of cooperating person who might be threatened by a terrorist or a kidnapper, even where this is occurring right in front of them. This includes both Australian and foreign national hostages. These amendments don't affect the prohibitions in section 6(4) of the Intelligence Services Act which, of course, prevent ASIS officers from planning or undertaking military activities.

A great deal of consultation has gone into this bill to ensure that it is transparent and that it is the most effective bill possible. The amendments, as I said, are not proposed lightly, nor are they excessive, nor are they an overreach. We believe in them, and the government supports them, because they are balanced, they are proportionate and, fundamentally, they are necessary.

To conclude, every day the women and the men of ASIS go about their work in protecting and advancing Australia's national interests. They are often called upon to do so covertly at considerable personal risk and hazard and in environments of significant danger, and I want to acknowledge them and their work. As the world has become more complex, it's clear that the legislation that governs ASIS operations also needs to evolve so that staff members and the agents who assist them have the appropriate capacity for self-defence as authorised by the Minister for Foreign Affairs. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.