Ms Julie Bishop (Curtin, Liberal Party, Deputy Leader of the Opposition) Share this | Link to this | Hansard source

I rise today to support the Foreign Affairs Portfolio Miscellaneous Measures Bill 2013. This bill will make two changes. While not major, they will do much to assist the Australian Secret Intelligence Service and its employees—our overseas intelligence operations.

In amending the Intelligence Services Act 2001, this bill will make it easier for ASIS employees to transfer to another Public Service agency, extending to them the same advantages given to other members of the Australian Public Service. Put more simply, we must protect the identity of ASIS officers, and usually they claim to be public servants in these circumstances. But, when they seek to transfer to another government agency, it becomes rather problematic that they do not transfer pursuant to the Public Service Act, as one would expect of a public servant. So, importantly, the changes proposed make it easier for the ASIS officials to meet their legal obligations not to disclose the nature of their relationship with the service, and they can then transfer between agencies, pursuant to section 26 of the Public Service Act. This mechanism makes sense. It still protects an ASIS employee and their identity, but it facilitates transfers which can only assist in their career development.

Those of us who have not served in such a capacity cannot truly imagine the sacrifices that are made by the men and women of our intelligence services. For most, it is not so much a job but a way of life. But there are career opportunities that arise—it may be a promotion or more flexible or suitable work arrangements—and what the government can and should do is make it easier for them to do what our country asks of them. Should they choose to move between government agencies or departments, we can certainly make it easier for them to do so.

The bill will also amend the Work Health and Safety Act 2011 to enable the Director-General of ASIS, with the approval of the minister responsible for the Work Health and Safety Act, to make a declaration that specified provisions of the act do not apply or apply subject to modification in relation to work carried out for ASIS. In other words, it gives the director-general the authority to carve out or provide exemptions to ASIS employees from the application of the act. As it currently stands, the director-general is unable to make such a declaration. I do not think it takes too much imagination to think of situations in which our ASIS employees overseas would find it difficult for them to comply, to the letter, with the Work Health and Safety Act. So this amendment does give greater legal clarification to the operation of the provisions of that act.

Importantly, it will provide ASIS with the same level of legal certainty that is currently afforded to both the Australian Defence Force and the Australian Security Intelligence Organisation. My understanding is that the heads of both the ADF and ASIO have been able to make such declarations to carve out the application of the Work Health and Safety Act to their particular agencies. This will ensure that full compliance with the act does not jeopardise Australia's security or the protection of its interests. As the bill's explanatory memorandum makes clear:

… full compliance—

with the act—

could in some circumstances place people who work for the Director-General of ASIS at risk and prejudice national security.

So requiring ASIS employees to meet all the provisions of the Work Health and Safety Act while they are overseas could involve placing them at risk. No Australian should doubt the difficult circumstances in which ASIS operates overseas. Managing risk is a core part of its business. As stated by its director-general, Nick Warner, in July 2012—the first ever public address about ASIS:

We have to manage risk across the whole range of our activity, from keeping our own staff and agents safe, to ensuring the integrity of our operational work and the validation of our sources.

ASIS fulfils an important role in protecting Australia's security and her interests. The need for such an agency was conceived by Prime Minister Robert Menzies in the early years of his post-World War II prime ministership. He said he had:

… decided to establish a secret intelligence service which, when organised in due course, will operate in South East Asia and the Pacific areas adjacent to Australia.

Menzies noted at the time:

Recent developments in Asia and our 'near north' make this both a prudent and an urgent measure.

The service was established in 1952 as part of the Department of Defence. It is one of the six agencies that make up the Australian intelligence community. Of course, it has since evolved into a larger, geographically dispersed organisation helping to safeguard and advance our national interest on a much wider and broader front. Its contribution to our country is needed as much today as when it was first established in the early days of Prime Minister Bob Menzies. Accordingly, the coalition is pleased to lend its support to this bill.

Richard Marles (Corio, Australian Labor Party, Parliamentary Secretary for Pacific Island Affairs) Share this | Link to this | Hansard source

I begin by acknowledging the contribution of the Deputy Leader of the Opposition in support of the Foreign Affairs Portfolio Miscellaneous Measures Bill 2013. I thank her also for her very supportive statements of the good work of Australia's officers in ASIS.

This bill amends the Intelligence Services Act 2001 and the Work Health and Safety Act 2011. The amendments to the Intelligence Services Act will create a mechanism for Australian Secret Intelligence Service employees to move to an Australian Public Service agency in the same way that Australian public servants can voluntarily transfer from one Australian Public Service agency to another under section 26 of the Public Service Act 1999. The proposed provisions provide a mechanism for the Director-General of ASIS and the Public Service Commissioner to agree to equivalent classification levels. The amendments to the Intelligence Services Act will better facilitate the protection of an ASIS employee's identity as an ASIS officer, and broaden the mobility opportunities for ASIS employees in the Australian Public Service.

ASIS employees are not Australian public servants; instead they are Commonwealth officers employed under the Intelligence Services Act. However, in order to protect their identities as ASIS officers under section 41 of the Intelligence Services Act, ASIS employees are typically identified as public servants. In the ordinary course, public servants were transferred to other Public Service agencies under the Public Service Act, and there is no obvious reason a public servant would not transfer under this section. The bill addresses this by allowing ASIS officers who are identified as public servants to act like public servants if they are transferred.

This bill also contains amendments to the Work Health and Safety Act. These amendments will enable the Director-General of ASIS, with the approval of the minister responsible for the Work Health and Safety Act, to make a declaration that specifies provisions of the Work Health and Safety Act do not apply, or apply subject to modifications, in relation to persons carrying out work for the director-general. The amendment does not represent a change in the policy underpinning the Work Health and Safety Act. Subsection 12C(1) of that act already specifically recognises:

Nothing in this Act requires or permits a person to take any action, or to refrain from taking any action, that would be, or could reasonably be expected to be, prejudicial to Australia’s national security.

However, currently, there is no mechanism to modify the operation of the specific provisions of the act to people who perform work for the Director-General of ASIS. This is in contrast to the position of the Australian Security Intelligence Organisation as the Australian Defence Force. Both of these agencies have mechanisms for modification of the Work Health and Safety Act under sections 12C and 12D of the act, respectively. Any modification of the act by the Director-General of ASIS will occur only with the agreement of the minister responsible for the Work Health and Safety Act. In administering ASIS and in the exercise of the power to make a declaration, the director-general must take into account the need to promote the objects of the Work Health and Safety Act to the greatest extent, consistent with the maintenance of Australia's national security. I commend the bill to the House.

Question agreed to.

Bill read a second time.

Ordered that this bill be reported to the House without amendment.