Don Farrell (SA, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

I rise to speak on the Intelligence Services Amendment Bill 2018 on behalf of the opposition. I would like to say at the outset that Labor supports this bill. We support this bill because we recognise the need to modernise the legislative framework that governs the Australian Secret Intelligence Services, ASIS, to reflect the changing operational realities of the global environment and the nature of Australia's current national security challenges.

First, some background is helpful to contextualise the proposed amendments that the Intelligence Services Amendment Bill 2018 makes to the existing legal framework. The Intelligence Services Act has an explicit limitation that, in performing its functions, ASIS must not plan or undertake activities that involve paramilitary activities, violence against the person or the use of weapons. In 2004, parliament amended the Intelligence Services Act to permit ASIS staff members and agents to undertake training in, and to engage in the use of self-defence techniques and weapons for the purpose of protection when undertaking activities outside Australia. This is subject to ministerial approval.

The nature of the protection that an ASIS agent or staff member can be trained to engage is in interpreted consistently with common law principles of self-defence—in other words, a minimum force reasonably necessary in the circumstances as the staff member or agent perceives that it is required to protect life or to prevent serious injury to themselves or to another person. However, currently there are strict limitations on who may be protected by an ASIS staff member or agent acting in self-defence. The scope is limited to the individual ASIS member or agent themselves, other members or agents of ASIS or a person from another approved authority who is cooperating with ASIS. This is a narrower scope than those who may otherwise be protected by any other Australian person acting under the common law of self-defence. This means that, should an ASIS staff member or agent engage in the use of a weapon or self-defence technique to protect persons who are not within the limited scope defined by the legislation, their action may actually be permitted in accordance with common law, but they would be in breach of the Intelligence Services Act.

This bill would amend the Intelligence Services Act to: firstly, enable the minister to specify additional persons outside Australia who may be protected by an ASIS staff member or agent; and, secondly, provide that an ASIS staff member or agent performing specific activities outside Australia will be able to use reasonable and necessary force in the performance of an ASIS function. Additional persons could include officers from other agencies such as officers from a state or Commonwealth agency and from approved foreign agencies, hostages and other bystanders.

The amendments are also intended to address another current legal uncertainty as to whether the existing provisions that enable the use of a weapon or self-defence technique for protection also extend to the ability to apply pre-emptive force or threats of force to restrain, control or compel a person in a situation where the ASIS member or agent feels that, if they do not do so, the situation is likely to escalate to a situation where greater force is required. This use of pre-emptive force in this context would be limited to what could constitute reasonable and necessary force but could not result in physical harm or injury to the person that might exceed the threshold of actual bodily harm under Australian law.

Crucially, the proposed extended powers available to ASIS staff and agents to use weapons, self-defence techniques and reasonable force will be subject to appropriate oversight. Specifically, ministerial approval is required for an ASIS officer or agent to be provided with a weapon, to be provided with training in the use of force and to use force for the purposes of or in the course of specified activities. The minister must not give approval unless they have also consulted with the Prime Minister, the Attorney-General, the defence minister and any other minister who has responsibility for a matter that is likely to be significantly affected by an act that is to be approved. Approval must be provided in writing to the Director-General of ASIS and must specify any conditions that must be complied with and, if approved, the kind or class of weapon involved. In addition, the Director-General of ASIS must give a report to the Inspector-General of Intelligence and Security, the IGIS, if a weapon or self-defence technique is used by an ASIS staff member or agent. The report must be given in writing as soon as practicable after the weapon or self-defence technique is used, and explain the circumstances under which the use occurred.

The bill also includes a new oversight mechanism whereby the IGIS must brief the Parliamentary Joint Committee on Intelligence and Security regarding the content and effect of ASIS guidelines on matters related to the use of weapons and self-defence techniques if requested by the committee or if the guidelines change. This is intended to provide an additional layer of external scrutiny to the content and scope of guidance to ASIS staff members and agents in order to ensure that such rules governing the use of force remain appropriate.

This bill was introduced to the House of Representatives and then referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report. Following inquiry, the committee was satisfied with the provisions contained in the bill and recommended that the Intelligence Services Amendment Bill 2018 be passed. Labor appreciates the non-partisan and consultative manner in which this bill has been dealt with, and the respect for the parliament and the importance of adequate oversight requirements. This should provide confidence to the parliament and to the public in regard to the additional powers conferred by this bill. Such an approach is an example of how national security legislation should be pursued. I recommend the bill to the Senate.