Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

I rise to speak on the Intelligence Services Amendment Bill 2018 on behalf of the opposition. Labor support this bill. We support this bill because we recognise the need to modernise the legislative framework that governs the Australian Secret Intelligence Service, ASIS, to reflect the changing operational realities in the global environment and the nature of the national security challenges that Australia now faces. Before I go to the content of the bill and the reasons for Labor's support for it, I want to note with approval the way in which this bill has been prepared and now dealt with by the parliament.

To begin with, it's clear that, in developing the measures in this bill, the Australian Secret Intelligence Service and the Department of Foreign Affairs and Trade worked closely with the Inspector-General of Intelligence and Security to develop a workable and well-drafted bill that was suitable for introduction to the parliament. This included the preparation and inclusion in the bill of appropriate safeguards and oversight mechanisms for the use of the new powers.

This bill was introduced to the House and then referred to the Parliamentary Joint Committee on Intelligence and Security on Thursday 29 November, just last week. Because Labor believes that national security is a matter that should always be above politics, we carefully considered the measures in this bill as a matter of priority. Labor members of the intelligence committee worked with their Liberal counterparts to rigorously examine the bill in a very tight time frame to ensure that it was fit for purpose. The committee was able to reach a consensus position that it is fit for purpose. This is how a responsible, constructive and bipartisan approach to national security should operate: in the national interests, rather than for party political advantage.

This constructive bipartisanship was possible because the Department of Foreign Affairs and Trade and ASIS did the necessary work and due diligence to ensure that this bill was fit for purpose before it was introduced. This included early consultation with the opposition. The department did not just serve up an inadequately prepared piece of legislation riddled with problems, in the expectation that the intelligence committee would do the hard work for them by fixing all the problems. This constructive bipartisanship was possible because no attempt was made by ministers in the government to intervene in the intelligence committee's work or to otherwise use political pressure through media announcements.

Regrettably, the responsible, constructive and bipartisan approach applied to this bill was not followed by the Minister for Home Affairs in the context of the bill he introduced to deal with the issue of encryption and a range of new powers, called the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill, or assistance and access bill. That bill was introduced to this place and then referred to the intelligence committee in a parlous state, not fit for purpose. The lack of adequate consultation on the bill by the government ensured that many of the numerous serious problems and risks it contained were not even identified, let alone addressed, by the Department of Home Affairs and its minister prior to introduction. These failures by the responsible minister and his department have forced the intelligence committee to undertake the kind of consultation the department and its minister apparently couldn't be bothered with and to embark on the hugely complex task of trying to identify and fix the many, many problems with the assistance and access bill, with only the very limited resources of a parliamentary committee at its disposal.

The negative consequences of the inadequate approach to national security legislation adopted in relation to the assistance and access bill were only compounded by attempts by both the Minister for Home Affairs and the Prime Minister to intervene in the committee's work by forcing the committee to accelerate its inquiry and trying to force the legislation through the parliament, regardless of the many risks it may pose to our nation and our community. I will have more to say about the assistance and access bill in coming days and raise it now only by way of contrast to the current bill, which has been handled well.

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 ASIS, in performing its functions, must not plan for 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 training is subject to ministerial approval. The nature of the 'protection' that an ASIS agent or staff member can be trained to engage in is interpreted with reference to the long-established common law principles of self-defence, but in a significantly narrowed form. These principles require that the force used be the minimum that the staff member or agent perceives is reasonably necessary in the circumstances in order to protect life or to prevent serious injury to themselves or to another person. However, there are currently 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, another member or agent 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 might be lawful under the common law, but they would nevertheless be in breach of the Intelligence Services Act. This anomalous situation leaves members of ASIS in a difficult legal position should they act in defence of a person who is not in one of the narrow categories listed in the Intelligence Services Act.

This bill would amend the Intelligence Services Act to, first, enable the minister to specify additional persons outside Australia who may be protected by an ASIS staff member or agent and, second, provide that an ASIS staff member or agent performing specified 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 state and Commonwealth agencies, and from approved foreign agencies; hostages; and other bystanders.

The amendments are also intended to address another legal uncertainty that arises because of the inconsistencies between the common law and constraints imposed by the Intelligence Services Act. This second legal uncertainty relates 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 threat of force, to restrain, control or compel a person in a situation where the ASIS member or the 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 would constitute reasonable and necessary force, but that 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 and provided with training in the use of force, and for them to use, or threaten to use, force for the purposes of, or in the course, 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 a 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.

It is self-evident that an oversight regime such as that conducted by the Inspector-General of Intelligence and Security can only be truly effective if the inspector-general is notified of occasions which might warrant her oversight and, once notified, she is in a position to look into the circumstances of the use of a weapon or the use of a self-defence technique by an ASIS staff member or agent. This concept of providing for notification to the IGIS is something that we should ensure is used in any situation where the IGIS is given this important oversight role. In that regard, 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.

I would reiterate that Labor appreciates the nonpartisan and consultative manner in which this bill has been dealt with. This should provide confidence to the parliament and to the wider community in regard to the additional powers that are conferred on ASIS staff and ASIS agents by this bill. Such an approach is an example of how national security legislation should be pursued. I commend the bill to the House.

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