Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to 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.

Julian Hill (Bruce, Australian Labor Party) Share this | Link to this | Hansard source

I want to make a few comments on the Intelligence Services Amendment Bill 2018 and, in doing so, I say at the outset that I'm not a member of the Parliamentary Joint Committee on Intelligence and Security and, therefore, I have not been part of the detailed consideration. There are two reasons why I want to make some remarks. I have an interest in national security matters and, of course, there are relatively few bills that come before the House and, therefore, opportunities to consider these things. I do believe it's important to strive for bipartisanship to the greatest extent possible in relation to national security bills. I also have a very longstanding and broad interest in good legislative process. Wearing our hat as legislators is part of our role here. It's nerdy, if you like, but it's true. I think it's really important that good process and proper process is observed in making laws.

For both of those reasons, I want to compliment the government on presenting this bill or, to be more accurate, to compliment the member for Curtin, who had stewardship of this bill in her tenure as foreign minister. It is a good example of how the legislative process should work on security matters. There should be a deliberative process, as there has been, and there should be extensive and early consultation, as I understand and as I'm advised there has been, both with the shadow ministers in the opposition and also via the PJCIS. So I think it's fair to say that there has been extremely sensible handling of the bill on the government's part; therefore, Labor could do our job as a responsible opposition, striving for bipartisanship, because the government behaved like adults when Minister Bishop occupied the portfolio in relation to this legislation.

As the shadow Attorney-General just did, that can be, should be and must be contrasted with the mess of the encryption laws, which are still playing out this week. On one hand, we had the member for Curtin, when she was Foreign Minister Julie Bishop—as she was known—with a sensible, grown-up process, consulting with parliament and introducing legislation to achieve the objectives, with the appropriate checks and balances on new powers. Of course, for that, the Liberal Party party room rejected her bid for leadership. On the other hand, we have had the Prime Minister's handling of the encryption laws, abandoning proper committee and legislative process, heavying the government members of the committee via press conferences in the last week and picking a deliberate fight with the opposition, or so it looks from the outside. Again I say that I'm not party to the discussions and I have no particular knowledge of where they're at, but to go on TV this week, as one of the government ministers did, and say that Labor are 'friends of paedophiles' and 'friends of terrorists' in relation to a serious national security matter, as if that's somehow going to get the opposition on board, is disgraceful. Of course, in return for the Prime Minister's behaviour, they voted to install him in the leadership over the member for Curtin and her more measured, sensible approach. For any government members who are listening, you do see the difference in approach. When you take a sensible approach, you get a sensible outcome. When you use a sensible legislative process and the committee process, as it is set up to do on serious matters, you get a sensible outcome. We're here and we're supporting the bill; it's agreed. On the other hand, when you deliberately provoke and use a flawed legislative process and abandon the committee process, you end up in a mess.

I want to praise the shadow Attorney-General and the Labor members of the PJCIS for their work. We know from the outside that it is one of the hardest committee gigs in the parliament. The committee meets for hours and it meets late at night. There is no higher priority than national security and community safety. Senators McAllister and Wong were involved as well. They are enormous, serious efforts in fixing the government's messes. We heard comment with the previous bill. Actually, we've just had two national security bills go through the chamber with the support of the opposition. The other bill was the Foreign Influence Transparency Scheme Legislation Amendment Bill 2018. I had the misfortune of sitting in the chamber in December after the marriage equality vote. While everyone else was out drinking and celebrating, I had to wait to table a committee report, which for some obscure reason had to be done. I watched the Prime Minister introduce the bill, with grand hyperbole and comments about Chinese influence and 'Shanghai Sam' and all sorts of sledging of the opposition, when this was supposed to be a serious bill. As it turned out, the foreign influence bill was completely flawed because the government hadn't followed proper process. It was rushed. For such a serious, once-in-a-generation change, as we were told, they should have used an exposure draft. They should have consulted with the opposition. They should have consulted with the committee before sending the Prime Minister into the House, desperate on Christmas Eve for a bit of political momentum.

It's fair to say that the shadow minister is measured in his tone, as is appropriate, given his role. But what I see from the backbench is the government, when they're desperate, when they're in political strife, pressing what is a breaking glass—press national security. It's their favourite and lowest road wedge. It's a political plaything when it suits them, when they're desperate.

I'll keep my remarks on the substance of the bill very brief, because I think it's been well covered. It is a measured amendment. We do have a changing security and operational environment for our ASIS officers and it has been a fast-growing agency over the last decade. We ask them to operate in difficult environments that are different from that which had been contemplated perhaps 10 or 20 years ago: hostage situations, difficult negotiations, supporting publicly-known and non-publicly-known military operations. The current laws from 2004 are overly restrictive on governing the use of reasonable force. So it's entirely appropriate that the parliament take seriously their requests to update the legislative framework, to modernise it and to make sure they're protected in their work, in all legal aspects, and able to do their important work. Both elements of the bill are appropriate: firstly, enabling the minister to specify additional persons to be protected by an ASIS staff member or agent and, secondly, clarifying the use of reasonable force—in effect, extending the self-defence provisions to match the common law.

The final thing I'll remark upon are the strong and appropriate approval and oversight checks and balances in this bill, which are clearly absent from the encryption bill which has been presented to the House: ministerial approval being required; constraints on the minister's ability to approve without consulting with other key ministers, and senior ministers at that; a requirement for approvals to the Director-General of ASIS to be in writing—no verbal approvals; a requirement that the Director-General of ASIS give a report to the IGIS—again, entirely appropriate; and an entirely new oversight mechanism, with a mandatory report from the Inspector-General of Intelligence and Security to the PJCIS. They're sensible and strong measures, they're appropriate checks and balances and they're the kinds of things which, to her credit, the member for Curtin introduced as a sensible piece of national security legislation.

I'll close my comments by contrasting that—again, I have no knowledge of where the committee is at with this; it's their business—with one of the most disturbing aspects in Minister Dutton's encryption bill, which is a complete lack of oversight and accountability. If you were serious about getting bipartisanship on national security rather than just picking a fight with the opposition so you can get some headlines through the week so it looks like you're doing something or standing for something, it would be unacceptable—and, at the very least, there would be serious concerns raised—to present a bill seeking enormous new powers to decrypt the phones and apps of everyone in Australia with no judicial oversight. The only comparison which you could reasonably draw is the restrictions and checks and balances that apply to telephone interceptions, which require warrants. That's not a very grown-up approach if you're serious about national security. I commend the former foreign minister on her approach and contrast it with the mess that's still playing out this week via the committee, which I do hope will be resolved by the end of the week so we can all go home.

Stuart Robert (Fadden, Liberal Party, Assistant Treasurer) Share this | Link to this | Hansard source

I thank the colleagues who have spoken on this important bill, the Intelligence Services Amendment Bill 2018. The work of the Australian Secret Intelligence Service is undertaken outside of public view. Nevertheless, I can say to the House today 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 operating environments where ASIS officers are deployed, and the risks and threats have greatly increased since the original passage 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 9/11 attacks, 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 these amendments, successive governments have asked ASIS to do more in response to national security priorities and unfolding events and to do so in new places and new circumstances unforeseen in 2001 or 2004. Fifteen years later, 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 better protect Australia's national security interests, especially in counterterrorism operations overseas. There'll 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 necessary and reasonable, having regard to the purpose 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's 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 House 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 will require the Minister for Foreign Affairs to consult with the Prime Minister and certain other ministers before authorising such an activity. If this bill becomes law, 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 expectation of propriety. A great deal of consultation has gone into the bill to make it the most transparent and effective bill possible. These amendments are not proposed lightly, nor are they excessive or an overreach. They're balanced, proportionate and necessary.

To conclude, each day the women and men of ASIS go about their work to protect and advance the Australian national interest. They're often called upon to do so covertly, at considerable personal risk and hazard, and in environments of significant danger. As the world becomes more complex, it is clear that the legislation that governs ASIS operations also needs to evolve to ensure 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 House.

Question agreed to.

Bill read a second time.