Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

I rise to speak on the Intelligence Services Amendment Bill 2018 and to express some concerns that the Greens have about this legislation. The explanatory memorandum to this bill states:

The Bill will improve and modernise the legislative framework that governs the use of force by the Australian Secret Intelligence Service (ASIS) to address key operational challenges and issues. The Bill will do this by amending the Intelligence Services Act 2001 (IS Act) to:

a. enable the Minister to specify additional persons outside Australia who may be protected by an ASIS staff member or agent; and

b. 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.

In short, additional persons or classes of persons will be permitted to use weapons, and ASIS staff members and agents will be permitted to use force, including the use of a weapon, against persons outside Australia.

It's fair to say that ASIS has a pretty chequered history when it comes to the use of weapons. The legislative framework governing ASIS's use of weapons was changed significantly in response to a recommendation of the Royal Commission on Australia's Security and Intelligence Agencies following what became known as the Sheraton Hotel incident, which took place in November 1983.

It's worth reminding ourselves of the circumstances of that incident. I'm relying here on a paper entitled Wayward governance: illegality and its control in the public sector, published by the Australian Institute of Criminology. In that paper the AIC wrote, in relation to the Sheraton Hotel incident, that, in that incident, staff of the hotel were confronted at a lift by a group of men:

Some were wearing masks, some were carrying weapons, ranging from Browning 9 mm automatic pistols to the formidable Heckler and Koch submachine gun. The intruders moved through the lobby into the kitchen, menacing the kitchen staff on the way, and departed in two getaway cars waiting outside a kitchen exit. One of the cars was stopped by … Victoria Police a short distance from the hotel and its occupants were taken into custody. … Hotel staff may have assumed that they were the victims of an armed robbery; in fact they were unwilling parties to … a resoundingly unsuccessful training exercise by officers of the … Australian Secret Intelligence Service (ASIS).

The royal commission recommended that the use of weapons by ASIS be terminated and that ASIS's stocks of weapons, including explosives, be disposed of. The government of the time accepted and acted on those recommendations.

I have a personal recollection of this event, and I would imagine that many of the senators of my age—ranging from slightly younger to quite a bit older—in this place would also have a personal recollection of this event. It does call into memory some of the other shambolic so-called training exercises that have been held in Australia by our security and intelligence services, including one that was ultimately truncated on the streets of Melbourne a few years ago by the Australian Border Force. That particular event, the Sheraton Hotel incident, which took place in November 1983, did result in a significant change to the legislative framework regarding ASIS's use of weapons and the stocks of weapons that ASIS could maintain. It's also worth noting that, since then, in 2004 an amendment enabled ASIS staff members and agents to be trained in and equipped with weapons and techniques for the purposes of self-defence and the defence of fellow officers and others cooperating with ASIS under authorisation of the Minister for Home Affairs.

That's where the framework sits at the moment. ASIS agents and staff members can be trained in self-defence techniques and equipped with weapons for the purposes of self-defence and the defence of fellow officers and other people cooperating with ASIS. This amendment continues the mission creep that we so often see in this place. Again, it would, in effect, lower the threshold from where it currently sits with regard to self-defence and change that threshold by providing that an ASIS staff member or agent preforming specified activities outside Australia will be able to use reasonable and necessary force in the performance of an ASIS function. That's a significant lowering of the threshold that is being presented to us today.

It's been argued by the government that this is a minor increase in powers which is both necessary and proportionate, but, in the view of the Australian Greens, this is mission creep. This legislation joins the many hundreds of pieces of legislation that we've seen passed through state, territory and Commonwealth parliaments in the last 20 years that provide greater powers to our intelligence services and erode fundamental rights, freedoms and liberties in this place.

I want to say again that Australia is the only liberal democracy in the world that does not have some form of charter or bill of rights either constitutionally or legislatively enshrined. It's a matter that absolutely needs to be addressed by this parliament, and I remind members that the Greens have a motion that will be coming on later today to provide for a Legal and Constitutional Affairs References Committee inquiry into the form and function of a legislated charter of rights in this country. We urgently need a charter of rights in Australia because the LNP and the ALP, in zombie policy lock step, are sleepwalking Australia down the dangerous path to a police state.

We will see legislation that is far more significant than this come before the Senate in the next 36 hours or so, when there will be amendments around powers that intelligence agencies have in regard to backdoor entry to encrypted apps. That legislation will contain other, particularly disturbing, provisions, including a provision that some intelligence agencies may be able to remotely access the computer of anybody in this country for specific purposes in specific circumstances without the knowledge of the person whose computer it is and in some cases without a warrant. Disturbingly, the legislation provides that, even if on retrospective application a judicial authority or the AAT makes a determination that in fact a warrant should have been sought—that is, that the remote covert access to anyone's computer was made unlawfully—the intelligence agencies can actually keep the information that they unlawfully accessed from a private citizen's computer and use that information in their investigations.

We are seeing an erosion of fundamental rights and freedoms. It is not just civil and political freedoms, although those are being eroded in this country, and there is quite rightly significant concern about that, but other freedoms and rights, such as the right to privacy. This is all being done in the name of counterterrorism, and it's being done in deals stitched up behind the closed doors of the Joint Standing Committee on Intelligence and Security between the ALP and the LNP. I want to say how disappointing it is that the ALP has crumbled into a pathetic heap in regard to the encryption legislation.