Intelligence Services Amendment Bill 2018 [2018] AUSStaCSBSD 269 (5 December 2018)

• Intelligence Services Amendment Bill 2018
• Use of force 44
• Significant matters in non-statutory guidelines48

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Intelligence Services Amendment Bill 2018

Purpose	This bill seeks to amend the Intelligence Services Act 2001 to: • enable the minister to specify additional persons outside Australia who may be protected by an ASIS staff member or agent; and • 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
Portfolio	Foreign Affairs
Introduced	House of Representatives on 29 November 2018

Use of force ^[44]

1.67 Section 6 of the Intelligence Services Act 2001 (IS Act) sets out the functions of the Australian Secret Intelligence Service (ASIS). Subsection 6(4) provides that, in performing its functions, ASIS must not plan for, or undertake, activities that involve paramilitary activities, violence against the person or the use of weapons. Item 1 of the bill seeks to insert a new subsection 6(5A) into the IS Act. This provision would provide that the prohibitions in subsection 6(4) do not prevent ASIS officers from using force, or threatening the use of force, against persons in the course of operations undertaken by ASIS outside Australia, so long as the use of force or the threat of the use of force is in accordance with Schedule 3.

1.68 Item 13 of the bill seeks to insert Schedule 3 into the IS Act. Subclause 1(2) of that Schedule would provide that the use of force, or the threat of the use of force, by an ASIS officer against a person is not prevented by subsection 6(4) of the IS Act if the conduct is for the purpose of preventing, mitigating or removing a significant risk to a person's safety, a significant risk to security, or a significant risk to the operational security of ASIS from interference by a foreign person or entity.

1.69 The committee notes that the use of force, and the threat of the use of force, would be confined to circumstances where the relevant conduct is approved by the minister and complies with guidelines made under clause 2 of proposed Schedule 3.^[45] The committee also notes that proposed section 6(5B) provides that subsection 6(5A) would not permit conduct by a person that would constitute torture, would subject a person to cruel, inhuman or degrading treatment, would involve the commission of a sexual offence, or is likely to cause death or grievous bodily harm (unless it is necessary to protect life or prevent serious injury to another person). However, it appears that ASIS officers would still be able to use force, or threaten to use force, to (at least temporarily) restrain, control or compel a person in situations where the officer believes this to be necessary to prevent the escalation of a potential threat.^[46] The committee considers that this has the potential to trespass unduly on personal rights—particularly the right to liberty and security of the person.

1.70 In light of these matters, the committee is concerned about the breadth of the circumstances in which ASIS officers might use or threaten to use force. In particular, the committee is concerned that ASIS officers would be permitted to use force for the purposes of addressing a risk to the 'operational security' of ASIS. The meaning of 'operational security', and the potential breath of this term, is unclear to the committee. The explanatory memorandum does not appear to provide any explanation in this regard (for example, the circumstances in which force might be used to safeguard operational security). It merely indicates that guidelines to be issued by the Director-General will elaborate further on applicable requirements.^[47]

1.71 The committee is also concerned that ASIS officers would be permitted to use pre-emptive force or the threat of force to restrain, control or compel a person in certain situations. In this regard, the committee notes that while the explanatory memorandum indicates that pre-emptive force would be used to address immediate risks or threats, there does not appear to be anything on the face of the bill that would limit the use of force in this manner.

1.72 The committee requests the minister's advice as to:

• the circumstances in which it is envisaged that force, or the threat of force, might be used against a person to protect the 'operational security' of the Australian Secret Intelligence Service from interference by a foreign person or entity;

• the circumstances in which it is envisaged that pre-emptive force would be used to prevent, mitigate or remove risks; and

• the appropriateness of amending the bill to specify that pre-emptive force may only be used to address immediate risks or threats.

Significant matters in non-statutory guidelines^[48]

1.73 Clause 2 of proposed Schedule 3 seeks to require the Director-General of ASIS to issue guidelines for the purposes of that Schedule. The guidelines would relate to the use of force, and threats of the use of force, against a person in the course of activities undertaken by ASIS outside Australia. Clause 2(4) of proposed Schedule 3 provides that the guidelines would not be legislative instruments.

1.74 The committee's consistent view is that significant matters, such as the circumstances in which ASIS officers are permitted to use or to threaten to use force, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. Where significant matters are left to non-legislative instruments or to non-disallowable legislative instruments, the committee would also expect a sound justification for this approach to be included in the explanatory materials. In this instance, the explanatory memorandum does not provide an explanation as to why the guidelines could not be set out in primary legislation. However, it does indicate that it is intended for the guidelines to be subject to external scrutiny. In this regard, the explanatory memorandum states that:

guidelines must be provided to the Inspector General of Intelligence and Security and the Inspector General of Intelligence and Security must brief the Parliamentary Joint committee of Intelligence and Security 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 the guidance to ASIS staff members and agents to ensure that such rules for the use of force remain appropriate.^[49]

1.75 In relation to why the guidelines would not be legislative instruments, the explanatory memorandum states that the guidelines 'do not alter or determine the law', and that they are 'intended to be merely declaratory of the law'.

1.76 However, the committee notes that, under paragraphs 1(2)(e) of proposed Schedule 3, the use of force or the threat of the use of force against a person by an ASIS officer may only be authorised if (among other matters) the conduct is in compliance with guidelines issued by the Director-General. In this respect, it appears that the guidelines would determine the law as it relates to the use of force by ASIS officers, including by imposing obligations on those officers. Consequently, it appears that the guidelines should be considered to be a legislative instrument within the meaning of the Legislation Act 2003^[50] (Legislation Act).

1.77 In light of this matter, and noting that it is intended for the guidelines to be subject to external scrutiny, the committee considers that it may be appropriate for the guidelines to be made by disallowable legislative instrument, if not set out in primary legislation, to provide for appropriate parliamentary scrutiny.

1.78 Additionally, where the Parliament delegates its legislative power in relation to significant matters, the committee generally considers that it is appropriate that specific consultation requirements (beyond those in section 17 of the Legislation Act) are included in the legislation and that compliance with those obligations be a condition of the validity of the relevant guidelines. In this respect, the committee notes that while the explanatory memorandum states that the guidelines would be developed in consultation with the Attorney-General's Department,^[51] there is nothing on the face of the bill that would require consultation to be conducted. Further, the explanatory memorandum does not indicate whether any other stakeholders would be consulted during development of the guidelines.

1.79 The committee requests the minister's advice as to:

• why it is considered necessary and appropriate to leave significant matters relating to the use of force to non-statutory guidelines; and

• the type of consultation that it is envisaged would be conducted prior to making the guidelines.

1.80 The committee also seeks the minister's advice as to the appropriateness of amending the bill to:

• require that the guidelines made under clause 2 of proposed Schedule 3 be made by disallowable legislative instrument; and

• include specific consultation obligations (beyond those in section 17 of the Legislation Act 2003), with compliance with those obligations a condition of the validity of the guidelines.

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[44] Item 1, proposed section 6(5A); item 13, clause 2 of proposed Schedule 3. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[45] Paragraphs 1(2)(c), (d) and (e) of proposed Schedule 3.

[46] See explanatory memorandum, p. 2.

[47] Explanatory memorandum, pp. 3-4.

[48] Item 13, clause 2 of proposed Schedule 3. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[49] Explanatory memorandum, p. 13.

[50] See subsection 8(4) of the Legislation Act 2003.

[51] Explanatory memorandum, p. 13.