Intelligence Services Amendment Bill 2018 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 14 (13 February 2019)

• Intelligence Services Amendment Bill 2018
• Use of force27
• Significant matters in non-statutory guidelines31

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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
Bill status	Received Royal Assent on 10 December 2018

Use of force^[27]

2.42 In Scrutiny Digest 15 of 2018 the committee requested 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 (ASIS) 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.^[28]

Minister's response^[29]

2.43 The minister advised:

The Committee has requested advice in relation to 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, and in particular, the use of 'pre-emptive' force to address immediate risks or threats.
As the Committee would appreciate, ASIS operations are necessarily highly classified. The location, nature and substance of those operations varies and is not able to be disclosed publicly. The Australian Government has put as extensive an account as possible into the public domain as part of the material associated with the Bill. 'Operational security' in this context relates to the secrecy of the purpose of the ASIS activity, and indeed, the fact of ASIS involvement. Importantly, force or the threat of force may only be used where there is a significant risk to the integrity of ASIS operations from interference by a foreign person or entity. In practice, this means that such use of force will need to be reasonable and necessary in order to protect the liberty of ASIS staff members or agents undertaking an operation overseas. It could also apply where the sensitivity and the value of the operation to Australia's national interests, as determined by the Minister having consulted with the Prime Minister, Attorney-General, Minister for Defence and other responsible Ministers, is such that the use of force to restrain, control or compel a person in order to protect the integrity of that operation would be reasonable and proportionate. While it is not possible to be proscriptive about the particular operations, which would be of such significance, it is the case that this ability to use force will not apply to routine ASIS intelligence activities. Reasonable and necessary force in this context might involve, for example, temporarily restraining a person who is uncooperative and/or who poses a threat of compromise to the intelligence operation. Such force might also be used to search a person including to seize a potential weapon or communications device, for example, where the device is likely to be used to alert others to the ASIS operation.
The Act does not permit an ASIS staff member or agent to use force in self-defence beyond the concept as it applies under common law. At common law, whether pre-emptive acts are appropriate or not does not necessarily depend on whether an attack was imminent or a person immediately threatened, but whether the accused person's perception of danger led him or her to believe that the use of defensive force was necessary, and the reasonableness of the grounds for that belief. That may be affected by the lack of immediacy of the threat, although Courts have recognised that this will not necessarily always be the case.
Circumstances involving 'pre-emptive' activities involving the use of limited force by ASIS staff members or agents under Schedule 3 of the Act to prevent, mitigate or remove risks might include temporary stopping, detention and searching of foreign persons who are in the immediate vicinity of, or purporting to cooperate in, an ASIS activity - but in a context in which a prudent intelligence agency would take reasonable steps to ensure continued safety of its personnel and integrity of the operation such as undertaking a search for physical threats (e.g. hidden weapons) or technical threats (e.g. electronic communications devices) that would seriously jeopardise the safety and security of an operation. The 'immediacy' of the risks and threats and when they crystallise may not always be apparent, although such matters, if undetected, have a real prospect of increasing attention from persons who may wish to do harm to the ASIS officers and also potentially causing long-term harm to Australia's national interests. The inclusion of additional words of limitation, such as "immediate risks or threats" may not be helpful in such instances. This is because such a requirement risks leaving a problem to escalate to a point where greater force would be required to address what due to the delay in responding would now be an immediate threat of harm to the staff member or agent or a colleague or other protected person.
ASIS activities are intentionally clandestine in nature and/ or very 'low key' and, in the case of activities undertaken pursuant to Schedule 3 of the Act only take place after rigorous internal operational approvals and as approved by the Minister following consultation with the Prime Minister, Attorney-General, Defence Minister and other relevant Ministers.
I note the Parliamentary Joint Committee on Intelligence and Security (PJCIS) exists to examine legislation that relates to the performance by ASIS of its functions in a context where classified information may be disclosed to it. The PJCIS did not recommend the inclusion of provisions as the Committee contemplates in the digest.
As such, I do not believe that the Act requires further amendment to specify that pre-emptive force may only be used to address 'immediate' risks or threats.
However, as the Minister responsible for ASIS, I share and respect the Committee's perspective in ensuring appropriate rigour and oversight of the activities of ASIS and I will, as the Minister responsible for ASIS continue to ensure that its legislative framework remains balanced and that all its activities are proportionate, necessary and that the nature and consequences of ASIS operations remain reasonable. In particular, I have asked ASIS to have regard to the committee's comments in the development of the new guidelines for the use of force.

Committee comment

2.44 The committee thanks the minister for this response, and notes the minister's advice that 'operational security', in the context of the bill, relates to the secrecy of the purpose of ASIS activities and the fact of ASIS involvement. The committee also notes the minister's advice that the use or threat of force will only be permitted where there is a significant risk to the integrity of ASIS operations, would need to be reasonable and necessary in order to protect ASIS officers or to protect the integrity of an operation of significance to Australia's national interests, and would not be permitted in routine ASIS activities.

2.45 The committee also notes the minister's advice that 'reasonable and necessary' force may be used to restrain, control or compel a person. For example, force may be used to temporarily restrain a person who is uncooperative, or to seize a communications device which is likely to be used to alert others to an operation. The committee also notes the advice that the Intelligence Services Act 2001 (Intelligence Act) does not permit ASIS staff or agents to use force beyond what is permitted under the common law, and that the use of force would be subject to a rigorous approvals process.

2.46 The committee further notes the minister's advice that pre-emptive force might be used to temporarily stop, detain or search a foreign person who is in the immediate vicinity of, or purporting to cooperate with, an ASIS activity, in a context where a prudent intelligence agency would take reasonable steps to ensure the safety of its personnel and the integrity of its operation. The committee notes the minister's advice that the 'immediacy' of risks and threats and when they manifest might not always be apparent, and so including additional words of limitation to the power to use force may risk allowing a problem to escalate to a point at which greater force may be required.

2.47 The committee appreciates that it may not be possible to proscribe the specific circumstances in which force may be used to safeguard operational security, and acknowledges that the use of force would be subject to internal controls. Nevertheless, without further information, the circumstances in which force may be used to safeguard operational security remain unclear. The committee therefore reiterates its concerns regarding the breath of the relevant powers.

2.48 The committee also notes that the bill passed both Houses of Parliament within four sitting days of its introduction.^[30] In this respect, and noting the significance of the matters to which the bill relates, the committee is concerned that the bill may not have been subject to sufficient parliamentary oversight.

2.49 However, in light of the fact that the bill has already passed both Houses of Parliament, the committee makes no further comment on this matter.

Significant matters in non-statutory guidelines^[31]

2.50 In Scrutiny Digest 15 of 2018 the committee requested 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.

2.51 The committee also requested 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 (Legislation Act)), with compliance with those obligations a condition of the validity of the guidelines.^[32]

Minister's response

2.52 The minister advised:

The ASIS Guidelines on the Use of Force and Self Defence Techniques have been in place since 2004 when the Act was amended to permit ASIS to engage in training in and the provision of weapons and equipment for the purposes of protection for ASIS staff members and agents.
They were originally drafted in close consultation with the Australian Government Solicitor and originally based on similar rules of engagement by the Australian Federal Police (Commissioner's Orders). They were initially approved by the National Security Committee of Cabinet.
The existing use of force Guidelines issued by the Director-General under Schedule 2 and the new guidelines to be issued under Schedule 3 of the Act necessarily contain a significant amount of sensitive and classified detail concerning ASIS's internal structure and positions as well as contextual details concerning methods of carriage of different types of weapons, locations and types of operations. These are not matters that can be disclosed publicly as part of disallowable instrument processes without jeopardising Australia's national security. I do not consider it appropriate that they be made by disallowable legislative instrument.
The type of consultation envisaged for amendments to the guidelines includes consultation with the Australian Government Solicitor and the policy divisions of the Attorney-General's Department (taking into account domestic and international law considerations) as well as the Office of the Inspector-General of Intelligence and Security. I note that under the Act, the IGIS must brief the PJCIS on the content and effect of the Guidelines if the Committee requests it or if the guidelines change. As part of the amendments this briefing of the PJCIS will extend for the first time to include the ASIS Guidelines on the Use of Force and Self Defence Techniques which have been in place since 2004. The Department of Foreign Affairs and Trade will also have visibility through the normal Ministerial submission process.
I consider these bodies to be the most appropriate and reasonably practicable entities for the purpose of consultation consistent with section 17 of the Legislation Act 2003. In assessing that the guidelines would not be characterised as legislative instruments ASIS relied upon advice from the Administrative Law Section in the Attorney-General's Department. This advice was reflected in the Explanatory Memorandum.

Committee comment

2.53 The committee thanks the minister for this response. The committee notes the minister's advice that the use of force guidelines necessarily contain a significant amount of classified detail and these matters cannot be disclosed publicly as part of disallowable instrument processes without jeopardising Australia's national security.

2.54 The committee also notes the minister's advice that, before making the guidelines, consultation will take place with the Australian Government Solicitor, the Attorney-General's Department and the Office of the Inspector-General of Intelligence and Security (IGIS). The committee further notes the advice that, under the Intelligence Act, the IGIS must brief the Parliamentary Joint Committee on Intelligence and Security on the use of force guidelines on request or if the guidelines change, and the advice that the Department of Foreign Affairs and Trade would be involved in the guidelines' development.

2.55 While noting this advice, the committee remains concerned that the guidelines may not be subject to an appropriate level of parliamentary oversight. For example, as the guidelines would not be a legislative instrument, they would not be subject to technical scrutiny by the Senate Standing Committee on Regulations and Ordinances or assessed for compatibility with human rights law by the Parliamentary Joint Committee on Human Rights. Moreover, while the consultation envisaged by paragraph [2.54] above may be sufficient for the purposes of the Legislation Act, there is no requirement that consultation be undertaken before guidelines are made.

2.56 However, in light of the fact that the bill has already passed both Houses of Parliament, the committee makes no further comment on this matter.

2.1

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[27] 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).

[28] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2018, pp. 21-22.

[29] The minister responded to the committee's comments in a letter dated 21 January 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

[30] The bill was introduced in the House of Representatives on 29 November 2018. It passed both Houses of Parliament on 5 December 2018.

[31] 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).

[32] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2018, pp. 23-24.