The Government introduced the Intelligence Services Amendment Bill 2018 on 29 November 2018. The Bill is being considered by the Parliamentary Joint Committee on Intelligence and Security and is listed for debate in both Houses of Parliament this week. The key amendments in the Bill include allowing:

• the Minister for Foreign Affairs to specify additional persons (or classes of persons) who may be protected by Australian Secret Intelligence Service (ASIS) staff members and agents outside Australia under Schedule 2 to the Intelligence Services Act 2001 (ISA) (which provides for limited provision of weapons, and use of and training in the use of weapons and self-defence techniques) and
• ASIS staff members and agents, to use force (including the use of a weapon) outside Australia in certain circumstances, under approvals given by the Minister for Foreign Affairs.

Previous and current restrictions on ASIS’s use of weapons and self-defence techniques

Termination of the use of weapons following the Sheraton Hotel incident

ASIS’s use of weapons was terminated in response to a recommendation of the Royal Commission on Australia’s Security and Intelligence Agencies (the ‘second Hope Royal Commission’). The Royal Commission was established in May 1983 to review Australia’s security and intelligence agencies, including their activities and some specific matters. Following what has come to be known as the ‘Sheraton Hotel incident’, that incident was added to the Royal Commission’s terms of reference.

The Sheraton Hotel incident refers to a botched training exercise in November 1983 involving junior ASIS officers who were given considerable leeway in planning and executing the exercise. The exercise was to be a mock surveillance and hostage rescue of foreign intelligence officers from Melbourne’s Sheraton Hotel. However, ASIS failed to inform hotel staff or local authorities of the exercise, and during its execution, the trainees used considerable force, brandished military-style weapons, caused distress to a number of staff and guests and physically assaulted the hotel manager. The ASIS team fled and several members were arrested.

The February 1984 report of the Royal Commission on the incident recommended that ‘no ASIS officer, trainee or agent be permitted to carry any type of firearms in any public place in Australia’. The then prime minister, Bob Hawke, stated in May 1985 that the use of weapons by ASIS had been terminated, and its stocks of weapons had been disposed of.

Intelligence Services Act 2001

The restriction on the use of weapons was maintained when ASIS was brought under statute in 2001, with subsection 6(4) of the ISA as originally enacted providing that in performing its functions, ‘ASIS must not plan for, or undertake, paramilitary activities or activities involving violence against the person or the use of weapons’.

2004 amendments

Amendments to the ISA in 2004 enabled ASIS staff members and agents to be trained in, and equipped with, weapons and self-defence techniques for the purposes of self-defence and the defence of fellow officers and others ‘cooperating with ASIS’, under authorisation of the Minister for Foreign Affairs. Schedule 2 was inserted into the ISA, and requires that ASIS provides the Inspector-General of Intelligence and Security (IGIS) with copies of all approvals issued by the Minister authorising the provision of weapons and training in the use of weapons or self-defence techniques, and a written report detailing the circumstances in which an ASIS officer discharges a firearm other than during training.

The then Minister for Foreign Affairs, Alexander Downer, explained when introducing the amendments that since the enactment of the ISA in 2001:

... the aftermath of the tragic events of 11 September 2001, and the Bali bombing on 12 October 2002, have contributed to a fundamental change in the environments in which ASIS must work. These changes could not have been predicted at the time the act was prepared. As a result, this amendment bill is now required to allow ASIS to provide more adequately for the protection of its staff members and agents, and to enable it to work more closely with other agencies. It is important to note, however, the bill retains the restraint on ASIS undertaking in its own right activities involving the use of force, including use of weapons, other than for the limited purposes of protection. ASIS will continue to conduct its activities in a non-violent way.

See further the relevant Bills Digest and the report of the Parliamentary Joint Committee on ASIO, ASIS and DSD.

ASIS’s compliance with current requirements

In 2013, the IGIS completed an inquiry into the provision of weapons and the training in and use of weapons and self-defence techniques by ASIS and published an unclassified executive summary of the report in November of that year. The IGIS found that overall, ASIS had ‘managed the training in and use of weapons and self-defence techniques well’. The IGIS identified two breaches of the ISA, both of which involved the discharge of a firearm without appropriate prior approval and were reported to the IGIS by ASIS when they occurred. The IGIS further stated:

A review of other weapons-related incidents since 2004 did not reveal any serious systemic issues, although there were a number of breaches of the ASIS Guidelines for the Use of Weapons and Self-Defence Techniques, which are issued in accordance with the ISA.

The IGIS’s 2013–14 Annual Report noted that in December 2013, ‘a further more serious incident occurred overseas involving an allegedly inappropriate action by an officer of another Australian government agency towards an ASIS officer’. The IGIS reported that ASIS’s investigation of the incident ‘highlighted systemic issues’, prompting the IGIS to initiate a further inquiry into ASIS’s management of weapons at that location (reported to be Afghanistan). The IGIS’s 2014–15 Annual Report acknowledged the inquiry, stated that ASIS had agreed to all 13 recommendations, and stated that the IGIS ‘was satisfied that senior management had taken actions that demonstrated a strong commitment to reform’. The IGIS declined to provide further details on the grounds that doing so could ‘prejudice security or Australia’s relations with other countries’.

The IGIS has since reported that:

• there were no breaches of the ISA or the Guidelines for the Use of Weapons and Self-Defence Techniques (the Guidelines) identified for 2014–15, but an investigation that year identified a breach of the Guidelines from several years earlier (relating to the appointment of an external training provider without proper approval) (p. 35)
• there were no breaches identified in 2015–16 (pp. 26–27)
• two breaches of the Guidelines were identified in 2016–17 (one involving transport of a weapon without proper authority; the second relating to officers purchasing pepper spray contrary to policies and procedures) (p. 27) and
• ASIS reported three weapons-related incidents to the IGIS in 2017–18 (p. 32). Two involved non-compliance with procedures; one was ‘an administrative oversight rather than an operational incident or breach of legislation’; the other occurred ‘when ADF and ASIS personnel conducted joint weapons-related training prior to formal exchange of letters approving the training’. The third involved the accidental discharge of a firearm during a training session (that did not result in injury or damage to property).

Key amendments proposed

The general prohibition on ASIS planning or undertaking activities involving ASIS staff members or agents engaging in paramilitary activities, or activities involving violence against persons or the use of weapons, will remain in place (see subsection 6(4) of the ISA). However, the limited exceptions relating to the use of violence and weapons will be expanded. The Minister for Foreign Affairs explained:

Our ASIS officers often work in dangerous locations, including under warlike conditions, to protect Australia and our interests. As the world becomes more complex, the overseas operating environment for ASIS also becomes more complex. The Intelligence Services Act provisions relating to the use of force by ASIS have not undergone significant amendment since 2004, while successive governments have asked ASIS to do more in response to national security priorities, in new places and in new circumstances unforeseen 14 years ago.

In his second reading speech, the Minister for Families and Social Services (representing the Minister for Foreign Affairs in the House of Representatives) stated:

ASIS does not have, nor is it seeking, an offensive armed capability.

Lethal force may currently only be used as a last resort to protect an ASIS officer or protected person from serious harm or death. This will not change.

Use of weapons and self-defence techniques to protect additional persons outside Australia

Under the ISA, ASIS staff members and agents may use weapons and self-defence techniques outside Australia to protect themselves, another ASIS staff member or agent, or a person cooperating with ASIS under section 13 of the ISA (under which ASIS may cooperate with Australian and approved overseas authorities in the performance of its functions). The Bill (items 6 and 8 of Schedule 1) will amend Schedule 2 to the ISA to permit the Minister for Foreign Affairs to specify additional persons (or classes of persons) whom ASIS staff members and agents may use weapons and self-defence techniques to protect while outside Australia. The Minister for Families and Social Services stated that this:

… will address a legal uncertainty ... in the ability of an ASIS staff member to be compliant with the [A]ct when defending certain other persons including bystanders, and to train for the use of force in those circumstances.

Use of force

Proposed subsection 6(5A) of the ISA and proposed Schedule 3 to the ISA will allow ASIS staff members and agents to use force (including the use of a weapon) and threats of force against persons outside Australia, in accordance with approvals given by the Minister for Foreign Affairs and guidelines to be issued by the Director-General of ASIS. The use of force will only be permitted for the purposes of preventing, mitigating or removing: a significant risk to a person’s safety, a significant threat to security (within the meaning of paragraphs (a) and (aa) of the definition of security in the Australian Security Intelligence Organisation Act 1979), or ‘a significant risk to the operational security of ASIS from interference by a foreign person or entity’. The reporting requirements are similar to those imposed under Schedule 2 to the ISA. The Minister for Families and Social Services stated that this:

… will address several grey areas in the use of force under the Intelligence Services Act, particularly the use of reasonable and limited force to restrain, detain or move an individual who may pose a risk of the compromise of an operation, or where a staff member anticipates a possible safety risk.

Key safeguards and oversight

ASIS’s use of weapons and self-defence techniques will continue to be overseen by the IGIS. ASIS’s use of force against persons outside Australia will also be overseen by the IGIS, who was consulted on the development of the Bill.

To approve the use of force, the Minister for Foreign Affairs will need to be satisfied that arrangements are in place to ensure that the use of force will be reasonable and that force will be used only to the extent necessary for the purposes for which the approval is given. The Minister must review all approvals in force as soon as practicable after the end of each financial year, and if appropriate, amend or revoke them.

Proposed subsection 6(5B) will provide that nothing in subsection 6(5) (to which Schedule 2 to the ISA relates) or proposed subsection 6(5A) (to which proposed Schedule 3 to the ISA relates) permits conduct that would constitute torture, subject a person to inhuman or degrading treatment, or involve the commission of a sexual offence; or be likely to cause death or grievous bodily harm (except where it is believed on reasonable grounds to be necessary to protect the life or prevent serious injury to another person).