Foreign Affairs Portfolio Miscellaneous Measures Act 2013

Overview

The Foreign Affairs Portfolio Miscellaneous Measures Act 2013 was enacted to address specific legislative gaps and issues within the existing frameworks of the Intelligence Services Act 2001 and the Work Health and Safety Act 2011. Passed by the Parliament of Australia and assented to on 28 May 2013, this Act aims to make targeted amendments to these Acts, ensuring that they are better aligned with the operational needs of the Australian Secret Intelligence Service (ASIS) and the broader objectives of national security. One of the primary objectives, as articulated in the Minister's second reading speeches, is to facilitate smoother transitions for ASIS employees within the Australian Public Service (APS) while ensuring that the operational flexibility of ASIS is maintained in a manner consistent with national security imperatives. The Act also seeks to provide the Director-General of ASIS with the authority to declare specific provisions of the Work Health and Safety Act 2011 inapplicable or modified for certain activities, thereby allowing for the necessary operational adjustments required by ASIS.

Scope and Application

The Foreign Affairs Portfolio Miscellaneous Measures Act 2013 is a legislative instrument that amends the Intelligence Services Act 2001 and the Work Health and Safety Act 2011, and provides for related purposes. The Act applies to the Australian Secret Intelligence Service (ASIS) and the Director-General of ASIS, as well as any employees of ASIS who may move to an Australian Public Service (APS) Agency. The Act also applies to any person carrying out work for the Director-General of ASIS. The geographic reach of the Act is national, as it applies to ASIS and its employees throughout Australia. However, the Act includes specific exclusions and exemptions, such as the ability for the Director-General of ASIS to declare that certain provisions of the Work Health and Safety Act 2011 do not apply, or apply subject to modifications, in relation to a person carrying out work for the Director-General of ASIS. The Act may be extended or restricted through subordinate instruments, such as regulations or guidelines, issued by the relevant authorities. Overall, the Foreign Affairs Portfolio Miscellaneous Measures Act 2013 seeks to provide a framework for the administration of ASIS and the protection of national security, while also ensuring the health and safety of employees within the intelligence services sector.

Key Provisions

The Foreign Affairs Portfolio Miscellaneous Measures Act 2013 (sections 1-3) makes amendments to the Intelligence Services Act 2001 (section 3) and the Work Health and Safety Act 2011 (sections 4-6). The Act's provisions amend the definitions and operational scope of these Acts. For the Intelligence Services Act 2001, it introduces the definition of 'APS Agency' to mean an Agency within the meaning of the Public Service Act 1999 (section 3). It also provides that Section 26 of the Public Service Act 1999 applies to employees of the Australian Security Intelligence Organisation (ASIO) as if they were Australian Public Service (APS) employees and ASIO were an APS Agency (section 36A). This section ensures that employees moving to an APS Agency have their employment treated as if it were employment as an APS employee at a corresponding classification (section 36A(2)). The obligations imposed by the Act on the Director-General of ASIO are significant. They must ensure that employees moving to an APS Agency have their employment treated as if it were APS employment (section 36A(2)(a)). They must also agree on a corresponding classification with the Public Service Commissioner (section 36A(2)(b)). In relation to the Work Health and Safety Act 2011, the Director-General of ASIO is granted the power to declare by written instrument that specified provisions of the Act do not apply or apply subject to modifications to a person carrying out work for the Director-General of ASIO (section 4). This provision allows the Director-General to tailor the application of the Work Health and Safety Act 2011 to the specific needs and circumstances of ASIO's operations (section 4). The Act also imposes obligations on the Director-General of ASIO to consider the need to promote the objects of the Work Health and Safety Act 2011 to the greatest extent consistent with the maintenance of national security (section 5). The Director-General must balance the objectives of health and safety with the imperatives of national security when exercising this power (section 5). Any declaration made under this power must be consistent with these obligations (section 5). The Act provides for civil and criminal consequences for breaches of its provisions. While the Act does not explicitly state penalties for breaches, breaches of the Intelligence Services Act 2001 and the Work Health and Safety Act 2011, as amended by this Act, may attract penalties under those respective Acts. For example, under the Intelligence Services Act 2001, unauthorised disclosure of information is a criminal offence with a maximum penalty of 10 years imprisonment (section 32). Under the Work Health and Safety Act 2011, failure to comply with health and safety obligations can result in fines and imprisonment (section 34). These potential penalties underscore the importance of adhering to the Act's provisions.