Intelligence Services Amendment Act 2004

Administered by Attorney-General's Department

Legislation au C2004A01291 In force Act

Legislation content

 

 

 

 

 

 

Intelligence Services Amendment Act 2004

 

No. 57, 2004

 

 

 

 

 

An Act to amend the Intelligence Services Act 2001, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Functions of ASIS

Intelligence Services Act 2001

 

 

 

Intelligence Services Amendment Act 2004

No. 57, 2004

 

 

 

An Act to amend the Intelligence Services Act 2001, and for related purposes

[Assented to 27 April 2004]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Intelligence Services Amendment Act 2004.

2  Commencement

  This Act commences on the day on which it receives the Royal Assent.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Functions of ASIS

 

Intelligence Services Act 2001

1  At the end of subsection 6(3)

Add:

Note: If the Minister gives a direction under paragraph (1)(e), the Minister must give a copy of the direction to the Inspector‑General of Intelligence and Security as soon as practicable after the direction is given to the head of ASIS (see section 32B of the Inspector‑General of Intelligence and Security Act 1986).

2  Subsection 6(4)

Repeal the subsection (including the notes), substitute:

 (4) In performing its functions, ASIS must not plan for, or undertake, activities that involve:

 (a) paramilitary activities; or

 (b) violence against the person; or

 (c) the use of weapons;

by staff members or agents of ASIS.

Note 1: This subsection does not prevent ASIS from being involved with the planning or undertaking of activities covered by paragraphs (a) to (c) by other organisations provided that staff members or agents of ASIS do not undertake those activities.

Note 2: For other limits on the agency’s functions and activities see sections 11 and 12.

Note 3: For paramilitary activities see section 3.

 (5) Subsection (4) does not prevent:

 (a) the provision of weapons, or training in the use of weapons or in self‑defence techniques, in accordance with Schedule 2; or

 (b) the use of weapons or self‑defence techniques in accordance with Schedule 2.

 (6) ASIS must not provide weapons, or training in the use of weapons or in self‑defence techniques, other than in accordance with Schedule 2.

2A  After subsection 13(1)

Insert:

 (1A) However, an approval under paragraph (1)(c) does not enable ASIS to cooperate with an authority of another country in planning or undertaking activities covered by paragraphs 6(4)(a) to (c) unless, before giving the approval, the Minister consults with the Prime Minister and the Attorney‑General.

2B  At the end of section 42

Add:

 (2) The report must include information about any cooperation by ASIS with an authority of another country in planning or undertaking activities covered by paragraphs 6(4)(a) to (c). The report must set out the number of occasions on which such cooperation occurred and the broad nature of each cooperation.

3  At the end of the Act

Add:

Schedule 2—Limits on provision of weapons, training etc.

 

 

1  Provision of weapons, training etc.

 (1) The provision of a weapon, or training in the use of a weapon or in self‑defence techniques, is not prevented by subsection 6(4) if it is provided:

 (a) to a person who is a staff member or agent of ASIS; and

 (b) for the purpose of enabling the person:

 (i) to protect himself or herself; or

 (ii) to protect a staff member or agent of ASIS; or

 (iii) to protect a person who is co‑operating with ASIS in accordance with section 13; or

 (iv) to provide training to staff members or agents of ASIS; and

 (c) in accordance with a Ministerial approval given under subclause (3).

 (2) The use of a weapon or self‑defence techniques is not prevented by subsection 6(4) if:

 (a) the weapon or techniques are used:

 (i) for a purpose covered by paragraph (1)(b); or

 (ii) in training in accordance with subclause (1); and

 (b) in a case covered by any of subparagraphs (1)(b)(i) to (iii)—the weapon or techniques are used outside Australia; and

 (c) guidelines have been issued by the Director‑General under subclause (6); and

 (d) the weapon or techniques are used in compliance with those guidelines.

 (3) The Minister may, by written notice given to the Director‑General, approve the provision of a weapon, or training in the use of a weapon or in self‑defence techniques, to:

 (a) a specified staff member or agent of ASIS; or

 (b) the holder of a specified position in ASIS.

 (4) An approval for the provision of a weapon or training must specify:

 (a) the purpose for which the weapon or training is provided; and

 (b) any conditions that must be complied with in relation to the provision of the weapon or training; and

 (c) if the approval is for the provision of a weapon or training in the use of a weapon—the kind or class of weapon involved.

 (5) As soon as practicable after giving the Director‑General an approval, the Minister must give the Inspector‑General of Intelligence and Security a copy of the approval.

 (6) The Director‑General must issue guidelines for the purposes of this Schedule on matters related to the use of weapons and self‑defence techniques.

 (7) As soon as practicable after making the guidelines, the Director‑General must give the Inspector‑General of Intelligence and Security a copy of the guidelines.

2  Application of certain State and Territory laws

  A staff member or agent of ASIS is not required under, or by reason of, a law of a State or Territory:

 (a) to obtain or have a licence or permission for doing any act or thing in accordance with clause 1; or

 (b) to register any weapon provided in accordance with clause 1.

3  Reports to Inspector‑General of Intelligence and Security

  If:

 (a) a staff member or agent of ASIS uses a weapon for a purpose mentioned in any of subparagraphs 1(1)(b)(i) to (iii); and

 (b) during that use the weapon is discharged;

the Director‑General must, as soon as practicable, give to the Inspector‑General of Intelligence and Security a written report of the discharge which explains the circumstances in which the discharge occurred.

 

 

 

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 15 October 2003

Senate on 31 March 2004]

 

 

 

 

 

 

 

(164/03)

 

 

 

 

Overview

The Intelligence Services Amendment Act 2004, assented to on 27 April 2004 by the Parliament of Australia, was enacted to amend the Intelligence Services Act 2001, primarily to refine the functions and limitations of the Australian Security Intelligence Service (ASIS) in relation to the provision and use of weapons and the involvement in paramilitary activities, violence against persons, and other specific activities. This amendment was aimed at ensuring that ASIS operates within clearly defined boundaries to maintain the integrity and legality of its operations, while also enhancing oversight and accountability mechanisms. The Act introduces provisions that restrict ASIS from planning or undertaking activities involving paramilitary actions, violence, or the use of weapons by its staff members or agents, with certain exceptions governed by Ministerial approval and specific guidelines issued by the Director-General. These amendments also address the reporting requirements to the Inspector-General of Intelligence and Security, ensuring transparency in ASIS's activities, particularly concerning the use of weapons and cooperation with foreign authorities.

Scope and Application

The Intelligence Services Amendment Act 2004 amends the Intelligence Services Act 2001, and its primary focus is on the functions and activities of the Australian Security Intelligence Organisation (ASIO). This Act applies to ASIO and its staff members and agents, specifically regulating their involvement in certain activities and the use of weapons. The Act's provisions extend to the Commonwealth of Australia, meaning it applies nationally. Importantly, it restricts ASIO from engaging in or planning paramilitary activities, violence against persons, or using weapons, except under specific conditions outlined in the Act. Additionally, it mandates that any cooperation with foreign authorities concerning restricted activities must be approved by the Minister and requires consultation with the Prime Minister and the Attorney-General. The Act also includes provisions for the provision of weapons and training under strict guidelines, ensuring such activities are only undertaken for specific purposes and with necessary approvals. Notably, it exempts ASIO staff and agents from state and territory laws that might otherwise require licenses or registration for these activities. The Act further stipulates that reports on the discharge of weapons must be submitted to the Inspector-General of Intelligence and Security.

Key Provisions

The Intelligence Services Amendment Act 2004 (C2004A01291) amends the Intelligence Services Act 2001 (ISA) to impose stricter limitations on the activities of the Australian Security Intelligence Organisation (ASIO). Under section 1, ASIO is explicitly prohibited from planning or undertaking activities that involve paramilitary actions, violence against individuals, or the use of weapons by its staff or agents. However, this prohibition does not extend to activities conducted by other organisations, provided ASIO personnel do not participate in those activities directly. Exceptions are made for the provision and training in the use of weapons and self-defence techniques, which are permitted under strict conditions outlined in Schedule 2. Approval from the Minister for these activities must be obtained, and the use of such weapons or techniques must comply with guidelines issued by the Director-General. Furthermore, any cooperation with foreign authorities in activities restricted by these provisions requires consultation with the Prime Minister and the Attorney-General, as stipulated in section 2A. The Act imposes several obligations on ASIO and its personnel. For instance, ASIO must not provide weapons or training in their use or self-defence techniques unless approved by the Minister and in compliance with Schedule 2 (section 2(6)). The Minister must also ensure that any such approvals are communicated to the Inspector-General of Intelligence and Security (IGIS) (section 2(5)). Additionally, the Director-General is required to issue guidelines governing the use of weapons and self-defence techniques, which must also be reported to the IGIS (section 2(6) and (7)). Annual reports on ASIO's activities must include details of any cooperation with foreign authorities in restricted activities (section 2B). Failure to comply with the provisions of the Act may result in significant legal consequences. For example, unauthorised use of weapons by ASIO personnel can lead to criminal liability and penalties under existing laws. Moreover, the Act does not explicitly outline penalties for its specific provisions, but breaches of related provisions in the ISA or Inspector-General of Intelligence and Security Act 1986 could incur substantial fines and imprisonment. The overarching aim is to ensure that ASIO operates within clearly defined parameters, with robust oversight and accountability mechanisms to prevent misuse of its powers.

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