Warning over new spy laws

Jamie Fellows is a law lecturer at JCU. He said ASIS is the arm of government tasked with collecting foreign intelligence.

“It was severely limited in its activities following the embarrassment of a botched training exercise in 1983 which saw Melbourne hotel staff threatened with automatic weapons and ASIS agents arrested by police,” he said.

The government of the day prohibited ASIS staff from carrying firearms and from conducting certain types of covert activities relating to ‘special operations or special political action’, specifically including paramilitary activity in foreign countries.

“The overall result has been a significant limitation on the operational scope and modus operandi of ASIS for many years – until now,” said Mr Fellows.

He said amendments to the Intelligence Services Act 2001 in 2018 are part of a general liberalisation of laws covering intelligence services since the attacks of September 11, 2001, and were designed to provide ASIS agents with protection from Australian criminal prosecution when using force overseas under certain circumstances.

“I believe that despite new and existing oversight provisions, the amendments allow pre-emptive use of force that could potentially be used to justify carrying out extraterritorial killings of Australians and foreign nationals,” said Mr Fellows.

The amendments give ASIS agents overseas new powers to use weapons, self-defence techniques and reasonable force to protect people and carry out security operations.

“Nothing in the legislation excludes the use of automatic weapons or even explosives. Nothing in the amendment provides any indication as to what would constitute ‘reasonable and necessary force’ and no other guidance was given in relation to this matter by those who spoke on behalf of the Bill in Parliament,” he said.

He said guidelines will be provided to agents, but what they are is secret.

Mr Fellows said violence was sometimes necessary in the course of intelligence operations but the current reporting and oversight of it was too opaque, potentially leading to abuses.

“There is enhanced oversight with the new laws, but no person other than those allowed by legislation will ever be aware of the nature and extent of any force used.  Ministers and their functionaries are  in the position of acting as investigators, prosecutors, defence advocates, judges, juries, and potentially, executioners, all at the same time,” he said.