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2004
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
AUSTRALIAN SECURITY INTELLIGENCE
ORGANISATION AMENDMENT BILL 2004
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable Philip Ruddock MP)
AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION AMENDMENT BILL 2004
GENERAL OUTLINE
The Australian Security Intelligence
Organisation Amendment Bill 2004 (the Bill) amends the Australian Security
Intelligence Organisation Act 1979 (the Act) to expand and clarify the
ability of the Australian Security Intelligence Organisation (ASIO) to furnish
security assessments.
The need for these amendments has arisen in the
context of the regulation of ammonium nitrate. In December 2002, the Council of
Australian Governments (COAG) agreed to a national review of the regulation,
reporting and security around the storage, sale and handling of hazardous
materials, including ammonium nitrate. Ammonium nitrate was given priority as a
hazardous substance because of its history of use by terrorists and its ready
availability to the general public.
On 25 June 2004 COAG agreed on
a national approach to ban access to ammonium nitrate for other than
specifically authorised users. The agreement will result in the establishment
in each jurisdiction of a licensing regime for the use, manufacture, storage,
transport, supply, import and export of ammonium nitrate. The licensing regime
will ensure that ammonium nitrate is only accessible to persons who have a
demonstrated legitimate need for the product, are not of security concern and
will store and handle the product safely and securely.
The licensing
regime requires ASIO to furnish security assessments for the States and
Territories. The existing provisions of the ASIO Act restrict ASIO’s
ability to provide security assessments under the licensing regime. ASIO can
currently furnish security assessments to assist the States and Territories in
controlling access to the places where ammonium nitrate is stored. (Section 35
of the Act covers access by a person to any information or place
where the access is controlled on security grounds) However, controlling
ammonium nitrate effectively requires more than controlling access to the place
of storage. It requires controlling the ability to perform a range of
activities in relation to or involving ammonium nitrate, such as purchasing,
supplying, importing, exporting, possessing, handling, using, storing, guarding,
transporting, manufacturing, disposing or any other activity in relation to, or
involving, ammonium nitrate if that ability is controlled or limited on security
grounds. The Bill amends the Act to underpin better ASIO’s power to
furnish assessments in relation to ammonium nitrate.
Whilst the
proposed amendments have arisen as a result of discussions about controlling
access to ammonium nitrate, the amendments are intended to be sufficiently broad
to cover, to the extent that is possible, issues that may arise in the future,
for example other hazardous materials to which access is controlled or limited
on security grounds.
Financial impact
The Bill is not
expected to have a direct financial impact.
NOTES ON
CLAUSES
Clause 1: Short title
This clause is a formal
provision stating the short title of the Act.
Clause 2:
Commencement
This clause states that the Act commences on Royal
Assent.
Clause 3: Schedule(s)
This clause provides that
each Act specified in a Schedule to the Act is amended or repealed as set out in
the Schedule concerned and any other item in a Schedule has effect according to
its terms.
Schedule 1 – Amendment of the Australian Security
Intelligence Organisation Act 1979
This Schedule sets out the
amendments to be made to the Act.
Australian Security Intelligence
Organisation Act 1979
Item 1: Section 35 (paragraph (a) of the
definition of prescribed administrative action)
This item
repeals and substitutes paragraph 35(a) of the Act. The effect of this
amendment is to expand the definition of prescribed administrative action
to include a person’s ability to perform an activity in relation to, or
involving, a thing, other than information or a place, if the person’s
ability to conduct that activity is controlled or limited on security
grounds.
Whilst the Act currently defines prescribed administrative
action with reference to the broad terms of ‘information’ and
‘place’, this definition is not sufficiently broad to cover the
range of activities that a person may perform in relation to, or involving, a
thing that is not information or a place. For example, whilst the Act covers
access to places where ammonium nitrate is stored, it does not, to the extent
that they are not linked to access to a ‘place’, cover other
activities such as purchasing, supplying, importing, exporting, possessing,
handling, using, storing, guarding, transporting, manufacturing, disposing and
any other activity in relation to, or involving, ammonium nitrate if a
person’s ability to perform that activity is controlled or limited on
security grounds.
The term ‘thing (other than information or a
place)’ is used because it is important that there be appropriate
flexibility within the Act, particularly in a changing security environment.
This amendment is consistent with the approach in the rest of the definition of
prescribed administrative action. As with ‘information’ and
‘place’, the term ‘thing (other than information or a
place)’ is limited by the rest of the definition, which requires a
person’s ability to perform an activity in relation to or involving a
thing to be controlled or limited on security grounds.
Item 2:
Subsection 36(1)
This item makes a technical correction to remove a
reference to subsection (1) where the section no longer contains any
subsections.
Item 3: Subsection 39(2)
This item
repeals and substitutes subsection 39(2) of the Act. It is consequential
on item 1. The effect of this amendment is to expand the types of temporary
action that a Commonwealth agency may take as a matter of urgency where, on the
basis of a preliminary communication by ASIO, the agency is satisfied that such
action is required for security reasons pending the furnishing of an assessment
by ASIO. Specifically, the Bill enables a Commonwealth agency to take action in
these circumstances to prevent a person from performing an activity in relation
to, or involving, a thing, other than information or a place, if the
person’s ability to perform that activity is controlled or limited on
security grounds. Depending on the thing involved, such activities may include
purchasing, supplying, importing, exporting, possessing, handling, using,
storing, guarding, transporting, manufacturing, disposing and any other activity
in relation to, or involving, a thing.
Item 4: Subsection
61(1)
This item makes a technical correction to remove a reference to
subsection (1) where the section no longer contains any subsections.