The Australian Secret Intelligence Service (ASIS) & International Criminal Law

History of the ASIS

The Australian Secret Intelligence Service (ASIS) was established on May 13 1952, as a collector of foreign intelligence, primarily in the Asia-Pacific region.

For over twenty years, the existence of ASIS remained a secret, even from members of the Australian Government. The Service was first referred to in Parliament in 1975 and was not publicly acknowledged until 1977.

Based on a recommendation by a Commission of Inquiry in 1995, the Intelligence Services Act was effected in 2001, providing a legislative framework for ASIS and publicising its functions for the first time.

Today, ASIS is a part of the Foreign Affairs portfolio and is responsible to the Minister for Foreign Affairs.

 

Functions and Goals

ASIS’s primary goal is to obtain and distribute secret intelligence about the capabilities, intentions and activities of individuals or organisations outside Australia, which may impact on Australia’s interests and the well-being of its citizens.

The ASIS functions as set out in the Intelligence Services Act 2001 are to:

  • Collect foreign intelligence, not available by other means, which may impact on Australia’s interests;
  • Distribute that intelligence to the Government, including key policy departments and agencies;
  • Undertake counter-intelligence activities which protect Australia’s interests and initiatives; and,
  • Engage other intelligence and security services overseas in Australia’s national interests.

Due to the growing number and diverse nature of threats facing Australia and its citizens, the Australian Government relies on ASIS to perform complex intelligence work to assist in:

 

Recent Developments

The Intelligence Services Act provides that ASIS officers are issued with weapons which they are able to use to for self-protection, or to protect fellow ASIS officers as part of a mission.

On Thursday 29th November, new laws were proposed in Parliament to allow ASIS staff to use “reasonable force” during their overseas missions to protect other parties such as hostages.

Foreign Minister Marise Payne said the new powers were needed because ASIS officers “often work in dangerous locations, including under warlike conditions, to protect Australia and our interests”.

The Intelligence Services Act provisions relating to the use of force by ASIS have not undergone significant amendment since 2004. In response to the increasingly complex overseas operating environment for ASIS, the Intelligence Services Amendment Bill 2018 was introduced to:

  • Enable the Minister to specify additional persons, such as a hostage, who may be protected by an ASIS staff member or agent, and
  • Allow an ASIS staff member or agent performing specified activities outside Australia to be able to use reasonable force in the course of their duties.

The changes will mean officers are able to protect a broader range of people and use reasonable force if someone poses a risk to an operation.

The sharing of intelligence across borders can raise potential human rights threats. Nyman Gibson Miralis specialise in international criminal law, and protecting the rights of those subject to investigations by key Australian and International law enforcement agencies. Contact us if you require assistance.