Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Walk bold, hard. That’s my creed, my code… Should ASIS have its guns back?

A Bill has been introduced to amend the provisions of the Intelligence Services Act which relate to the capacity of Australia’s intelligence services to use weapons overseas.  There’s a lot to debate and query about how our intelligence services are being shaped, so of course it’s been flushed out by talk about James Bond.

The Bill will authorise certain members of the Australian Secret Intelligence Services to use force overseas in situations other than for self defence.  It surprises people to know that our intelligence services have only recently been given the authority to use weapons.  To understand the situation and to explore our intuitions, we need to go on a little bit of a history tour.  35 years ago today (November 30) at the Sheraton Hotel in Melbourne (a fifteen minute trip from where I’m currently sitting).

On the tenth floor of the hotel, a guest complained about disturbing noises.  When the hotel manager went to find out what was going on, he found himself being removed from the hotel.  So the police were called.  When they arrived, the people behind the disturbance emerged from their room, faced covered in balaclavas, brandishing machine guns, and trying to flee the police.  The antagonists in this story turned out to be ASIS.

Of course this all ended up before the courts (A v Hayden).  Justice Mason wrote of the situation:

There is an air of unreality about this stated case. It has the appearance of a Law School moot based on an episode taken from the adventures of Maxwell Smart. It features the Commonwealth in a new and somewhat unattractive role – recruiting officers to the service of ASIS, its counter-espionage organization, on the footing that their names will be kept secret for reasons of national and personal security, instructing them through superior officers to participate in a bizarre training exercise carried out at the Melbourne Sheraton Hotel which involved risks of disturbing the peace and of the commission of criminal offences

The question for our purposes is: Why did ASIS have guns in the first place?

It is important to note that the inquiry held into this (and related matters) found that the Sheraton Hotel incident was not reflective of ASIS’ professionalism or quality.  However, it was recommended that ASIS no longer be included in covert action in the form of either special operations or special political action.  These phrases are obviously euphemistic.

If ASIS’ function is in intelligence gathering, should it be permitted to use force to gather that information?

Using force overseas should be as narrow and limited as possible.  It is reasonable to think that the use of force overseas should be monopolised by our armed services rather than other branches of our government.  But ASIS is overseen by the Foreign Minister and not the Defence Minister.  This makes sense if the Foreign Minister trades in intelligence and the Defence Minister is concerned with the use of force.

This is the part that might need further unpacking.  It is analogous, on its face, of why we might think that domestic intelligence-gathering powers should be separated from the domestic use of force.  Until very recently, if ASIO wanted to raid a person’s house, they needed to be accompanied by the Australian Federal Police.  Limiting the number of people who are authorised at law to use exceptional force against you provides you with clarity about your rights and obligations when encountering authorities.  Consider the example where the parking inspector has powers of arrest vested in them.  Sure, they can issue you a fine, but if they suddenly tried to detain you for how badly you parked, would you feel entitled to resist that arrest?  With the police, there’s a general acknowledgement that they have the authority to arrest you under certain circumstances.  With a parking inspector, not so.

But maybe you’d want to give them some limited or incidental power to detain.  In Victoria, the public transport inspectors have a (very) limited power to detain you but it’s mostly in aid of assisting the police.

So we don’t have to think of it as a strict binary, but the penumbra around the use of force seems to be quite narrow.  Police have a monopoly on force, and a few others have an ability to use force in order to assist the police.

Returning to ASIS, it’s not like they’re using force in order to assist the armed forces.  It is proposed that ASIS will be supplementing their intelligence-gathering activities with personal protection actions, or even with actions for disrupting a hostage situation.  That is, they’re not getting these powers incidental to assisting a ‘police’ (or military, in this argument).

When we consider and debate the Bill, we should have in mind some principle of how we want the government to structure its use of force.  We might reject the framework that I’ve outlined above but, if we do so, we risk ending up with a scenario where the State’s ability to use force becomes unmanageable and unable to be monitored.

What throws everything sideways is the nature of the statutory provisions.  The Australian Intelligence Community (AIC) has an interest in preserving the confidence and trust of the public by complying with Australian legislation even if it is technically or practically unenforceable.  This is why the Strickland decision is such a massive deal: the Australian Criminal Intelligence Commission threatened the confidence and trust by colluding with the AFP to get around rules of evidence.  The AIC needs to demonstrate and affirm that it is constrained by democratic control, through compliance both with ministerial instructions and with legislation passed by parliament.

There’s a reason for this.  This legislation does not provide a legal basis for members of ASIS to use force overseas.  That is, if a member of ASIS is carrying a concealed weapon in Markistan, a country which has very strict rules against carrying concealed weapons, the Australian legislation will not provide ASIS with a legal defence against Markistan’s laws.

What it might do is provide a defence if a Markistan court found an ASIS member guilty of some offence related to the concealed weapons and then somebody tried to enforce the Markistan decision against the ASIS member in Australia.  It might also provide some avenue for diplomatic law.

But those two situations are unlikely for both practical and technical reasons.  These provisions of the Australian legislation will never find their way before a court.

So the legislation is really a serious and authoritative statement of parliament’s will with regard to its intelligence agencies.  It is a statement by our democratic representatives about how Australian society expects its intelligence agencies to conduct themselves.  The question is whether Australian society really expects there to be an erosion of the police and military’s monopoly on the use of force.


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