Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

As many speakers from all sides have said, this is an important issue. It goes right to the heart of some key traditions certainly of Australia and, I would argue, of wider Western liberal democracies. I need to put a few things on the record to make clear the Democrats’ position, as we will be supporting the Greens’ amendments, for reasons that I will outline, but in doing that I am probably going to spend most of my time disagreeing with most of what Senator Brown has said. I want to indicate why we are supporting his amendments whilst not wanting to suggest that we agree with some of his analysis.

The amendments, to bring the chamber back to the specific amendments before us, relate to the use of force. They relate to when the ADF are called out, what type of force they are able to use under what circumstances and the protections around that. Obviously, that includes the use of force that could involve the death or grievous bodily harm of somebody. The protections around that need to be as strong as possible. That is where the Democrats’ concerns lie—that the protections around that are not as strong as possible.

That does not mean that I agree with a lot of the analysis put forward by Senator Brown. I want to clarify a few of those matters. I do not believe it is accurate, as he suggests, that the legislation subverts the Nuremberg defence or anything like that. He read out a section about it being a defence to a criminal act by a member of the Defence Force if it was done under the order of a superior. He did not read what was written underneath that section, which in addition refers to the order not being manifestly unlawful. If a superior officer—and this has already been established—gives an order to ‘go and shoot that person in the head because he’s annoying me’, that is manifestly unlawful. Clearly, this is part of the training of defence personnel now. As is always the case, you can argue at the margins, but the Nuremberg trials, as we all know, were about manifestly appalling abuses of human rights at the highest level; they were not about a judgment made in the heat of a particular incident regarding what type of force to utilise. So the Nuremberg context is completely inappropriate because any orders that might in any way lead to actions that would be placed in a Nuremberg type context would be manifestly unlawful and that defence would not be available.

The issue of constitutionality is another one that needs to be emphasised a bit more. A lot of these arguments were examined in more detail back in 2000, when the primary aid to civilian authorities legislation was passed. People who are interested in exploring the detail of this matter should read the transcript of the Senate debate and especially the Senate committee report on that legislation. That report details the history of this whole area of calling out the troops in certain circumstances. It details circumstances where that has occurred in the past in Australia. On a few occasions troops have been called out with authorisation to use force, and at other times they have been called out in other civil circumstances but that authorisation to use force has not been involved.

It is an important part of our tradition that the military is clearly seen as being for the defence of the nation, not as an arm of government to be used against its own civilians. It is also a key part of our tradition that the military is seen as being clearly distinct from the sorts of civil order activities of the police. The point was appropriately made during the Senate committee inquiry that too much movement of our military towards involvement in civil activities would constitute a danger. The flip side of that must be recognised—that if we seek to rely solely on our police in circumstances which really start getting into attacks on the nation, we also run the risk of militarising the police, which is also something that we want to guard against. So we need to operate within all of those contexts.

With respect to the federal government’s use of such constitutional powers, there are still genuine questions about how wide-ranging the constitutional power is. Those questions were already there having regard to the existing legislation. Indeed, they were already there before the legislation came into force in 2000. The fact that troops had been called out in the past, before 2000, demonstrated clearly that the power was there. Section 119 of the Constitution has been quoted. It says that the Commonwealth shall protect every state against invasion and, on the application of the states, against domestic violence. But there are other sections of the Constitution apart from 119.

One could also argue about how you would define ‘invasion’ under section 119. Certainly, some could say, in some sorts of terrorist incidents, that that could be equivalent to invasion, particularly when one keeps in mind what would have been difficult to envision when the Constitution was being pulled together in the 1890s. The founding fathers probably would not have envisioned jet airliners flying into 60-storey buildings. They would have had enough trouble envisioning a 60-storey-high building, let alone a jet airliner. So that section alone is open to interpretation.

Apart from that, clearly there are a number of aspects under section 51 of the Constitution that the federal government could rely on in certain circumstances in order to call out the troops. One that is perhaps most germane is the external affairs power. In recent years the federal government has entered into a range of international agreements to deal with terrorism. That, in itself, could be relied upon. That is the same power, as Senator Brown would know, that was relied on, thankfully, to prevent the Franklin dam from being built. The majority in the High Court case was only four votes to three. At the time it was seen as potentially subverting the intent of the Constitution. I am glad that the High Court at that time had the wisdom to see that the federal law was being appropriately applied with respect to the external affairs power.

In certain circumstances that could also be applied in this regard, as could other sections, such as section 51(vi), section 51(xxxix) and the general executive power under section 61. To say that it is a massive attempt to completely subvert the Constitution is to overstate things. That is not to say there are not still question marks about how far those powers go. But that is really a debate for constitutional lawyers and there will always be different opinions on such matters. Unless there is a definitive High Court ruling, we will not know. Clearly, there are other grounds here. That is not to say that it is not desirable to involve the states, to consult with the states and ideally to get the cooperation of and an invitation from the states. Concerns have been raised by the states—specifically by the New South Wales government in this inquiry—that the level of consultation in putting this legislation together was less than ideal. That is of concern.

I turn again to the issue of the use of force and those powers, because this was touched on in the committee report, and it is the reason why the Democrats are of a mind to support the amendments and why we are concerned about the totality of the bill if it is not amended. The use of force is obviously at the pointy end, if you like, of these situations. The committee made a couple of recommendations. We have already touched on one of the recommendations, which was to clarify quite clearly, as a statement of intent, that this section should only be used when all other avenues have been considered and rejected. It appears that the government has chosen not to go down that path.

Perhaps more important to the specific matter before us is the issue that was raised in evidence given by the Human Rights and Equal Opportunity Commission about what test would be used in determining a decision to make an order that could potentially lead to the loss of life. The human rights commission proposed the addition of what is called a proportionality test. They were doing this in the context of ensuring that the legislation clearly complied with article 6 of the International Covenant on Civil and Political Rights which deals with the right to life—clearly, they were raising a fundamental issue. Their view was that the safeguards in this legislation needed to be strengthened or clarified. As stated in their evidence before the committee:

The commission’s submission is that in view of the fact that these orders authorise measures that may well lead to the loss of life—

the test of—

‘reasonable and necessary’ is not a stringent enough condition to reflect the international law requirement of proportionality.

I am not suggesting we should adhere to international law for the sake of it or have our decisions tugged around unthinkingly by international law, but this area of international law has been developed over time specifically because of the need to get these sorts of powers and the limits on them as precise as possible. We should take great heed of and rely on how those are developed, because they are developed as a result of experience in the extreme circumstances that this legislation envisages.

The Senate committee did recommend that a stronger proportionality test should be included—what they have called ‘the least restrictive means test’. I will not go into what that means, but it basically gives a better sense of proportion to the situation than just a general overview of what is reasonable or necessary. That was a recommendation by the committee. It does not seem to me that the government has taken up that recommendation, and I think, in the absence of that, the powers for the use of force here are not framed as tightly and as safely as would be desirable, and that is a significant concern.

That is not to say that this is going to happen tomorrow or that the more extreme circumstances that have been suggested are likely to happen. As I said at the start, this legislation is dealing with a pivotal and fundamental area. That is why I think you do need to try and approach it with as forensic and precise an examination as possible, because you are putting something in place potentially for a long time. As has been said, the powers will only be used in extreme circumstances, and it is when you are in those extreme circumstances that you will need to have the most precise definitions and proscriptions as possible in place.

That is why the general concept of putting in place legislation is desirable—because otherwise it is not confined, it is not defined and you just have general, open-ended executive power, and I do not think that is desirable at all. In putting the legislation forward, I think it has to be codified as tightly as possible, particularly given the government’s refusal to adopt even the quite mild recommendations of the committee. I think that indicates genuine grounds for concern.