Brendan Nelson (Bradfield, Liberal Party, Minister for Defence) Share this | Hansard source

I move:

That this bill be now read a second time.

I would like to introduce the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006, which amends part IIIAAA of the Defence Act 1903.

The amendments contained in this bill will give effect to Australian government initiatives to improve the responsiveness of the Defence Force to domestic security incidents in the current threat environment.

I would like the House to note that this bill addresses the recommendations of Mr Tony Blunn, Major General John Baker and Mr John Johnson following their statutory review of part IIIAAA, and I particularly thank them on behalf of the Australian government—indeed, the Australian people—for their significant contribution to this bill.

I would also like to thank the Senate Legal and Constitutional Committee for its scrutiny of the bill and for providing Australians with the opportunity to voice their opinion on the provisions contained within the bill.

In particular, I thank the committee chair, Senator Marise Payne, for her continued diligence in the Senate and for her keen interest in the defence of our nation.

I would like to acknowledge the committee’s report and thank the committee for its broad support of the Australian government on these measures, while noting that the bill and the explanatory memorandum already cover the fundamental principles contained in the committee’s recommendations relating to the application of an amended part IIIAAA as a measure of last resort and the use of reasonable and necessary force.

I also thank the opposition spokesman for defence for the responsible way in which he has approached this particular legislation on behalf of the opposition. Indeed, I am thankful for the opposition’s support of this bill.

However, I do wonder at the shameful and, dare I say, disgraceful outburst by Senator Bob Brown, representing the Greens, during the Senate’s debate on this bill last week, when he likened the nation’s service men and women to Nazis who were tried in the Nuremburg trials. I think it is absurd and an indictment of the Greens, as a political voice in the Senate, that anyone would so illegitimately situate Australia’s Defence Force personnel within such a dreadful and heinous period of Western history. Notwithstanding the political differences and philosophical views amongst all of us, including within and between the parties, I do not think there is a place for that kind of contribution in any debate.

I have the honour of being Australia’s Minister for Defence. Not only am I a very proud Australian, but I am proud of the thousands of men and women who faithfully and dutifully train to protect and defend our nation and its people.

I share the hope of the nation that an event so extraordinary as to occasion the call-out of Australia’s defence forces will never occur, but I also share the very strong belief of the coalition that it is wise to ensure that our laws allow for the cautious and expeditious use of the ADF personnel in a time of extreme crisis.

These amendments will enhance the ADF’s ability to contribute to operations in support of domestic security and provide appropriate powers and protections for ADF personnel during call-out.

The current legislative basis for ADF operations in support of domestic security does not reflect the evolving threat environment, nor does it reflect recent initiatives such as the March 2005 establishment of the Joint Offshore Protection Command. The current legislation does not appropriately reflect the potential range of tasks faced by both permanent and reserve forces in periods of heightened alert.

The amended bill does not constitute a change to the fundamental principles which underlie part IIIAAA of the Defence Act. I would like to emphasise that, while the current threat environment is likely to remain dynamic, the use of Australia’s defence forces in domestic security operations remains one of last resort. Equally, the primacy of the state and territory authorities and the retention of the military chain of command are central to this bill.

The bill will amend current call-out provisions for the ADF in domestic security operations, amending parts of the legislation which are rigid and complex and certainly inhibit the flexibility and speed with which the Australian Defence Force could respond should Australia face a terrorist incident in limited or no notice circumstances.

Further, the amendments address the lack of statutory legal authority to use reasonable and necessary force in ADF operations involving aviation and maritime security and the protection of designated critical infrastructure.

The amendments to part IIIAAA will clarify accountabilities, facilitate the effective use of ADF capabilities and ensure that there are adequate legal protections for ADF personnel when conducting domestic security operations.

In broad terms, the purpose of the amendments is to permit the utilisation of the Australian Defence Force to protect states and territories against domestic violence and to protect Commonwealth interests where state and territory jurisdictions do not apply.

I turn now to the specific amendments. The bill seeks to amend the Defence Act 1903 in nine key areas.

(1) The first relates to the use of reserve forces in domestic security operations. Restrictions on the use of the reserves have been excised to ensure that any ADF elements can be employed effectively in operations in support of domestic security. This will enhance operational flexibility and ensure that appropriate ADF capabilities are authorised to take action under part IIIAAA if required. Personnel from the reserve forces are increasingly integrated into day-to-day duties of the ADF. In some cases reserve forces might be better positioned to respond quickly.

Moreover, the government has established specialist reserve capabilities in recent years to conduct operations in support of domestic security. The expectation is that those capabilities would be required immediately in such a scenario.

(2) Second is the identification of Australian Defence Force personnel. An ADF member conducting division 2 and division 3 activities should not be required to wear surname identification. This has been addressed as it reduces operational flexibility of ADF members to undertake both types of operations. A suitable numeric or alternative identification will be developed to ensure that members of the Tactical Assault Group or other ADF personnel can be appropriately identified for consequence management purposes while still protecting their identities from the public.

(3) Third, this bill will amend part IIIAAA to reduce the notification requirement for cordon areas to be broadcast on radio or television, particularly in those limited circumstances where broadcast could jeopardise ADF operations or give terrorists warning of operations. This amendment will not alter the notification arrangements between the ADF and the civil authorities, and all other notification requirements will proceed as normal.

(4) Fourth, part IIIAAA is currently based on resolving siege or hostage situations, where the location of a threat is well known and where there is sufficient warning time to establish the requirement for call-out. This is reflected in the requirement for division 2 to apply to a ‘subject premises’ under the act. While ‘subject premises’ can be defined as a means of transport or other thing, it was unclear whether this would apply to an ADF response to mobile incidents.

As such, the amendment redefines ‘subject premises’ within the broader descriptor of ‘subject incidents’, focusing on assigning the powers of part IIIAAA to an incident or event, or series of events, rather than a narrowly-focused ‘subject premises’. Similarly, the part has been amended to include a reference to ‘resolve subject incidents’, preserving the current responsibilities of the ADF under division 2 but removing the ambiguity surrounding its specific application and allowing the ADF to operate in a mobile environment.

This ensures that the powers conferred on the ADF under part IIIAAA can be accorded to the ADF in the course of dealing with a mobile terrorist incident and a range of potential threats.

(5) Fifth, part IIIAAA has been amended to allow for expedited call-out arrangements to deal with rapidly developing threats such as a hijacked or rogue aircraft or a fast-moving vessel. The requirement is to ensure that there are flexible and responsive mechanisms in place that will enable call-out of the ADF in the event of such a sudden and extraordinary emergency.

The expedited call-out arrangements will enable the Prime Minister to make an order, which the Governor-General is usually empowered to make, in the event that a sudden and extraordinary emergency makes it impractical for a call-out order to be made under existing sections of the part.

In the event that the Prime Minister cannot be contacted, call-out can be authorised by two other ministers: being either the Minister for Defence and the Attorney-General as a second tier of authorising ministers; or, in the additional event that one of the two authorising ministers—that is, the Minister for Defence and the Attorney-General—is not contactable, the two ministers will then be one of the authorising ministers and one of the Deputy Prime Minister, the Treasurer or the Minister for Foreign Affairs and Trade.

Further, call-out orders need not be made in writing. That is, a verbal order from the Prime Minister, or from the two ministers, to the Chief of Defence Force can initiate call-out. In the event such an order is not made in writing, the Prime Minister and the two other ministers must each make a written record of the order, sign the record and ensure the signing of the record is witnessed.

(6) The sixth amendment provides the ADF with the ability to protect designated critical infrastructure. In the event of a credible terrorist threat or heightened alert, mass transit systems, mass gatherings such as the Melbourne Commonwealth Games or designated critical infrastructure may require protection. The terrorist attacks in New York, Madrid and London have shown that these types of infrastructure are high-priority targets for terrorists and that the Australian Defence Force may be required to protect infrastructure that the government designates as critical. To undertake this task, the ADF may be required to use reasonable and necessary force in specific authorised circumstances.

This measure acknowledges the increasingly close interrelationships between infrastructure, critical services and facilities, and that the destruction or disabling of a system or structure is likely to have significant flow-on effects that may result in loss of life—for example, the potential loss of power to a hospital, the disruption of communications or the interruption of vital utilities.

The Prime Minister and the aforementioned authorising ministers will designate the protection of infrastructure. The authorising ministers must be satisfied that an attack on infrastructure will result in a loss of life before directing the Chief of Defence Force to utilise the Australian Defence Force to protect infrastructure. Relevant state or territory governments will be consulted on the identification of designated critical infrastructure, unless this would be impractical for reasons of urgency.

The potential use of force by the ADF in such circumstances would be informed by a process that identifies the importance of the infrastructure, on its own and within a system, and whether disruption to its operation would endanger the life of a person.  That process would be underpinned by a reasonable belief that there is a threat to specific infrastructure and the disruption of that infrastructure would result in potential loss of life.

(7) The seventh amendment concerns the use of the Australian Defence Force in a domestic security operation which has the potential to result in damage to property, serious injury or death. In circumstances where part IIIAAA is enacted, the ADF will be employed, either as a direct result of a call-out requested by states or territories or by a Commonwealth initiated call-out, particularly in the maritime and air environment. It is also possible that domestic security operations will be cross-jurisdictional.

As the ADF is a Commonwealth entity operating under Commonwealth law and the Defence Act, it is appropriate that any prosecutions arising from a domestic security operation should also be considered by the Commonwealth Director of Public Prosecutions. The Commonwealth Director of Public Prosecutions would be required to consider the context of a domestic security operation, including relevant rules of engagement and the military chain of command. It must be emphasised that there is no intention to seek protection for any ADF member who complies with a manifestly illegal order or undertakes an unreasonable or unlawful act. The use of the Commonwealth Director of Public Prosecutions will ensure consistency and, to the maximum extent possible, a uniform set of criminal laws that can be applied to ADF personnel acting under part IIIAAA.

I turn now to the final changes to part IIIAAA, which introduce two new divisions within the Defence Act. These divisions reflect the requirement for a greater level of authority for the ADF in specific and limited circumstances—in this case, in the air and maritime environments. Currently, there are no provisions within part IIIAAA to enable the Australian Defence Force to conduct operations against air threats. At present, these operations would be authorised under the government’s executive power. As the ADF is the only agency equipped to conduct aviation operations, there is a requirement to ensure a consistent legislative approach for both land based and air based activities.

In the event of an aviation security incident, the ADF has the only capability of resolving such a threat. However, there is no statutory authority under current part IIIAAA provisions for the ADF to resolve an airborne aviation threat. The new aviation division within the Defence Act will enable call-out of ADF capabilities to respond to threats to Commonwealth interests in the air environment. This division contains a specific authority for ADF members to use force against an aircraft in flight or on the ground, provided that those members are authorised by their orders to use such force and that those orders are issued pursuant to a ministerial authorisation and are not manifestly unlawful.

The second new division created under the amendments to part IIIAAA is the offshore division.  As with the air environment, there are no provisions within part IIIAAA to enable the ADF to conduct offshore maritime counter-terrorism activities outside of a state or territory jurisdiction. ADF personnel do not receive the same powers and protections afforded when conducting land based hostage recovery operations. Again, as the ADF is likely to be the only agency able to conduct offshore counter-terrorism operations, there is a requirement to ensure a consistent legislative approach for both land based and offshore activities, similar to the aviation division.

The current part IIIAAA is focused on protection of the states from domestic violence, and the protection of Commonwealth interests from domestic violence within Australia. In this context the current provisions mean that the term ‘within Australia’ does not extend beyond the territorial sea baselines, and therefore the current part IIIAAA does not extend to the offshore environment between the end of the territorial sea and the edge of Australia’s maritime responsibilities—clearly an unacceptable arrangement.  The current part IIIAAA is also land-centric in its application. The new division within part IIIAAA will enable call-out of ADF capabilities to respond to threats to Commonwealth interests in the offshore areas.

In all instances, the new air and offshore divisions will ensure that ministers will have due regard to Australia’s obligations under international law. In summary, this bill will allow the utilisation of the ADF to prevent, deter or respond to threats to our nation’s domestic security whilst maintaining the integrity of the principles of Defence Force aid to civilian authorities. The Australian government is diligently working to ensure the protection of our nation, its people and its interests. I commend this bill to the parliament and present the explanatory memorandum.

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