Robert McClelland (Barton, Australian Labor Party, Shadow Minister for Defence) Share this | Hansard source

The opposition supports the second reading and the passage of the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006. We will, in due course, be moving a second reading amendment on issues of consultation, but those issues are separate from the merits of the legislation.

As the Minister for Defence indicated, this bill arises from a statutory review which was preprogrammed, if you like, into the original legislation. That review was tabled on 2 March 2004 and we express our appreciation to those involved in the review. The original laws in part IIIAAA were enacted in September 2000. They were controversial at the time and subject to a great deal of public debate, but I think events since that time, most notably the September 11 attacks on New York and Washington, showed just how necessary they were. Of course, those attacks have unfortunately been followed up by numerous events around the world, including the London and Madrid bombings.

It is important that people realise that the current framework—that is, part IIIAAA—operates in two contexts. The first is where the states are confronted with violence that is beyond their capacity to deal with and request assistance from the Australian Defence Force. The second is in respect of protecting Commonwealth interests, where the Commonwealth has power to call out the defence forces on its own initiative. That regime is contained in the existing legislation. With the events of 9-11, Madrid, London and others around the world, the statutory review was able to assess the part IIIAAA framework as to its relevance and efficacy in the event of Australia being confronted with a terrorist incident.

The review made the following observations. Firstly, it observed that there were complications in terms of complex, and at times quite convoluted, procedures under the existing legislation, which limited its effectiveness. It noted that the current legislation is substantially limited to a siege or hostage situation. It observed that the current framework really focuses on a security incident—an event, if you like—at a specific location, rather than recognising the fact that a terrorist incident could be highly mobile and occur at several different geographic operations.

The review also noted that the current framework in the existing legislation was not sufficiently farsighted to enable preventative or protective operations to occur. Further, it noted that the current provisions were simplistic in excluding the ability to call on the reserves, despite the fact that our reserves may have particular skills that equip them in particular for tasks such as responding to a chemical, biological or nuclear threat. Finally, it noted that there were unsatisfactory jurisdictional barriers to the effective operation of a civil call-out of our defence forces—namely, the eight different legal frameworks existing in the individual states and territories. As I say, that review was tabled in March 2004. With that review in mind, the Australian Defence Force conducted an analysis of the legislation in light of events.

The minister referred to—and, appropriately, condemned—comments made on behalf of the Greens by Senator Brown in the Senate. It is important when people contextualise this debate that they appreciate the activities of modern terrorists. As was submitted to the Senate Legal and Constitutional Legislation Committee by the Defence Force, and as we need to briefly remind ourselves, modern terrorism all too frequently targets innocent bystanders and, all too frequently, mass casualties are actually their desire and their intention. More often than not these days, suicide bombing seems to be a weapon of choice. As reprehensible as terrorist acts by the IRA may well have been, even if perhaps some would argue their cause had merit, at least there were attempts to provide warnings; that fact is absent from the modern terrorist event. It is fanciful to assume that modern criminal laws will be any deterrent to those who are often intent on taking their own lives to perpetrate the event.

The review of the Defence Force showed that, if we are to effectively prevent a terrorist event—most importantly, to prevent an event but, should the worst occur, to respond to such an event—we need the cooperation of multiple jurisdictions, law enforcement authorities, defence authorities, intelligence authorities and emergency response teams on a cross-jurisdictional cooperative basis. It is often necessary, if we are to prevent an event and minimise casualties, to take anticipatory action, based on intelligence. The lessons learned also are that an event may well cross boundaries. It may well be that an event occurs in New South Wales, South Australia and Western Australia simultaneously or within the same city.

The final point is that chemical, biological and radiological threats are very much a reality of modern terrorism. This means, as I have said, that we require expertise from the civilian authorities and, in particular, those who may be better equipped than the permanent forces and the members of our military reserves.

I will not labour an analysis of the bill in detail. The minister has accurately described the substance of the legislation in some detail. Suffice to say that there are essentially three categories that the nine different areas described by the minister can be summarised under. One concerns the expansion of the domains that this legislation will apply to. It will apply to the maritime domain and the aviation domain. I think it is fair to say that there was an oversight in not including those domains in the original legislation. Clearly, there is a risk in the maritime domain, whether you are talking about oil and gas offshore facilities, whether you are talking about shipping that could be hijacked by terrorists before coming into a port or whether you are talking about the example of the September 11 attacks on New York and Washington—the threat through aviation—clearly there is a need for these call-out provisions to operate in those domains. That should be self-evident, we believe, to anyone who is objectively considering the merits of the legislation.

The other domain that will be added is the area of critical infrastructure. It is important to add that area because the current powers, I think it is fair to say, in brief, are limited to the defence forces substantially protecting life. It may be the situation that maintaining the viability of critical infrastructure is essential to maintaining life and public safety but in circumstances where there may well not be the presence of people at that infrastructure that would justify the current call-out regime.

The third area relates to procedural aspects, where there has been found to be difficulty in the current measures. In that context there are measures for an expedited call-out situation. A member of my staff did an analysis of the current regime. It is extremely complex and extremely time consuming. If we relied on that regime to combat or prevent an urgent threat, we would be in trouble. An example originally given in the explanatory memorandum, I think, was the possibility of a tanker carrying petroleum products or fertilizer being hijacked before it entered one of our ports, or indeed an impending threat by air, which would not facilitate these cumbersome arrangements. On that basis, the expedited provisions are justified.

The second area relates to the application of laws in this procedural group. The Leader of the Opposition has highlighted the difficulties where the black hawk helicopters, which will be located, for instance, in Holsworthy in Sydney, may well be required to respond to an event in Brisbane, Melbourne or New South Wales—wherever it may be—and would operate under a different legal regime depending on where they were called out to. That obviously creates problems with training, operational complexities and, ultimately, accountability measures. Having said that, we appreciate that there are complications with respect to the interaction with state legal systems. Perhaps there needs to be more work done and Commonwealth and state authorities need to sit down and identify those areas where, under the laws of Jervis Bay—the criminal regime that applies—there will be commonality and where there will be difference with the laws of the states.

The other areas where the legislation can effectively be grouped is within the third category—that is, with respect to operational matters. I have already commented on the commonsense of calling on the expertise that may be contained in our reserve force element, particularly dealing with the prospect of radiological, biological or poison attack.

On the question of identification, our special force members in particular are entitled to preserve their identity to prevent reprisals on themselves—but, more significantly, I am sure they would believe, on their family members. Currently, the legislation requires ADF members who are called out to have identification on them. It is appropriate in those circumstances that there be the possibility of identifying ADF members, particularly the special forces, perhaps through a number being included on their uniforms, while still preserving their identity by not publishing their names to the community or to those who may effect reprisals against them.

The next item the minister has referred to is the mobility of threat. We agree that this area needs modification. We have learnt from London and from Madrid that these events can occur at multiple locations—indeed, in the specific case of a London bus, literally moving around the streets of London. Clearly, the need for mobility is self-evident.

The other issue under this third category of operations is the current requirement that the identification of the call-out area be publicly broadcast. Obviously, it is desirable where possible for that to occur, if only to keep the public away from the area; but equally there may be operational reasons for preserving the specific location to prevent notification to those who may be perpetrating the event and for other operational reasons, which again we concede as being sensible.

In the final part of my contribution I want to address some of the inaccuracies that have been presented in opposing this legislation—in particular, in the contribution of Senator Bob Brown on behalf of the Greens. Among other things in his contribution to the second reading debate he described this legislation as being ‘Constitution crushing’. In that context he relies on section 119 of the Constitution, which states:

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

Senator Brown’s reasoning is this. Insofar as that casts a positive obligation on the Commonwealth, anything that does not involve a request from the state means that it is not authorised under our Constitution. With respect to the senator, he did not refer to other provisions of the Constitution nor to advice that was given by legal experts to the very committee that he sat on, the Senate Legal and Constitutional Legislation Committee. That advice, as quoted in the report, reads:

The Commonwealth’s inherent power to call out the troops on its own initiative is based chiefly upon the executive power (Section 61 of the Constitution) but other powers which are also relevant are Section 68 and the legislative powers contained in Sections 51(vi) and 51(xxxix) of the Constitution.

That is vitally important. These powers already exist. The executive already has powers to call out our military. What does not exist is a codification of how they are to be activated, how they will work in operation and how accountability mechanisms will operate. It is all very well for Senator Brown to refer to one section of the Constitution without referring to the broader advice or to the reality that call-out has actually occurred in the past under these broader executive powers. That has to be acknowledged. In honestly declaring and acknowledging that these executive powers exist, you can say: ‘Well, all right. Isn’t it better for training purposes that the regime for activating the call-out, for using the call-out and for subsequent accountability is effectively codified?’ That is precisely what the legislation is doing and that is exactly why the Australian Labor Party is supporting the legislation. Clearly, for training, operational and accountability reasons, there is a need for legislation such as this. To dismiss the need for such legislation, quite frankly, is being less than frank with the Australian people.

Senator Brown’s suggestion that the defence forces will be given immunity by these measures is, again, being less than frank. The defence forces will be accountable to criminal law, to the laws of Jervis Bay—that is, I think it is fair to say, to the criminal law that applies in the Australian Capital Territory. As the minister said, it enables a training regime, an operational regime, which is common wherever they may be called out to. It is not true that they will be immune from criminal law. The ACT criminal law is a detailed and sophisticated criminal law regime. We do have problems: those areas of commonality with and divergence from the states need to be sorted out so that state law enforcement authorities know where the barriers are. In that context we acknowledge and express our appreciation to the minister that he agreed to an opposition note confirming that state law enforcement authorities nonetheless remain responsible for investigating any allegations of criminality. That is a separate issue, however, from the assertion that the legislation will make members of the ADF immune from criminal law. That is not the case and it is not sincere to advance that proposition.

We agree with Senator Brown when he says that the predominant role of policing should be done by police forces. But what he does not say is that the whole scheme of this legislation is to enable the military to be called out to assist civilian authorities. The regime is quite distinct from other models that could have been adopted. In the Canadian model, for instance, the defence forces are seconded, as I understand it, to the policing authorities to act as policing officers. We are not doing that. Members of our Defence Force will not be acting as police officers. They will remain members of the ADF with limited rules of engagement, as opposed to broader law enforcement powers. Similarly, the United States National Guard model has not been selected. That is a body entrusted with domestic policing functions. Our defence forces will very much remain to assist domestic law enforcement, and I think it is fair to say that the national security strategy has the state police commissioner ultimately in charge of an area where a terrorist event may occur. Again, it is misleading to suggest that members of our Defence Force have been given broader powers than police officers. In fact, the reality is that under their rules of engagement their powers are more limited.

The other issue that Senator Brown raised is the defence of superior order available under this legislation to a member of the Defence Force who faces criminal prosecution. Again, he has not gone into the detail of the legislation. Clearly, members of the Defence Force have to act under orders and clearly they have to act under rules of engagement. But for them to avail themselves of the defence of acting under superior order they have to be satisfied of a number of things, including that the order is lawful, that it was based on a sound understanding of the facts and that that understanding of the facts has not changed by changing circumstances. There is a range of other factors. There is a constraint on that defence being used; nonetheless, it should be available to a member of the Defence Force who to have any effective operation must of necessity act on the basis of reasonable and lawful orders.

The other and significant lack of frankness is Senator Brown’s assertion that this legislation could be used in an industrial dispute or civil protest, and he referred in his speech to the Franklin Dam situation. In fact, section 51G of the bill says the Defence Force must not be utilised to:

… stop or restrict any protest, dissent, assembly or industrial action, except where there is a reasonable likelihood of the death of, or serious injury to, persons or serious damage to property.

Again, that is a reasonable restriction that was not referred to sincerely and frankly by Senator Brown. He argues indirectly that these powers have been broadened insofar as the bill gives power to the members of the Defence Force to protect critical infrastructure. In that context, they are entitled to use reasonable force. I think section 51T is the section dealing with critical infrastructure. Senator Brown does not refer to the fact that before infrastructure can be designated as critical, the two authorising ministers, on reasonable grounds—specifically on reasonable grounds, permitting challenge—must be satisfied not only of the likelihood of threat or damage to that infrastructure but also, significantly, that the damage or disruption would directly or indirectly endanger the life of or cause serious injury to other persons. And, as a result of amendments, that has to be with consultation with state governments, barring a situation of urgency. So again the two ministers have to be satisfied that death or serious injury will be a likely occurrence as a result of this terrorist event—again linked specifically with the power of members of the ADF to use force. So again he is being less than frank, unfortunately, with the Australian people in terms of voicing that concern, which is unsound on the basis of those protective mechanisms.

This all comes back to which way you are looking at these arguments. If you look at the arguments from the point of view of those checks, restrictions and accountability, the whole intent of the legislation is to protect—to prevent the loss of life of, in particular, civilians in the event of a terrorist event. To attempt to turn it around and say that the intent is to enable the Defence Force to go out and take life is wrong. In that context, article 6 of the International Covenant on Civil and Political Rights has been invoked by Senator Brown, who says that the legislation offends that. That article says:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

In terms of people being arbitrarily deprived of life, there is no event that is more likely to deprive someone arbitrarily of their life—including children who may be innocently on a train—than a terrorist event. This legislation is designed to prevent a terrorist event and to respond to a terrorist event. It is soundly based in terms of the safety mechanisms of call-out. It is sensibly based in terms of the operational requirements. You can always have additional accountability regimes, but in terms of the accountability regimes that apply under this legislation as compared to a general use of executive powers, there is simply no comparison. These accountability measures are appropriate. In summary, the opposition fully supports this legislation. I move:

That all words after “That” be omitted with a view to substituting the following words: “whilst not declining to give the bill a second reading, the House calls upon the Government to:

(1)

undertake urgent discussions with State and Territory Police Ministers with a view to clarifying the interaction between the application of the substantive criminal law of the Jervis Bay Territory pursuant to these proposed amendments and the criminal laws of the respective States and Territories of Australia; and

(2)

clarify potentially overlapping and inconsistent chains of command between the Chief of Defence Force and State and Territory Commissioners of Police in respect to a call out of the ADF to assist civilian policing authorities”.

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