Chris Hayes (Werriwa, Australian Labor Party) Share this | Hansard source

The issues surrounding national security and the role that the various agencies play in the ongoing protection of our nation are very important. I support the proposals contained in the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006 because they will clarify a raft of issues surrounding the involvement of the ADF in domestic security tasks. There is no doubt that the experiences of other countries when it comes to the role of defence personnel in areas that might traditionally be considered to be the domain of state or territory police forces have pointed to the need for a clarification of the role of various authorities domestically. The bill also tackles the important issue of the level of legal protection that is provided to ADF personnel when they are involved in what is termed ‘domestic violence’. Significant aspects of this bill include the codification of circumstances in which the military can be called out and the accountability measures around such a regime.

In a world in which terrorism and the activities of terrorists are featured with increasing frequency in media coverage, national security issues are certainly important ones for us. Whether it is because of our involvement in the Iraqi conflict, whether it is because of our involvement in Afghanistan or whether it is because of the increasing number of important events occurring in our own backyard, there is no doubt that Australia is more exposed today to threats to its national security than it has been for many years.

The changes that we have before us today do not constitute a change in these arrangements but are still significant. The changes follow the statutory review of the existing legislative regime contained in part IIIAAA of the Defence Act 1903. The review made a number of points about part IIIAAA and the existing legislative regime and made the following recommendations: (1) that the scope of the application of part IIIAAA be reconsidered; (2) that the call-out and authorisation procedures under part IIIAAA be reviewed; (3) that action be initiated to resolve the practical limitations of part IIIAAA, in particular with respect to the use of reserve forces; and (4) that action be initiated to provide appropriate recognition of the practical reality of the military context in which members of the ADF engaged in domestic security operations must necessarily be required to act.

The amendments contained in this bill constitute the recognition that the ad hoc means through which arrangements were entered into for the use of the defence forces in national security issues needed to be set down formally. The fact of the matter is that part IIIAAA was not up to scratch. It did not meet the needs of an evolving environment—certainly not the one we are currently experiencing. Addressing these realities is a sad fact of modern life, but it is an issue that must be dealt with so that a sound set of principles is established and so that the process that surrounds the use of the Defence Force in events of domestic violence or in a sudden and extraordinary emergency is known and is clear.

As the Leader of the Opposition noted in his speech on the national security blueprint, under the arrangements currently in place, if the Black Hawk helicopters that are located at Holsworthy were required to respond to a terrorist event then the powers that would apply would be different depending on whether they were flying to Sydney, Melbourne or Brisbane. Such a situation is unworkable and must be corrected.

When it comes to dealing with matters that are of a serious enough nature to involve the ADF, the practical reality is that arrangements must be clear and they must certainly be clearly understood by all. Without clear lines there will be confusion. Such confusion will cost time and, in the event of a serious threat to Australia’s national security, regrettably this time is likely to be measured by a death toll rather than in monetary terms. In an environment in which one act by a lone terrorist could plunge a city into chaos, it is important that those with responsibility for responding to an event have a set of rules in place which will guide the call-out of various elements of security personnel, be they police or military forces.

It pleases me that the amendments contained in this bill will not overturn fundamental principles and the primacy of state and territory police to respond to issues of national security in the first instance. It is the proper approach when it comes to domestic security operations that the use of the Defence Force is a matter of last resort. I welcome the fact that the legislation retains the existing processes and provides greater transparency for the role of domestic forces in domestic security issues. It is important that the scope of the ADF’s responsibilities in respect of the activities that would otherwise be authorised under section 61 and 68 of the Constitution, such as aviation, maritime and critical infrastructure security operations, be made clear.

In recording my support for this bill, I would like to note the concerns of the Police Federation of Australia. The federation has written to the Prime Minister and the relevant Senate committee outlining its concerns over a couple of issues associated with this bill. In its correspondence it notes:

Neither the Act nor the Bill specifically states how it is determined that a State is unable to deal with an emergency, merely that the person or persons authorising an order must be satisfied that such a situation exists. A clarification of how this determination is made should be included in the Bill.

The federation also expressed the view that it would be appropriate to define what constitutes domestic violence and what constitutes a sudden and extraordinary emergency. These are important points for the operation of this expedited call-out arrangement, and I ask that these concerns be addressed by the minister.

The second issue that the federation is concerned about is the transparency of the process surrounding the investigation and, where appropriate, the laying of criminal charges against Defence Force personnel. During security operations, particularly in times of crisis, there is the possibility that a criminal act will occur. Throughout the world there are tribunals and courts in which such matters are dealt with in a transparent and aboveboard manner.

Members of the House will no doubt have heard about the recent allegations against British soldiers in Iraq and seen the television footage. It has been indicated that an investigation was launched immediately by the relevant authorities to get to the bottom of the problem and make sure that appropriate action is taken. Of course, the events that featured prominently in yesterday’s news relate to military action and involve military personnel, so it is appropriate that the military use its processes and means of investigation to get to the bottom of the matter and take the appropriate action.

In the case where the Defence Force is called in to assist state or territory police, the lines, quite frankly, are not so clear. In their correspondence to the Prime Minister, the Police Federation made the point that making the Commonwealth Director of Public Prosecutions responsible for determining when charges are to be laid under Commonwealth criminal law may prompt questions about the transparency of the investigation. The federation is of the view that there should be an express statement in the legislation that investigations of purported criminal activity are to be conducted by the appropriate state or territory police. While this is outlined in the explanatory memorandum, the federation nevertheless believes that having these provisions contained within the legislation would be a clearer statement of intent. That is something to which I would lend my support. I think the legislative statement would be an important contribution to the bill, and I think all on this side of the chamber would support any such amendment—and indeed the minister has also indicated his support for that proposition.

I am pleased that the bill will not change the Defence Act and that it sits within the regime of the current act. I am particularly pleased that this is the case, as it quarantines the use of the military in respect of industrial disputes, for instance. As legislators, it is important that we are always mindful of the future when considering legislation, and when it comes to appropriate involvement of Australia’s military consideration of its activities in light of the future is absolutely critical.

The amendments contained in this bill will not change the provisions enacted in 2000 in relation to part IIIAAA concerning the preclusion of these powers in industrial disputes or legitimate political dissent. This aspect of the bill allows, within the bounds that currently exist, fair and reasonable protest and industrial action to continue to take place without fear that the military might be called in to assist state or territory police to stop or put down such events.

I am pleased that this legislation has come before the parliament, and I am pleased to support the amendment moved by the shadow minister for defence and homeland security. Sadly, the reality of modern life means that we are in a situation where it is necessary to make sure that we as a nation and as a society are prepared for some sort of unforeseen and unpredicted attack on Australian soil. Thankfully we have had the opportunity to consider from the outside the reactions to events that have occurred in other countries, and through our forces and our intelligence networks clearly we are learning from those events.

No Australian wants to have to deal with the consequences of some sort of attack, but at the same time no-one wants more lives to be lost because of confusion or delay in mobilising the best possible response. The amendments contained in this bill will act to cut down time and confusion when it comes to such an event but will also set up reasonable and transparent processes for dealing with those situations in which the Australian Defence Force are called upon to assist in national emergencies.

I am pleased that these amendments fit within the existing Defence Act and that they also appropriately deal with the reporting requirements and avenues to deal with criminal activity if that is ever necessary. The evolving national security environment requires a response that deals with issues now but also provides the flexibility to adjust to a relatively fluid environment. I encourage members to support Labor’s amendments and I support the bill.

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