Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

Those who have contributed to the debate on the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006 thus far have focused on the changed threat environment that Australia may face as compared to the circumstances in which this parliament wrote the legislation that first codified the provisions in which call-out of the military in aid of the civil power was envisaged. I think that those observations are valid and justifiable, but I also want to stress today the significance of the changes that we are making, the importance of regarding the utilisation of the military as in fact the last resort and the importance of addressing some of the concerns the shadow minister has raised by way of the second reading amendment which he has tabled.

It is very important that we do not underestimate the significance of the changes we are making. The paradigm circumstances where previously call-out in aid of the civil power was contemplated were essentially those that arose post-Munich—that is, a terrorist event where some group of armed persons seize hostages and hold them, making demands of a political or other nature. Certainly it is true that the powers that were available by way of call-out could extend to a much wider range of circumstances. But the underlying training regime was focused around that kind of circumstance. It was the nature of the terrorist event that we most feared at that time.

I had the occasion, for about three years, to be the minister responsible under the then administrative arrangements for making the determination as to whether or not the call-out of the military would be approved. I should not kid myself: both the Prime Minister and the Minister for Defence would have had significant views were there time for consultation. Nonetheless, that formal legal responsibility at that time rested with me. In those circumstances, I took part in a number of training exercises. In those training exercises we modelled a response which tested the capacity of the civil authorities of a state to deal with a terrorist situation and then engaged in consultations involving me and state officials to determine whether or not call-out would be appropriate. But underlying it was a very grave sense and realisation that, were call-out to occur, the circumstances in which the military would engage would utterly transform the way in which that particular hostage situation could be dealt with because it would only be where ordinary civil policing was unavailable.

The resource that we most drew on was the SAS. The SAS developed extraordinary expertise in antiterrorist activities and a capacity to deal with those exercises in as timely a way as possible, given the fact that they were largely available only on call-out from their headquarters in Perth. The principal recognition that any minister would have in their mind when they approved such a call-out was that it was very unlikely that the use of the military in those circumstances could do other than resolve the situation through the use of lethal force. That was the capacity of the SAS. They were highly trained. In each of the exercises in which I participated as we trialled those responses, there was an underlying recognition that, were it ever necessary and if I ever had the responsibility of making that call, I would have to live with the consequence that in calling out the military there was a very high probability—if not a certainty—that the end result would be the deaths of, at least, numbers of those against whom the SAS were employed, as well as, hopefully, saving the lives of the hostages. That underscored the very great difference between civil policing, where the use of lethal force is reserved for, essentially, self-defence in most instances—although it is available in very limited circumstances other than that and used in very much a last-resort situation—and the military, where their training, protocols and experience condition them less to that restraint which civil police have built into them from the very nature of their engagement.

On balance I think these measures are necessary. But I do want to emphasise three things. Firstly, the circumstances in which the military can be called out have been very substantially widened. They do now include limited circumstances where the request of the state authorities will not have to be obtained. That leads to situations where the underlying rationale that previously existed—that the military would be under the direct command of the police commander—logically cannot apply. How those circumstances will play out in practice is an issue for the future. I accept that there are going to be situations of urgency—that terrorist events now present themselves in a much more urgent way than perhaps in the past—and so these greater powers and the greater utility of the use of the armed forces may well be justified. But I do think we first have to recognise that we have very greatly expanded the circumstances in which they may be called out.

Secondly, we now permit the engagement of the reserves. The reserves are not persons who are full time in the military. The capacity and circumstances for their training ought to be as good as those of the Regular Army in these circumstances, but that issue has yet to be tested on the domestic front. I would hope that that does not present a problem. In the past we have thought it inappropriate to use the reserves, and there were good reasons for that. Perhaps the greater integration of the reserves into the daily practice of the military and their greater capacity to be used in warlike situations now justify that decision. But, again, it changes the nature of the relationship between the reserves and the full-time military.

Thirdly, I want to stress the point that the military now engage, potentially, in much more controversial circumstances. The military do not wish to be an adjunct in ordinary circumstances to the civil power. It is against all the tradition and history of the use of the military. They are trained to be the sharp end of Australia’s capacity to resist attack, and to be sent to places of danger to protect the national interest. They carry, through that training, enormous responsibilities. They are very aware of quite substantial reasons why we ought to make certain that, in allowing these wider circumstances in which the military may be called on in emergency situations, we do not permit ourselves subtly to make a paradigm shift in our minds that they can be more appropriately used, more widely and more generally, such that we start to get an engagement of the military into civil policing as a matter of common practice. It is easy to use the words ‘of last resort’ but in fact find reasons to draw down too readily on that extraordinarily well-trained and capable resource.

Once we engage our military in civil policing to a large extent, it then inevitably becomes involved in substantial controversy. It might have become involved in substantial controversy even under the previous regime. The incident at Beslan, for example, where Russian troops entered a schoolhouse to relieve a siege, tragically resulting in the loss of lives of many of the schoolkids they were sent to protect, has generated a huge internal controversy. Even with the best intentions, some things go wrong. But we want to make it very clear that we do not want to engage our military in civil policing, in controversy, in circumstances where the legitimacy of the use of the military is ever in dispute.

I want to make it absolutely plain that I have no envy whatsoever for those ministers who now will carry the responsibility for approving the call-out of the military in circumstances of emergency. Particularly, I would hate to carry the responsibility for one particular circumstance that is anticipated and provided for in the bill. That kind of circumstance has been referred to by some of the speakers as the ‘post September 11 circumstance’—to deal with the possibility of an aircraft being seized to crash into some infrastructure or public place.

The member for Fisher put the proposition in the kind of language that has been used in this debate. He said that the ADF—I think I am quoting him accurately; I made a handwritten note—is the only agency with the power to take action to neutralise the danger. If we unpick that and put it more bluntly, it means that this legislation now empowers orders to shoot down civil aircraft with the loss of life of all those aboard in order to protect a larger public interest. I accept that, on balance, as a necessary response—to give our military or our governments the ultimate capacity to call out the military in aid of the civil power. But we should not hide behind language such as ‘neutralising the danger’. When we pass this legislation, we are actually authorising the use of the military to shoot down aircraft upon which we, our friends or our children may be passengers in circumstances where it is believed that a greater risk to larger numbers is involved.

I want to move to a second point about this legislation, which is to say that I regret that we have not had a greater opportunity to examine this, without the time frame of the Commonwealth Games standing as, I suppose, a point at which a failure to pass this legislation could be critical. The Blunn report, which reviewed our laws with respect to the call-out of the military to aid the civil power, reported on 2 March 2004. It is now only three to five weeks before the start of the Commonwealth Games. You will excuse me, Mr Deputy Speaker Quick; I have been following the advertisements, but I have not quite firmly placed in my mind when that great celebration begins. But it is not the way that we should deal with such significant legislation. Issues still remain—and I will come to those, particularly with the conflict-of-law problems—that really do need greater attention. It is unfair on this parliament that we be asked to address such a comprehensive and substantial package against that time frame, when we have had so much time that could have allowed for proper exploration of these issues and perhaps their more effective resolution.

I now turn to some of those issues because I think it is very important at least to explain the concerns that I have—which are reflected in the shadow minister’s second reading amendment—about the decision to apply the law of Jervis Bay to those soldiers and Air Force and Navy personnel who are called out to assist in the exercise of antiterrorism or the protection of events or infrastructure. What we are providing for is that, whilst they are subject to call-out, they will be subject to the criminal law and jurisdictions of the law of Jervis Bay. Broadly, if I can simplify that, that means they will be subject to the capacity of the Commonwealth to make specific provision or to disallow particular laws of the ACT. The law of Jervis Bay is broadly the criminal law of the ACT. It is quite similar, therefore, to the laws of jurisdictions which have adopted—not in whole but largely—the model Criminal Code provisions, which this parliament has passed.

But in Victoria, for example, where the Commonwealth Games are to be held, the underlying basis of the criminal law is quite different. Principles of criminal responsibility are quite different and the construction of the law, which is still based on the common law, is substantially different. Of course, there are a number of other jurisdictions where that is the case, including Queensland.

This creates potential problems when we expect the ADF to operate under the command of the local police, who will have a view as to that which is and is not lawful. The ADF will be trained under a simple single regime—and I understand the reason for that—but they will be operating in a diverse number of jurisdictions that have different criminal laws and notionally under a different police command, where the commanding officer will have a different understanding of the underlying criminal law. That, itself, may give rise to difficulties about the implementation of the broad perspective of making certain that the ADF operates under the civil control of the police commander on the scene.

The second point is: how do we deal with those occasions when things do go wrong? Some circumstances are quite easily imaginable and can be dealt with by dealing with the ADF under the law of Jervis Bay. But consider, for example, a joint criminal enterprise. Assume, for example, in a situation under great threat, that an evacuation is required and a joint criminal enterprise is engaged in between some rogue members of the ADF and local police or local citizens to steal some of the money that has been left behind. How can that matter be properly addressed, when some of the people involved will be dealt with under one legal system and some under a very different system? Equally, the decision whether or not to prosecute in one instance will be in the hands of the Director of Public Prosecutions with respect to the military, but with respect to the civil enforcement arms of the state and ordinary citizens it will be handed to the state DPP.

One of the underlying principles we have previously adhered to is that, whenever the military has been called out, it operates under the law of the jurisdiction of the state in which it is operating. The same law applies to the military as applies to the police, which is the same as applies to the ordinary citizen. We are changing that, and I think that some of the implications of that have not been thought through. Indeed, it is difficult to imagine how the law of Jervis Bay would apply to issues more complex, such as motor vehicle manslaughter. Some of the offences of criminal negligence are so defined in such a different way that there will be issues about how these matters should be dealt with. I am particularly concerned that the consistency of treatment is not going to occur, because the decisions will be made not by the DPP of the jurisdiction involved but by the Commonwealth DPP.

One would hope that effective cooperative arrangements will be worked out, but there is no certainty that that will happen, and that is one of the points to which attention has been drawn. In fact, in principle, we should not have our military operating under a different criminal law code than that applying to the police in the state or to civilians in the state.

Of course, if we ever do get into the kinds of terrible situations exemplified by the member for Werriwa—where assaults occurred on civilians, instancing the allegations against the British forces in Iraq or the terrible tragedies that happened in Beslan, which might engage joint activities between the police and the military—then these issues will come very much to the front in terms of controversy and the difficulties in dealing with the legal responsibility consistently. So I think there is advantage in giving attention and support to the second reading amendment. It does not prevent this legislation from coming into effect, but it recognises that there are some substantial issues of principle still to be resolved. (Time expired)

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