Brendan Nelson (Bradfield, Liberal Party, Minister for Defence) Share this | Link to 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.

Peter Lindsay (Herbert, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill be read a second time. Is leave granted to continue the debate?

Leave granted.

Robert McClelland (Barton, Australian Labor Party, Shadow Minister for Defence) Share this | Link to 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”.

Phillip Barresi (Deakin, Liberal Party) Share this | Link to this | Hansard source

Is the motion seconded?

Graham Edwards (Cowan, Australian Labor Party, Shadow Parliamentary Secretary (Defence and Veterans' Affairs)) Share this | Link to this | Hansard source

I second the motion and reserve my right to speak.

David Fawcett (Wakefield, Liberal Party) Share this | Link to this | Hansard source

I rise to support the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006. In broad terms, the bill is talking about allowing the utilisation of the Australian Defence Force to protect states and self-governing territories against domestic violence and to protect Commonwealth interests. The word ‘utilisation’ to my mind undersells the true impact that this bill will have. What we are really talking about is the effective and efficient employment of Australia’s defence personnel and the assets which they operate and maintain on our behalf. This comes at two levels. One is in terms of governance—the government being effective and efficient in its use of the Defence Force but also enabling the Defence Force itself to be an effective and efficient force in executing the roles and tasks that the government gives to it.

Before I move to the detail on that, I would like to support some of the comments that were made by the member for Barton about comments that were made by Senator Brown. This bill is not about creating a police state in Australia or creating a state where the military can do things with a free hand. This bill in fact empowers the Australian community, the Australian authorities and the Australian Defence Force to work together within an agreed framework where there are numerous checks and balances. I welcome the provisions, because they give a high degree of certainty to our service men and women, who need to understand the environment they are working in—the constraints they have to work to and the constraints they have to train to—as well as informing the civil authorities of the roles and tasks that they can reasonably expect the Defence Force to carry out.

I talked about efficient and effective employment at two levels. One is the government side. The government has a responsibility to make sure that it has the options to respond to changes in threats—and certainly the threat of terrorism. If we consider warfare, and more specifically asymmetric warfare, we can see that the threats to Australia have changed significantly over the last decade. It is appropriate that we change our legislative structure so that we can best utilise the resources and capabilities we in this nation have to respond to that. There are obviously synergies that can be gained by better cooperation between the civilian agencies and powers and the Defence Force so that our use of resources is timely and effective whilst retaining the checks and balances that are important.

More specifically, I would like to talk about how this legislation underpins the kind of effectiveness and efficiency that our Defence Force needs. The public expectations about what defence forces can do are probably really well seen in the example of Hurricane Katrina in the United States of America, when people just expected that at the click of a finger you could swing a national defence force into action and go down and actually resolve a situation. And that was in a situation where there was nobody shooting back at you: it was a natural disaster.

If we are going to give our Defence Force a task, it is important that we also give them adequate opportunity to raise the capability to complete that task. When Defence considers capability, it considers a range of things, starting with people, the organisational structures and the interfaces between the organisations. There are the support networks that have to be in place not only to allow the initial deployment but also, importantly, to sustain the force for the duration of the operation, whatever that may be. There is also the training that is involved for the operations which we love to laud Australia’s forces for. We also need to recognise that we have to fund the training that they require so that they can practise the work together, practise the kinds of scenarios they need to be involved with. We need to make sure that the equipment is up to speed. And, importantly, the doctrine is the last element of capability that the Defence Force considers.

Without this underlying legislation, which clarifies for the Defence Force the roles that they may be called upon to actually act in, they would not have the guidelines they need to develop appropriate capability covering all those elements: people, organisation, support, training, equipment and doctrine. All those things will have an impact on their operational concept. Those guidelines and further government guidance will also then dictate the levels of readiness that they actually attempt to hold forces at in order to respond to crises as they occur.

This legislation outlines a number of areas that are the starting point to this. Specifically, I welcome the assurance this legislation gives that no matter where a serviceman is called out they will be operating under one Criminal Code. There will be certainty there in their training and the subsequent employment of that training. They will have one set of guidelines they are working to across Australia—and indeed when they are deployed offshore in the maritime environment.

Importantly, this also includes some of the checks and balances. While we talk about ‘the law’, meaning Jervis Bay law, that they will all be accountable to, to counter some of the accusations and scaremongering put up by people in the other place, such as Senator Brown, there are also very specific amendments in here to put the onus onto individual members. If the scenario changes after they receive their initial orders or if in fact they realise that there has been a mistake of material fact or a misunderstanding, the onus and the obligation is on them to not just mindlessly follow through with orders. The concern regarding the defence of superior orders that was raised by Senator Brown is actually specifically addressed in here. We utilise the independence and the high level of training of individual members of the Defence Force to give them a direction and a common set of guidelines but also to put on them that onus that they use their own initiative and their own perception to make sure that carrying through that order is not only manifestly lawful but is also appropriate given the unfolding circumstances.

This legislation talks about the reserves and the utilisation of reserves and therefore has significant training and readiness implications for those reserve forces. If the public expectation is that the government can turn around at short notice and call out reserve forces, then it gives very clear guidance to our Defence Force about the level of commitment they need to put into the training, support and readiness levels of reserve forces so they are actually at a point of competence to carry out those tasks. Increasingly, where reserves are embedded with regular forces, that is becoming an easier thing to manage, but in the past many in the reserve have felt the poor cousin. If this legislation is indeed giving the direction that we want reserve forces to be able to be used at short notice, then it also provides a very clear mandate for appropriate resourcing and training for those reserve forces, so that they are equipped to do the tasks that the government and public expect of them.

The legislation also gives guidance to the fact that critical infrastructure needs to be discussed and agreed ahead of time between state and Australian government authorities, such that the military can work with their civilian counterparts not only to identify them but also to develop the scenarios and to conduct joint training on how those two groups of people will work together in different scenarios to protect that infrastructure. The last thing that you would want is for people to be given the job of protecting something at short notice and then discovering along the way what is involved and who else is a stakeholder in that whole exercise. Clearly identifying it up front will enable that scenario planning to take place.

Importantly, the call-out is now also covering actual and potential threats to Commonwealth interests in the air and offshore environments, rather than being focused purely on the land environment. Again, this has a large impact on the preparation of capability. It is very easy to think about putting a group of special forces troops into the back of a helicopter but, if they are going to do a lot of operations over water, you then need to start addressing things like helicopter underwater escape training and the use of personal breathing devices in case of ditching. There is a whole raft of duty of care considerations that have impacts on the timing and on investment in our capability. Not only do we need this legislation but we need to follow through with the resourcing to enable people to train to an appropriate level of readiness.

The provisions here that make sure that the broadcast provisions of 51K do not apply are also important. As we have seen just recently with civil disturbances, the advent of instant and mobile communications, such as mobile phones, SMSs, email et cetera, means that very quickly something that is happening in one place can be relayed to people in another, which can seriously undermine the surprise element and the security of our forces. So this is a very appropriate provision to place in here to ensure that our forces and their activities are not compromised.

Lastly, the expedited call-out arrangements are appropriate. Again, given the very rapid nature of recent terrorist incidents and given the fact that some of the figures, such as the Governor-General, may not be available within the time frame that the old legislation allowed for, it seems eminently appropriate to detail the framework that we wish people to operate within but then to provide several redundant layers of authorisations such that we can have that efficient and effective employment of the Australian Defence Force when it is required in support of the defence of Australia.

I support this legislation, not only because it clarifies the legal position but more importantly because it provides good guidance and a starting point for the men and women of the Australian Defence Force as they look to develop each of the elements of capability that they need to fulfil these roles that are expected of them by the government and the people of Australia.

Graham Edwards (Cowan, Australian Labor Party, Shadow Parliamentary Secretary (Defence and Veterans' Affairs)) Share this | Link to this | Hansard source

I am pleased to be involved in this debate on the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006, given the way the debate was led by the minister; the very good response from the member for Barton, the ALP spokesperson on Defence; and the very good contribution from the member for Wakefield, who has just spoken. Certainly the member for Wakefield’s speech indicated a working knowledge of what it is that the men and women of the Australian Defence Force require in circumstances where they are called out.

One of the reasons this bill is before the parliament is that in the past the Australian Labor Party has insisted that legislation relating to national security be the subject of statutory review. Members opposite were highly critical of this move, but the ALP’s stance—back in 2000, I think, in relation to the bill that came through then—has shown its worth and borne fruit in these amendments. I say that because these amendments are the product of proper review and analysis by capable, competent people. This review was carried out by Anthony Blunn AO and General John Baker ACDSM and the report was tabled in parliament many months ago. If I had a criticism, that criticism would be that the government could have—and probably should have—moved on these amendments some time ago.

The government sat on the review’s report. It is interesting that once again, on an issue of critical importance to our national security, we are being asked to debate important legislation under a tight time frame—on the eve of the Commonwealth Games. I am sure the government want this legislation through so that they have the measures contained in this bill available to them before the Commonwealth Games begin. I wonder why it is that, once again, we have such a tight time frame for debate on issues of national security and national importance.

The review carried out by Blunn and Baker was an important one, and it made a number of observations. The member for Barton has already gone through most of these, so I will not go through them all again. However, I intend to go through some. Blunn and Baker’s observations included the observation that existing procedures for civil call-out have been time consuming and complex and have had a capacity to limit the effectiveness of the call-out while also being restrictive by focusing on siege and hostage situations. The review showed that security threats may be mobile or may occur at different geographical locations. Once again, the member for Barton expanded on this. The review also found that restrictions imposed on the use of reserve forces were unjustified. I will talk about the reserve forces a little later on.

The review also highlighted an unacceptable lack of clarity in respect of the legal responsibilities of ADF members, who could be called upon to undertake tasks in the various state and territory jurisdictions of Australia. Probably one of the most important and crucial findings of the review was that the existing legislation did not reflect the evolving threat environment. I think it is a major problem when legislation as crucial as this lags. I suspect that part of the reason that it did lag was that simply not enough work went into the original legislation. Certainly it was not quick enough nor was there adequate review of the legislation by the government.

Members would be aware that a Defence submission was provided to the Senate. The Senate pointed out a number of things which complemented the review and the legislation—for instance, Defence’s submission pointed out that terrorist techniques now commonly involve the use of innocent bystanders as targets, rather than the taking of hostages; that mass civilian casualties are often the terrorists’ objective; that suicide is now a common method of attack by terrorists; and that warning times of impending action may be extremely short or indeed non-existent.

Defence also suggested that cooperation between agencies and jurisdictions is essential to obtaining better intelligence, to conducting more sophisticated surveillance and border controls and to providing adequate warning. As a former minister for police in a state jurisdiction, I was constantly appalled at the lack of cooperation not just between the various jurisdictions within Australia but sometimes within the internal workings of organisations.

One of the most crucial aspects of law enforcement and keeping our community safe is the sharing of intelligence. To achieve that, there must be trust between the jurisdictions and there must be trust between the agencies. There must also be trust between the people who run those agencies. In the face of events over the last few years, there has been a big improvement in these areas but I think we still have a long way to go, not just between federal agencies but between states, territories and Commonwealth agencies across the board.

The Defence submission also observed that there is likely to be a greater call for anticipatory action involving the ADF in order to respond to intelligence and to secure potential targets indicated in assessments. The things I said just a few minutes ago underline just how crucial it is to ensure that we do try to stay in front of terrorist actions, and this will only happen if there is a good sharing of intelligence. The Defence submission also noted that incidents may go beyond one site and involve rapid movement and that chemical, biological and radiological agents may be used in a situation. Of course in situations like the latter one, authorities need all the expertise they can get.

It is understandable then that this review of the legislation would observe the need for flexible call-out procedures and also the need to enable effective preparation and training of the ADF in situations where they may be called out in support of state or territory agencies involved in domestic security operations. It is incumbent upon this government and the ADF to recruit, skill, train, outfit and support members of the ADF so as to ensure they meet the high standards and have the capacity to meet the changing threat environment.

These amendments also extend the areas of ADF involvement into aviation, offshore marine and designated critical areas of infrastructure. They have already been dealt with, so I do not intend to go into them. But, importantly, as was noted by the previous speaker, this bill also goes to the area of legal authority, to enable ADF members to take necessary actions in achieving their tasks. It also gives them legal protections. However, it does not give them authority to operate outside Australian domestic criminal law. Members of the ADF must have legal authority to carry out their tasks, and they must also have legal protection to ensure their own security when operating within the law. They must know that, in the event that they are called out, the law is clear and their position is not in any way compromised by interactions between differing state, territory or federal laws.

The recent case of the special forces soldier who was hung out to dry by his superiors following an ambush situation in East Timor is, in my view, a blot on our military history. Members of the ADF doing their job must be protected by the system. They must be protected by clear and concise law, and they must be protected by their superiors. Most importantly, we in this place and those in the other place have a responsibility to ensure that our laws are clear, that they are concise and that they do protect the men and women of the ADF who are on the sharp end, doing a pretty fine job on behalf of our nation.

Like the member for Barton, I also want to reassure people who have contacted me that these amendments do not change laws in relation to the industrial situation in Australia. This bill does not amend section 51G of the existing act which provides that the Chief of the Defence Force must not stop or restrict any protest, dissent or assembly or industrial action, except where there is a reasonable likelihood of death or serious injury to persons or serious damage to property.

In conclusion, I say to the government that, in an ever-changing threat environment, reviewing legislation is just one of many tasks that government must be on top of when it comes to security issues. Clear and flexible call-out guidelines are important to all in the ADF, as are close relationships and good arrangements for the sharing of intelligence between various jurisdictions and state and Commonwealth agencies. So too is the need to ensure that there is clear understanding between the Chief of the Defence Force and state and territory commissioners of police in respect of a call-out of the ADF in support of civilian authorities.

It is also crucial to ensure that appropriate members of the community are recruited for and retained by the ADF, including the Defence Reserves. This is particularly true when the threat is constantly changing and evolving and not restricted to one geographical location. Australia is a big country, a big nation, and the government must recruit people to the Defence Reserves and support and retain them there. I believe a major review of how we go about attracting people into our Reserve is crucial. However, what we cannot afford in this particular area is a government more accustomed to procrastination than to action and innovation. Having said that, I join with other members of the opposition and support this bill.

Peter Lindsay (Herbert, Liberal Party) Share this | Link to this | Hansard source

I rise with some authority tonight to speak on the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006. I represent Australia’s only garrison city—the city of Townsville, Australia’s largest tropical city. It is the home of Australia’s 3rd Brigade, 11 Brigade and RAAF Townsville. I speak on behalf of the men and women of the 1st Battalion of the Royal Australian Regiment, of the 2nd Battalion of the Royal Australian Regiment, of 3 Combat Engineer Regiment, of 4 Field Regiment, of 5 Aviation Regiment, of Joint Logistics North Queensland, of 10 Force Support Battalion, of the Combat Training Centre and of RAAF Townsville.

I have some experience with the military—a fine group of men and women—and I can tell the parliament tonight that the military in my constituency warmly supports the bill tonight. It warmly supports the bill because the bill clearly defines what is go and what is no go. It takes into account all of the issues that have arisen since the last amendments were put through this parliament, and they are very important amendments. The men and women of the Australian Defence Force know and understand that the government will never compromise their position or the position of Australia in defending our country against acts of terrorism or certain other acts where military intervention might be prudent and appropriate.

Of course, the government recognises—and this will always be the case—that state and territory police and emergency services will be the first response mechanism to any incident. But we also recognise that defence aid would be contemplated where the scale of the incident proved beyond the capacity of the civil authorities. That is sensible, and I think the people of Australia understand that. Australians have nothing to fear from the amendments that are being proposed to the House this evening. These amendments will certainly make very clear the roles and responsibilities of the military and of those who are in command of the military. They will also make very clear the roles and responsibilities of the executive of the government and what they would have to do to initiate a defence response if it were ever needed.

The 3rd Brigade has been involved in virtually all of Australia’s actions in the last 20 to 30 years. Most of these actions have been overseas, but 3rd Brigade men and women and RAAF and 5 Aviation Regiment soldiers are also scattered through the Commonwealth of Australia. It is quite delightful when I turn up somewhere other than Townsville and meet a member of the Defence Force from home. But the point is that, in being spread across the Commonwealth, they will be captured by this legislation. Being overseas, they will be captured by the legislation. Right now, we have men and women in Iraq, in Afghanistan and in the Solomon Islands, and of course we have had men and women from the Australian Defence Force from Townsville in Timor, Bougainville, Rwanda and Somalia.

While on that subject, I will just pay a compliment to the Minister Assisting the Minister for Defence, who is in the parliament tonight, for his decision in relation to Rwanda. It is very important to many members or former serving members of the Australian Defence Force who chose to remain living in Townsville. I pay a tribute too to Brigadier Mick Slater, Commander of the 3rd Brigade, who has certainly been a magnificent officer. There are just so many terrific officers these days in the Australian Defence Force. They know and understand the importance of this legislation in the parliament this evening.

Of course, Townsville is also home to 11 Brigade, which is a Reserve brigade. Its interests are protected by the first of the nine areas in this amendment bill tonight—that is, in relation to the current restrictions limiting the use of reserves. Those are going to be changed, and so they should be. Reserves are playing an increasingly important role in the Australian Defence Force in these times. Indeed, there are currently reserves from 11 Brigade from Townsville serving in the Solomons. They will be captured by this first amendment but also by the amendment relating to the offshore division within part IIIAAA.

The provisions about the identification of ADF personnel are a commonsense amendment. Certainly no-one in this parliament would want our special service forces identified in times of response when tactical assault mechanisms are invoked. I do not see any difficulty in that particular amendment. Australians will not see any difficulty with the provisions about public notification of ADF activities, where clandestine siege or hostage recovery operations will not be publicly notified. Australians would not expect those sorts of situations to be publicly notified.

In part IV is the resolution to resolve mobile terrorist incidents. Of course, terrorist incidents may be fixed or mobile, so that part addresses the siege or hostage situation where things can be moving along.

Some concern was expressed to me about the expedited call-out procedures, but I listened very carefully to the second reading speech by the Minister for Defence here in the House of Representatives and I think that his comments would have satisfied any Australian that the protections involved in these call-out procedures are very rigorous indeed. No-one is seeking to do something under cover. These procedures will be open; certainly there will be a traceable record. Things will be in writing even when the orders cannot be in writing—and the Minister for Defence outlined that—and that will all be traceable. That is a great protection of accountability that this bill incorporates.

In relation to critical infrastructure, I think of things like mass transit systems, airports and the Commonwealth Games. Again, the Australian public would have no difficulty in welcoming amendments that will ensure their safety if need be.

The Defence Force is not going to be called out lightly, but the civil authorities will know when the level of threat is such that they cannot handle it with their resources. They will know when it is time to call in or request the help of the Australian Defence Force. The member for Cowan quite rightly reflected on soldiers having to obey the law nevertheless, and provisions to that effect are in this bill. Soldiers themselves have no problem with that part of the amending of the act.

Our time on this bill is limited, so I am going to finish here, but I do want to say that Australia’s paramount interest and the government’s paramount interest is in maintaining the safety and security of the Australian people. We would be failing in our duty if we did not do that. I welcome the support of the Australian Labor Party for these amendments. We will provide a cautious and consultative but expeditious response that will allow Australians to be protected by their own Defence Force at all times, if necessary. Therefore, I support the bill.

Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to 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.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

It is perhaps an unfortunate fact of life that we are having, given the international situation, to debate the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006. Having said that, it is a bill I strongly support, and I welcome the fact that the opposition is also giving its backing to the government in this important legislative change. I do not see that the matters raised in the pious second reading amendment moved by the honourable member for Barton should be dealt with in this particular environment. They are not major matters. I want to say how pleased I am that on occasion the parliament can work together to improve the security of Australia.

This bill follows several others over recent years which have facilitated amendments to various Australian acts as a consequence of the sad but real increased presence of terrorism in the world today. Speakers on both sides of the House have recognised this changed environment, the fact that the global psyche is somewhat different and the fact that we now must be ever vigilant about the need to, whenever necessary, bring forward legislative changes to keep up with any new threats which arise. The bill proposes amendments to the Defence Act 1903 with exactly that underlying motivation. It is pretty clear that in the 103 years since the Defence Act 1903 was enacted the world has become quite a different place. Changes are clearly required from time to time, but I suspect that the changes in the international world situation have been more dramatic in recent years than in earlier years.

The bill has the primary function of streamlining and overseeing the use of Australian Defence Force knowledge, assets, skills and expertise, when required, to offer more efficient high-level protection to Australian government assets. Threats can come via sea through hostile ships, through land based organisations and from the air, as we saw through the September 11 tragedy in the United States. The bill will simplify the process by which the Australian Defence Force can be called into action promptly and effectively to counteract any arising threat.

The bill also makes clear that the ADF must only be called in as a last resort—that was a point also made by the member for Werriwa—and that, in spite of the fact that they may be the best equipped and best manned to defend Australia during such threats, they are still to acknowledge the jurisdiction of the protective forces and the governments of the states and territories that they are assisting. I think that is a really important, fundamental principle that in a federation we must all recognise.

The bill authorises the use of the ADF to counteract threats to Australian government assets such as transit systems and venues of mass gatherings such as sports events for the purpose of protecting the assets as well as sustaining human life. Of course, the Australian Defence Force can also act in these circumstances to protect assets that are not actually technically assets of the Australian government. In addition, infrastructure that is not inhabited but the disabling or destruction of which might indirectly cause injury or loss of life will also be able to be protected by the Australian Defence Force under the changes in this bill. These would include, for instance, power stations in which disruption to power could cause problems for the patients at hospitals and so on. In the situation where a Commonwealth asset is under threat by air, the ADF is recognised as the sole authority that is in any position to react to and neutralise such a danger. In all threat situations, the Australian Defence Force would of course work in conjunction with police assets.

This bill is not about doing away with federalism and taking away the rights and powers of the states and territories; it is about clarifying the circumstances in which the Australian Defence Force will be able to be called into action by the states where there is desperate need. This bill is all about ensuring that the sovereign rights of those states and territories will be recognised during times of heightened threat. The bill outlines the specific responsibilities of the forces in such circumstances, the due process that must be followed to make sure that such military manoeuvres are within the law and the requirements of ADF members in such situations. The ADF currently has authorisation under legislation to take action onshore in the prevention of terrorism. The permission for such action is currently authorised under the executive powers of the government. That arrangement does not give the ADF the same power and protections as given to any land based activities. That abnormality is rectified by the bill.

All of us would agree that it is preferable that consultation should be made, if possible, with the relevant government of the state or territory that is under threat, but one would appreciate that in this bill there is provision for prompt action to be taken when an urgent situation arises and when time is of the essence. The bill, as you would expect with a reasonable bill introduced by the coalition government, includes safeguards, including that the Governor-General, controlling ministers and the Prime Ministers are key to authorising certain requests for ADF action. In initiating the ADF action, authorising ministers must always consider Australia’s international obligations. That would be a matter much to the heart of the honourable member for Denison. In a changing world, with the evolution of new and dangerous threats to Australia, the changes set out in this bill are vital to ensure that our Defence Force and the laws and procedures by which they are governed keep pace with the very real requirements of peace and safety in the Australia of 2006.

We have an evolving threat environment, and all of us are concerned about it. We all might have different responses at different times to what we see as being the threat, but this threat environment is presenting increasing challenges to state, territory and federal governments. The scope of the threat outlined within the statutory review has been reinforced by recent terrorist operations, both regionally and globally. It is interesting to note that terrorist techniques now commonly use innocent bystanders as targets rather than simply as hostages. Mass civilian casualties may be a terrorist objective. Suicide is commonly used by terrorists. Warning times of impending action may be very short or non-existent. Deterrence is not a realistic concept against terrorist groups or individuals welcoming martyrdom in support of their cause. Much greater reliance must now be placed on intelligence, surveillance and border controls to provide adequate warning and a first-line defence.

There is likely to be greater call for anticipatory action possibly involving the ADF to secure potential targets indicated in intelligence assessments. The approval process for the authorisation of military assistance to the civilian authority after call-out must be available at very short notice or delegated at the time of call-out in limited circumstances, such as APEC or M2006. Incidents may go beyond a single site and consist of a series of situations or involve rapid movement rather than a static stronghold. The use of chemical, biological, radiological or nuclear agents in urban environments cannot be ruled out. A terrorist incident at one site might prompt the need for concurrent protection of other targets across Australia.

The bill currently before the chamber includes nine areas that are the focus for amendments: the use of reserve forces in domestic security operations, the identification of ADF personnel, public notification of some ADF activities, ADF powers to resolve mobile terrorist incidents, expedited call-out procedures, critical infrastructure protection, the role of the Commonwealth Director of Public Prosecutions, the creation of an aviation division within part IIIAAA and the creation of an offshore division within the same part. I mentioned that this is a very important bill. It is a bill that is fortunate to enjoy bipartisan support. I hope that it has a speedy passage because, given the environment of 2006, we must remain ever vigilant. The minister and the government are to be commended on this legislation. I hope the House rejects the second reading amendment moved by the honourable member for Barton. This is an important bill and it is important that it proceeds immediately. It is important that it be enshrined on the statute books because the result will be a much safer Australia, and that is a good thing.

Duncan Kerr (Denison, Australian Labor Party) Share this | Link to 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)

Cameron Thompson (Blair, Liberal Party) Share this | Link to this | Hansard source

The Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006 is an important piece in the armoury of our country when it comes to a whole range of different levels of security. The prospect of terrorism in our country has been advanced again and again in recent times, and it is plain across the board that the kinds of preparations we need to make today are so much more extensive than ever before. The preparedness we require from our emergency services, our police forces and the military and the levels of coordination we need between all those individual groups, as well as coordination between federal government, state governments and local councils—the whole community effort that must go into preparing for and, if need be, repelling a serious incident involving terrorism or some form of attack on our nation or our communities—are so much more comprehensive. It is a requirement for us to be vigilant, and this piece of legislation goes to that need.

In my electorate of Blair, the perception among ordinary people on the street is that we are living in difficult times, with the threat of terrorism emerging and strengthening. People on the streets of Ipswich, Kingaroy or Gatton want to know that governments at all levels are working together effectively on this question and that there is no dispute or grey area left in the debate. It is rewarding for them to see the spirit of cooperation that is occurring between the state and local authorities and the Commonwealth and the extensive discussions that are going on between the various emergency services and military authorities to square away any outstanding issues.

This piece of legislation comes in the wake of legislation in September 2000 before the Sydney Olympics which paved the way for the smooth running of the Olympics. It certainly did, but the amendments that were put forward at that time contained many of the features and addressed many of the issues that we address today. It was opportune for Australians that we had the opportunity to prepare and to run through some of these questions earlier on because, in the wake of September 11 2001, we have had the advantage of putting in train many of the issues and addressing many of the questions of that earlier time. To revisit them now in the light of this higher level of threat is, I think, one of the reasons why we have such good cooperation, why we have such effective commitment to delivering laws that are workable and why we have an appreciation of the potential threat to our communities. When I say ‘the potential threat to our communities’, it extends to all kinds of levels. We want to protect people from and prevent acts of violence, and we want to be able to recapture a location or a thing, seize dangerous items related to a threat, control the movement of persons or a means of transport and evacuate people to a place of safety. These are powers that are provided to the ADF in support of civilian authorities under this legislation.

The legislation clarifies the role of the Commonwealth Director of Public Prosecutions. It provides for critical infrastructure protection, expedited call-out procedures, ADF powers to resolve mobile terrorist incidents, public notification of some ADF activities, the creation of an aviation division under part IIIAAA and an offshore division under the same part, the identification of ADF personnel and the use of reserve forces in domestic security operations.

There has been unanimous and fairly comprehensive support for this legislation from the opposition. A very positive attitude has been expressed in relation to this legislation across all political points of view—apart from one, that notably being the Greens’ spokesman in the Senate, Senator Brown. The charge that he put there linking the development of this legislation to the defence used by Nazis at the Nuremberg trials, where guilty parties claimed to be only carrying out the orders given to them by their superiors, is a form of extremism that flies in the face of logic and the strong supervision and careful analysis of this bill by every other party in the parliament and by relevant organisations within this country.

For Senator Brown to use that analogy—it might be tempting to say that was a cheap way to try to get a headline—is a form of extremism that I think would be worthy of the Nazis themselves. To advocate that kind of conspiracy theory, that kind of anti-Australian motivation, that kind of twisted motivation, and to link that to the motivation of the government in seeking to represent the needs of Australian people and indeed the opposition is reprehensible. It deserves short shrift from everyone in this House and it deserves to be noted by people because, by making such absurd and extreme statements, Senator Brown undermines the credibility of his party. Many would say it is pretty hard to undermine the Greens’ credibility further than it already has been but he has done that. It is good to see the all-round condemnation that has been heaped upon him—from the government benches, from the opposition and even from the Democrats. It is good to see those absurd words being outed in that way.

There have been amendments agreed to in the Senate that affect this legislation: the provision of a third tier to streamline the call-out process; and a mechanism to consult the relevant state and territory within which incidents are occurring, except in instances of exceptional circumstances regarding the protection of critical infrastructure. These are important amendments. The change in the call-out process provides a third tier. The two tiers initially provided were the Prime Minister, and the defence minister and the Attorney-General, as the two tiers from which a call-out authorisation would be sought. Now there is a third tier inserted, which includes the remaining authorising minister, and one of the Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer. That provides the necessary flexibility, because we are dealing with incidents that can happen very quickly.

Terrorist techniques are commonly aimed at using innocent bystanders as targets. There can be an objective sought by terrorists of mass civilian casualties, of infrastructure as a possible target and of suicide bombing. And warning times, if they exist at all, can be very short. These new and emerging threats require and challenge the government and all authorities to be creative in thinking ahead as to what possible atrocity might be visited upon us next.

Members opposite spoke at quite some length about Beslan. In the wake of September 11 there was commentary to the effect of saying, ‘How far will terrorists go? How inhuman can they be?’ People who watched with horror the events of September 11 were dragged to a new level of disgust by what occurred at Beslan. The bestial behaviour of the terrorists in that incident left people wondering what kind of downward spiral the world was heading into. It required the authorities in Australia and in every country of the world to probe the very depths of their imagination to try to outwit this kind of downward spiral, to look down to the lowest common denominator in every case and forewarn us, forearm us and prepare us for that kind of eventuality, as gross as it might be.

In this country we are so very fortunate because we have not been visited with the shocks that we have seen in London, on the Continent or in the US—we have not been visited by that kind of terror. But the government has nonetheless been advancing our position and preparing the position of the armed forces in our country. One thing I am immensely proud of, as the member that represents the good personnel of the Amberley Air Force base and the district that supports it, is the unanimous vote of confidence that I get as a member of the government for the good work that has been being done by the minister, by the cabinet, by the government in general in investing in defence and in providing greater support for defence. We have seen the development within Australia of new hardware providing support for the defence forces, which would be called on in the event of a terrorist attack such as is contemplated in this bill.

We have seen the emergence of these new, upgraded AP3C Orion surveillance aircraft and, from what I have seen of their performance—including being fortunate enough to be involved in their activities over the Gulf, in operations in support of military activities in Iraq—those aircraft are able to contribute immeasurably to the detection of smuggling operations and all kinds of basic surveillance activities. They can identify and report, and connect people on the ground through a method of surveillance that delivers up a real-time example of what is going on on the ground and provide situational awareness for commanders in the field. The AP3Cs are available for use not only in an event such as the Iraq situation but in the sorts of circumstances that are contemplated here.

In Amberley at the moment we have started construction of the Wedgetail aircraft, an airborne early warning and control aircraft. Two of those aircraft are currently under construction in the States and another four will be built at Amberley. Those aircraft will provide the latest and greatest in airborne early warning and control measures to support our troops. Once again, these aircraft are to be used as support in an event such as this. The government has had the foresight to move for the purchase of Abrams tanks to replace the existing armoury within the Defence Force. We have seen the decision to purchase air-to-air refuelling aircraft of the latest generation—not converted 707s, but new, effective aircraft.

Today we have seen more F111s flying on a daily basis around Amberley than have been in the air for many years, and they are equipped at a higher level. It is incredible to think that at the time of the first Gulf War those aircraft could not be sent into the theatre of conflict because they were lacking in the electronic countermeasures that would be needed to operate in such a theatre. That is no longer the case today. Those aircraft are about as sharp as anything in the theatres of conflict anywhere in the world. The aircraft remain an absolute deterrent not only for potential belligerents internationally but also for international terrorists. We have also seen new initiatives in relation to air warfare destroyers. We do need to provide the best facilities and equipment. These things all provide our defence forces with the confidence that they need.

Also, when I was visiting Iraq recently, we heard a never-ending series of comments in support of the kit being provided to our soldiers in the field. We heard universally from the soldiers that we have good equipment, the best equipment: night vision equipment, boots and camouflage gear. While we were there the American soldiers, in particular, were very jealous not just of the camouflage equipment provided to our troops. The ASLAVs were also very much a source of jealousy for the American troops and the British troops, who were looking at our equipment with envy, knowing that it is the best in the theatre and that it provides the best deterrence.

It is ironic that there should have been recent criticism of this equipment, since UK troops are driving around Iraq in the Land Rovers left over from Northern Ireland and our troops are protected in ASLAVs. Soldiers in country after country are lining up asking, ‘Where do we get these ASLAVs?’ They look at the camouflage gear and say, ‘If only we had some of that stuff it would be far more effective than what we currently have.’

It is a great source of pride to me that our equipment is of such a high standard and that our government is so focused on the needs of our Defence Force. It is a need that relates not only to the war-fighting capacity of our troops but also to their capacity to respond to terrorism. Terrorism is causing a great shiver to those in the Australian community. We want to see this level of effective communication, consultation and coordination between all levels of government, and under the legislation that is laid out here we have that. I am very proud to say congratulations to the minister and to the government on the contribution that they have made.

Jason Wood (La Trobe, Liberal Party) Share this | Link to this | Hansard source

I rise in support of the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006. We live in changing times. Preparation for serious emergencies has taken on a new dimension since the terrorist attacks on the United States on 11 September 2001. Attacks continue around the globe, and no country is impervious to these hostile attacks.

To list only some of the devastating international terrorist attacks since the deaths of 2,986 civilians in the September 11 attacks, in a snapshot: there were 21 Western tourists killed in Tunisia, 202 killed in Bali, 45 killed in Morocco, 12 killed in the attacks on the Marriott Hotel in Jakarta, 27 killed in attacks on British targets in Istanbul, 192 killed in Madrid, nine killed in the attack on the Australian Embassy in Jakarta, 35 killed in Egypt and 56 killed and over 700 injured in the July 7 London bombings.

We know that the threat of terrorism in Australia is very real; it is not hypothetical. Anybody who takes this threat lightly puts our country in grave danger. No country can be too prepared. We know that the nature of the threat is constantly changing and evolving; so too our response must evolve so that we can be as fully prepared as possible. In the event of a terrorist attack we want to act swiftly and effectively. Today, our emergency planning is one of our best weapons. It will prove crucial in responding well to such an event. We will not get a second chance; there will be no dress rehearsals.

The proposed legislation before us today is crucial to our emergency planning. It will make sure that the Australian Defence Force can be called upon to respond quickly to a threat to Australia’s domestic security. It will provide a clear legislative basis for the involvement of the ADF to assist our civil authorities, such as police, where currently there is a range of limitations. The current legislation presents many difficulties. It does not reflect our changing threat environment. There are too many processes to go through in order to coordinate an immediate response to a terrorist attack. These processes take too much time, time which could mean lives.

For one of the best examples we have as to how our current legislation works we need to go back to the 1978 Hilton bombings. On 13 February 1978 it took all day for the approval process to allow the ADF to assist New South Wales authorities. Deliberations went on for hours, as was required in the legislation’s call-out process. This process involved the Prime Minister, the Minister for Defence and the Attorney-General, who each needed to be satisfied that a domestic violence incident was occurring or likely to occur. Afterwards, the Governor-General was also required to issue a written order. The harsh reality of our current climate is that we need to be able to call out the ADF much more quickly than this process allows.

In the Howard government sponsored Mercury 04 exercise, in my previous life as a senior sergeant with the Victorian Police counter-terrorism unit, my role was to advise senior officers on the call-out procedures for the ADF, along with other roles. I can inform the House that the current process is very convoluted, time consuming and complex, as you have the police, the ADF and state and federal governments checking and double-checking with teams of legal experts, trying to ensure all legal requirements have been met. In times of crisis you do not want to be debating: ‘Does this situation meet the call-out for the ADF? Who has authority to call out the ADF? Have all the forms been filled in correctly?’ What you want is the ADF on the ground directly responding to a terrorist attack. These laws were not helpful during the bombings at the Hilton Hotel in 1978. Today they would be just as restrictive, especially in the context of a rapidly developing terrorist attack, which requires an immediate, urgent response, not a drawn-out legal process.

This is a frightening scenario. We are dealing with terrorists who aim to cause mass civilian casualties. We are dealing with terrorists who may not confine their attacks to a single site. We are dealing with terrorists who do not care whether they die during an attack. In future they may use a range of deadly biological, chemical or even nuclear weapons, giving them the capability of inflicting mass casualties. The most worrying aspect of all of this is that there is likely to be no warning.

To be prepared we need much more operational flexibility. Assisting civilian authorities quickly in the event of a terrorist attack requires that the government be given broader powers to make call-outs. It also requires the expansion of the legal powers of ADF personnel when they are undertaking operations to aid our state police. It is vital that we remember, though—and I wish to remind the House—that, despite these legislative changes, the ADF would still remain a last resort in domestic security operations. There is still a hierarchy of power in response to an incident. The ADF will only be called upon to respond to an event which proves unmanageable or overwhelming for civil authorities. All this legislation will do is to make the process of calling upon the ADF much quicker and more efficient.

Under the proposed amendments it is only the Prime Minister who would need to verbally consent to a call-out of the ADF. If the Prime Minister were not available then consent would come from two authorising ministers: the Minister for Defence, who is in the chamber tonight—and I congratulate him on his recent appointment—and the Attorney-General. The addition of a third tier is also before us for consideration in this legislation where the PM and one of the authorising ministers are not contactable. It allows for consent from a remaining authorising minister and either the Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer. These legislative changes will prove imperative in overcoming the restrictions in the current outdated processes we have in place.

Currently, our national terrorism threat level stands at medium, as assessed by the Australian Security Intelligence Organisation, ASIO. Given our current threat level it has been argued that this legislation is an overly extreme response to the threat of an attack that is currently neither imminent nor likely. But let me say, firstly, that this legislation is not concerned with the level of our terrorism threat today. This legislation is concerned with being fully prepared for tomorrow, next week, next month and in future years when the terrorist attack may be unpredictable. No person can promise me that a terrorist attack will not happen some time in the future on home soil. Therefore, I fully support the Prime Minister’s view that the Howard government’s number one priority is the protection of the Australian people.

Secondly, the threat we face today is unprecedented. These terrorist networks are inspired by an ideology which fundamentally opposes our values, and these terrorists are innovative. They look for new techniques to mount attacks, and we know that they have undertaken research into chemical, biological and radiological weapons. We just have to go back to April 2004 when terrorists in Jordan stockpiled 20 tonnes of chemicals—that is, enough to kill 100,000 people—but, luckily, authorities detected them. The only way we can truly fight them is by using a strategy which looks to the future, which tries to prevent attacks and which in the event of an attack ensures we get the outcomes that would be expected. With these amendments before us, we are ensuring that our legislative framework allows the optimal coordination response between police, government and the ADF.

I fully understand, appreciate and agree with the concerns Australians have in relation to the delicate balance we must strike between personal liberty and collective security. Personal liberty is one of the linchpins of our democratic way of life in this country and nobody who supports these amendments wants to change that. Indeed, in this fight against terrorism we are seeking to protect our personal liberties and those of all Australians. Members in this House would never want to see the day we require that this bill be enforced. That day would be a tragic and terrible day.

In closing, this is another step the Howard government is taking to ensure that not only are we best prepared to prevent a terrorist attack but in the worst-case scenario, if we have a terrorist attack on home soil, the ADF can respond quickly and effectively. I therefore strongly support this bill.

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

in reply—I thank all of the members who contributed to the debate on the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006. I am particularly indebted to the member for La Trobe for reminding us of the events of 13 February 1978. It is worth just reminding ourselves of those events, and describing them briefly should satisfy any Australian and any member that amendment part IIIAAA to the Defence Act 1903 is necessary. On 13 February 1978 a bomb exploded at the Sydney Hilton Hotel. The explosion occurred in the early morning, prior to the Commonwealth Heads of Government Regional Meeting. Shortly afterwards, the New South Wales Police requested Army to assist, and the explosive ordnance disposal team arrived within two hours. By mid-morning the Prime Minister and the New South Wales Premier had considered Army assistance and by mid-afternoon an emergency cabinet meeting agreed to provide troops to help secure the removal of the meeting to Bowral. Late on the same day the Governor-General issued an order calling out the Defence Force for the purposes of safeguarding the national and international interests of the Commonwealth of Australia, giving effect to the obligations of the Commonwealth of Australia in relation to the protection of internationally protected persons and for other purposes related to those matters.

In 2006, if the government and the policing, state and, indeed, defence agencies were to respond in such a way, it would be considered a national scandal. The delays in communication, in meeting, in getting defence personnel on the ground and in doing all of those things which are governed essentially by the existing arrangements, at least for maritime and air intervention and protection, would be considered by most Australians to be, to say the least, out of step with what they expect to be a minimum standard of response. The Australian government’s paramount interest is in maintaining the safety and security of the Australian people. Indeed, that is probably the first responsibility of any government. The threat of terrorism is real and the nature of potential threats is constantly evolving and changing. We need to make absolutely sure that our terrorism prevention and response capabilities are as strong as they possibly can be. The Australian government is seeking to provide cautious and consultative but expeditious measures that will allow Australians to be protected by their own Defence Force in the event of an extraordinary event.

It was Thomas Jefferson who said that the price of freedom is eternal vigilance. In amending the provisions of the Defence Act the coalition are tonight establishing the parameters for defending our citizens and, indeed, our critical infrastructure. The proposed amendments to defence legislation do not constitute a change to the fundamental principles underlying part IIIAAA, which remain the primacy of the civil authorities, the retention of the military chain of command, the use of force as a last resort, that ADF personnel remain subject to the law and are accountable for their actions and ensuring that any authorised use of force is both reasonable and necessary. Changes will be made to part IIIAAA of the Defence Act to improve the coordination mechanisms for responding to a terrorist incident, to provide operational flexibility for situations in which the ADF may be required to respond to domestic security incidents to support civil authorities and to clarify the legal powers of and protections for ADF personnel when conducting operations in support of domestic security.

Part IIIAAA of the Defence Act 1903 was intended to provide a clear and accessible legislative basis for the use of the Defence Force as a last resort in aid to civil authorities to protect the interests of the Commonwealth and the states and the territories against domestic violence in Australia. The changes to the Defence Act 1903 will ensure that part IIIAAA will achieve this vital objective. The bill reflects the more complex and evolving threat environment, Australia’s recent security initiatives and the increasing range of tasks that could face the ADF when supporting Australia’s domestic security operations in the land, air and maritime environments.

The member for Werriwa asked how a Commonwealth minister would be satisfied that a state or territory would be unable to deal with a situation such as a terrorist incident. The answer is that the Commonwealth has and does work very closely and cooperatively with state and territory governments, particularly in this regard. This ensures the necessary exchange of information so that ministers may inform themselves as to the incident and necessary action to deal with the incident. I note that there will be circumstances, for example, when states and territories will have no capacity at all to deal with a situation. I can inform and reassure the member for Werriwa that the government is working with the states and territories and will continue to do so under this legislation. I refer the member for Denison to the debate in the Senate last week calling for a detailed consideration of the laws that apply following a call-out of the ADF.

On the opposition’s amendment to the motion that the bill be read a second time, I advise the House that the Australian government will consult very closely with state and territory governments to ensure that the legislation is implemented effectively and improves operational cooperation between the Australian Defence Force and state and territory authorities. The Australian government went through the process of refinement of the legislation in 2000, working very closely with the states and territories. The ADF and relevant Commonwealth authorities will continue to work with the states and territories to ensure the provisions of the bill are applied effectively. There is already close cooperation with the Victorian state government to ensure that the ADF continues to work closely with the Victorian civilian authorities to support the Commonwealth Games. This process will inform arrangements with other states and territories, noting that Australia will be hosting APEC in 2007, with key activities in several states.

I provide an undertaking to the parliament to ensure that these processes will continue to be refined. We do not accept that the opposition’s proposal is necessary. Along with the Prime Minister—and, I trust, all my colleagues in the House as well—I am hopeful that there will not ever be an occasion for the provisions in this bill to be enacted, but it would be an undiligent generation of political leaders who did not seek to provide for the safety and security of Australia and its people or see, in particular, that legislation that gives effect to the call-out of Australian defence forces in these extreme and unforeseen circumstances is provided. With the support of the Australian people, the coalition will continue to lead with vision and diligence as we strive to protect and secure this great and free nation.

I thank all of the members in the House who have contributed to the debate and I thank the opposition for its support for this very necessary legislation.

Harry Jenkins (Scullin, Australian Labor Party) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this the honourable member for Barton has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The immediate question is that the words proposed to be omitted stand part of the question.

Question agreed to.

Original question agreed to.

Bill read a second time.