Wednesday, 8 February 2006
Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 
The Greens oppose schedules 2 and 3 in the following terms:
(1) Schedule 2, item 5, page 26 (lines 11 to 25), TO BE OPPOSED.
(2) Schedule 3, item 3, page 31 (line 30) to page 32 (line 13), TO BE OPPOSED.
This effectively opposes the relevant parts of the legislation that allow the defence forces to be called out. I will quote from proposed section 51G:
Restriction on certain utilisation of Defence Force
In utilising the Defence Force—
that is, the Prime Minister utilising the Defence Force—
in accordance with section 51D, the Chief of the Defence Force must not 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.
If you condense that down to just property, the Chief of the Defence Force, acting on the direction of the Prime Minister, can intervene on a protest by Australians where he or she thinks there is a reasonable chance of serious damage to property. In other words, the Prime Minister can have the Chief of the Defence Force send troops into action against Australians who are protesting on any account. There is no big protest in Australia, there is no great civil protest in this country—not the Vietnam moratoriums, not the Franklin or other great conservation stoushes, not dissent on the wharves, even though there is explicit apparent exclusion for industrial disputation in this legislation—that has not involved what could be perceived by the Prime Minister or the head of Defence of the day as a serious threat to property, whether you are looking at the riots in Launceston against the railway fares to Deloraine in the 1870s or recent opposition to industrial law, which saw the breaking of the doors at the front of this building. The provisions in here are for the Prime Minister—and, indeed, the Treasurer of the day, if the Prime Minister is away—to call out the troops against Australians without the say-so of the state government involved, overriding section 119 of the Constitution. This is inherently dangerous legislation and it is not necessary.
Surely the caveat that the state Premier or the state executive involved has to give assent is a very sensible one. That is why it is in the Constitution. Undoubtedly that was negotiated because the states explicitly did not want legislation where the Commonwealth—which took the power to have defence forces when the states’ defence forces were dissolved at the time of Federation—had the power to intervene in the states with troops against Australians, without the authority of the state government, without, indeed, the request of the state government. But here we are today riding roughshod over that very sensible balance of power, that check on federal executive power written into the Constitution—or attempting to, because the Constitution is not changed by the law of this country.
But what I think is extraordinary here today is that both the big parties—the coalition and the Labor Party—are prepared to try to legislate against that constitutional check in defence of Australians. It is the right of all Australians to protest and it is the right of the defence forces never to be called out against Australians except in the most extraordinary circumstances, and there is a check put in there that the state executive has to request it before it can happen. That is swept aside by the Labor Party supporting the coalition in this legislation. And, presumably because the two big parties agree to it, there is very little conjecture in the press, and the public out there does not know this legislation is passing the parliament in this way today.
Here we have it: if the Treasurer or the Prime Minister think that there is a serious threat to property from a protest somewhere in Australia they can call out troops. They do not have to see whether the police in that state are able to handle the situation first. They may consult with the Premier but do not have to take any notice. They may consult with the state executive but do not have to do anything more than that. This legislation is not needed. Let me stress here again: were you to accept that all the powers given to the defence forces in this legislation could be necessary in some terrorist situation in our country in the coming months or years, you would have to question why it is not wise to stick with the constitutional provision that the state executive involved should give assent or call for the use of troops under those circumstances.
If COAG has agreed to it, that does not change my argument one bit. I think the political system—the two-big-party system—is letting down the Australian people here today. The opposition is failing in its duty to protect the fundamental right of Australians to not have the defence forces brought out against them on the pretext that there is an inherent threat to property. There does not have to be damage to property, according to this legislation; it just has to be that the Prime Minister or the head of the Defence Force perceives that there could be. I explained earlier how that is exactly the situation that arose in the Franklin campaign, and it would be exactly the same situation that you could point to in a hundred other circumstances in this nation’s history where citizens have protested to improve the future of the country but the Prime Minister of the day may not have agreed.
The effect of these amendments is to empower the submission to the Senate by the Human Rights and Equal Opportunity Commission that I mentioned earlier, that this legislation impermissibly widens the circumstances in which the defence forces are authorised to use lethal force to kill Australians. We must remember here that the Nuremberg trials’ dismissal of the ‘I was carrying out orders’ defence is overturned by this legislation. So, if a Defence Force member or members do kill Australians in a protest situation, they can plead that they were taking orders. We are not debating that. There will be no debate here. It is just accepted by the opposition that we should write that into law. It is quite extraordinary that that is happening.
On behalf of the Greens, I object wholeheartedly, fundamentally and very deeply to what is happening with the passage of this piece of legislation. I think that if Australian citizens knew about this, many, many Australians, who are proud of our defence forces, would not want them to be able to be used politically against fellow Australian citizens. I can tell you, Mr Temporary Chairman, we all know that people in the defence forces do not want to be put in that situation either, and nor should they be—that is why we have police forces. But here the defence forces can be used as a police force against Australian people for a political reason, and could claim to be legal because this legislation says so.
There is no inherent extra protection against terrorism in the extraordinary extra powers this legislation gives to the Prime Minister to deploy the defence forces. Those extra powers, including the right to kill to defend property from a threat to violence—not real violence but a threat to violence—go way beyond the pale. That is why the Greens amendment, while it does not remove all the offence of this bill, is essential to at least qualify it.