Wednesday, 8 February 2006
Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 
Bill—by leave—taken as a whole.
The Greens will be moving the amendments that I foreshadowed in the second reading debate. The government amendments (1) to (10) come up first in the order on the running sheet, and they begin with a declaration of designated critical infrastructure. I might begin by asking the minister to explain what limitation is put on that declaration.
by leave—I move together government amendments (1) to (10) on sheet PA330:
(1) Schedule 2, item 3, page 24 (after line 30), at the end of section 51CB, add:
(5) If the infrastructure, or the part of the infrastructure, is in a State or a self-governing Territory:
(a) the authorising Ministers may make the declaration referred to in subsection (1) whether or not the Government of the State or the self-governing Territory requests the making of the declaration; and
(b) if the Government of the State or the self-governing Territory does not request the making of the declaration referred to in subsection (1), an authorising Minister must, subject to subsection (6), consult that Government about the making of the declaration.
(6) However, paragraph (5)(b) does not apply if the authorising Ministers are satisfied that, for reasons of urgency, it is impracticable to comply with the requirements of that paragraph.
(2) Schedule 3, item 1, page 27 (line 21), after “section 51A”, insert “or 51AA (as the case requires)”.
(3) Schedule 4, item 1, page 33 (after line 29), after subsection 51CA(2), insert:
Expedited call out by an authorising Minister and another Minister
(2A) An authorising Minister, together with the Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer, may make an order of a kind that the Governor-General is empowered to make under section 51A, 51AA, 51AB, 51B or 51C if the Ministers are satisfied that:
(a) because a sudden and extraordinary emergency exists, it is not practicable for an order to be made under that section; and
(b) the Prime Minister is unable to be contacted for the purposes of considering whether to make, and making, an order under subsection (1) of this section; and
(c) the remaining authorising Minister is unable to be contacted for the purposes of considering whether to make, and making, an order under subsection (2) of this section; and
(d) the circumstances referred to in subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or 51C(1) (as the case requires) exist.
(4) Schedule 4, item 1, page 34 (line 7), after “subsection (2)”, insert “or (2A)”.
(5) Schedule 4, item 1, page 34 (line 8), omit “authorising”.
(6) Schedule 4, item 1, page 34 (line 13), omit “authorising”.
(7) Schedule 4, item 1, page 34 (line 18), omit “authorising”.
(8) Schedule 4, item 1, page 34 (line 28), omit “authorising”.
(9) Schedule 4, item 1, page 34 (line 29), omit “authorising”.
(10) Schedule 4, item 1, page 35 (line 28), omit “authorising”.
I table a supplementary explanatory memorandum relating to the government amendments. I am informed that the memorandum was circulated in the chamber yesterday. My apologies to Senator Brown: I was just seeking some advice on the running sheet when, I understand, you asked a question. If you could repeat it for my benefit, I would appreciate it.
Amendment (1) is to do with a declaration of designated critical infrastructure. The legislation says that the defence forces can be deployed by the Prime Minister, the Minister for Foreign Affairs or the Treasurer—extraordinarily enough—to defend critical infrastructure. But when you look at it, there is no qualification on that. It could be any communication, for example. It could be defending a computer which is connected to the Commonwealth information output in the country.
The point that I want to establish is that any of those three ministers—the Prime Minister, the Minister for Foreign Affairs or the Treasurer—can determine what is critical infrastructure, and there is no limitation on that. It is not specified. As we know, a minister can find that any piece of infrastructure in the country is critical. I just wanted to have it established that there is no limit on what can be designated as critical under these circumstances. I ask the minister: could a dam in Tasmania; or a coal ship in the ports of Newcastle, Wollongong or Gladstone; or loading facilities—if a protest were taking place for some reason—be designated as critical infrastructure?
What is extraordinary is the appearance of the Treasurer on the list of the three people who can call out the troops. I was wrong in my speech on the second reading when I mentioned the Minister for Defence. It is not that minister. The Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer are involved here. I would like the minister to make it clear to the Senate just who can call out the troops and under what circumstances.
The critical infrastructure will be determined at the time, relevant to the threat. I know that Senator Brown would like more clarity around that, but obviously threats are hard to predict. I think the concept of critical infrastructure in a terrorism threat situation is not a particularly complex one. To create some sort of list, or even guidelines, as to what it might be would be likely to be playing into the hands of the people you are trying to defend the country against in a potential threat—which is the situation in which you would require Australian defence forces to become involved.
The other question, as I heard it, was in relation to the involvement of senior ministers. My advice, and the government’s view, is that you clearly need responsibility to be held by key senior ministers in the government who are responsible to this parliament. As I understand it, under the existing law the Prime Minister is the only one who can act as a proxy, effectively, for the Governor-General. That was the original concept. We have broadened it to create a bit more flexibility in the circumstances where the Prime Minister would not be available at short notice. The structure that we have put in place to maintain not only accountability but also a high level of responsibility is that, in effect, you have only members of the National Security Committee of the cabinet—of which clearly the Treasurer is a member. That is the reason why the Treasurer is there. It is not because of his day job as Treasurer; it is because of his job as a member of the National Security Committee.
That means that if the Prime Minister, in any manner of ways, were to be temporarily out of contact—he may be ill, on holidays or at the pictures—and an urgent situation were to arise, the Treasurer could take over the authority that this bill so wrongly gives to the Prime Minister, with the states excluded, to call out the troops. Ditto the Deputy Prime Minister—which would be the Leader of The Nationals under the current situation—and the Minister for Foreign Affairs. What we have here is a creeping authorisation of members of government, usurping the Constitution, to authorise the call-out of troops against Australian citizens. This is fundamentally dangerous legislation.
We cannot say, ‘Let’s look at this as this nation currently works.’ What we have to do is project a century ahead, look at the history of other countries and ask, ‘In circumstances in which we could find ourselves of an erosion of our democratic security and the cohesion of this nation, could not this legislation be interpreted in such a way that a future Treasurer or Prime Minister could call out the troops against the interests of the citizens of the country as a whole and with the state governments, who are constitutionally empowered to authorise such a call-out, put aside by this piece of legislation?’ The answer is, very worryingly—yes, that can happen. The amendment is not acceptable to the Greens.
I think two points need to be made quite clearly. Firstly, the rhetoric of Senator Brown, effectively advising people that the intent of this law is to have some sort of Dr Strangelove character unleashing the lethal force of the Australian defence forces against Australians, is certainly stretching things or at the very worst building a straw man. One of the features of the law is that one of the authorising ministers would have to be the Minister for Defence or the Attorney-General and at all times two ministers are required to authorise a call-out in the circumstances envisaged by this law. The circumstances envisaged by this law, based on all legal advice given to this government and previous governments, are that the use of the Australian defence forces in these circumstances is entirely constitutional. It does not usurp the Constitution, as Senator Brown claims.
A call-out would be done in the event that the civilian forces—these would generally be authorities of the state government such as the police force or some other force—had been overwhelmed and there was a need for a greater force to come in and assist. This is the design that is envisaged. It is something that national security requires, and this law as it stands and the amendments we seek to make today are to add clarity to that, not to usurp the Constitution. That is not what we seek to do. We are trying to make Australia a safer place and to do so in a way that would deal with a potentially extraordinary situation. We seek to ensure, to pick up Senator Brown’s, I think, fair point, that when we make laws in this place we do need to think 10, 20, 30 or 50 years down the track.
This law is being amended because it was put in place back in 2000, as I recall, and has been reviewed, quite properly, by eminent Australians with expertise in this area. These amendments before the chamber at the moment reflect that review. That is not to say that a future parliament could not review the operation of this act; I am sure it will. But we are putting in place what we think are sensible, sound accountability measures that ensure that one of the authorising ministers is the defence minister or the Attorney-General and that at all times two ministers are required. It is the government’s view, and I think we have the support of the opposition on this, that those ministers should, appropriately, be members of the National Security Committee of cabinet. The practical and sensible reason for that is that these are the ministers who are on a regular basis in touch with and briefed on security issues that affect the nation and the world and so have a context and a level of information built up, generally speaking, over a long period of time as would help and guide them in the decisions to utilise the powers within this law.
Question agreed to.
by leave—I move Democrat amendments (1) and (2) on sheet 4825:
(1) Schedule 2, item 5, page 26 (line 24), omit “greater indignity than is reasonable and necessary in the circumstances”, substitute “to any form of treatment which contravenes the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment”.
(2) Schedule 3, page 32 (after line 13), after subsection 2B, insert:
(2C) Despite subsection (1) and (2B), in exercising any powers in accordance with Division 3B, a member of the Defence Force must not, in using force against a person, subject the person to any form of treatment which contravenes the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment”.
I referred to these amendments in my speech on the second reading. I think they are important for the specific precision and detail of the legislation where force may need to be used by defence personnel. I think they are also important in that the Australian parliament can send a clear signal by ensuring that this provision is inserted in the law.
The provision that I am dealing with goes after subsection 51T(2) of the bill and deals with the use of force. I will go through the detail of that subsection to make the context clear. It says that members of the Defence Force, in exercising their powers, must not, in using force against a person:
- do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the member believes on reasonable grounds that doing that thing is necessary to:
- protect the life of, or to prevent serious injury to, another person ... or
- protect, against the threat concerned, the designated critical infrastructure in respect of which the powers are being exercised; or—and this is the relevant second part—
- subject the person to greater indignity than is reasonable and necessary in the circumstances.
This amendment specifically goes to that issue of subjecting a person to greater indignity.
There are concerns about having the right to cause someone’s death to protect infrastructure and whether or not that is problematic. I think Senator Brown will expand on that when he moves his amendment. But this Democrat amendment is very specific. It goes solely to that component which talks about subjecting a person to greater indignity than is reasonable or necessary in the circumstances. The second Democrat amendment does a similar thing in regard to the use of force. It attempts to make it clear that the person, in exercising those powers with the use of force, must not subject a person to any form of treatment which contravenes the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The government may say that this prohibition against any form of treatment which constitutes torture is covered by the wording which says that the person exercising the powers will not subject a person to greater indignity than is reasonable or necessary in the circumstances, but I do not believe it is. I do not think that is clear enough. If it is covered then it can be improved by making it absolutely crystal clear that that is the situation.
This specific matter was raised before the Senate Foreign Affairs, Defence and Trade Legislation Committee inquiry. The Gilbert and Tobin Centre of Public Law submission by Dr Ben Saul, who has a lot of expertise in this particular area, states that there is, as I said in my speech in the debate on the second reading, wider concern around the world and certainly amongst democratic nations that there is a stepping back from the absolute opposition to the use of torture under any circumstances by democratic nations, particularly in regard to the attitude of the current United States government. It was also the subject of a recent Law Lords decision in the United Kingdom. It categorically ruled out the use of torture under any circumstances and detailed the many reasons why that clear opposition to the use of torture has developed in Western democracies.
At a time when there is even the slightest indication—and I suggest it is more than a slight indication—that that strong commitment of Western democracies to rule out torture in any circumstances is in question, it is very important for Australia and the Australian parliament and government to make it clear that, as far as our nation is concerned, that is simply not an issue. There is a wider benefit that could come from putting this amendment in, as well as making it crystal clear that, if circumstances arise in which a member of the Defence Force believes that the use of force is necessary, that cannot involve subjecting that person to any form of treatment which contravenes the convention against torture. I think it is important to put that in; I do not think it is clear enough in the current legislation.
I want to emphasise that this amendment does not in any way suggest that this is a run of the mill sort of thing that a member of the ADF would want to do or that this is in any way something that I have a concern is likely. But, as the minister himself just said, we do need to look at this legislation not just in terms of now but also down the track as well as evolving international standards. In that context, I think it is important to make that categorically clear in the legislation and to take the opportunity to send a strong signal that this country’s commitment to refuting any form of treatment which constitutes torture and its definitions of cruel, inhuman or degrading treatment or punishment is rejected. I urge the Senate to take that view and to use this opportunity to send that clear message and to improve the clarity of the legislation when it comes to what is probably one of its core parts, where circumstances arise in which force may be needed to be used.
I thank Senator Bartlett for moving this amendment. I am sure that all senators would share his views in relation to abhorrence of torture. Probably one of the great experiences I had in the summer adjournment of the parliament was the privilege I had of meeting United States Senator John McCain on 2 January in Sydney. It was a great opportunity and, knowing that I was to meet the Republican US senator from Arizona, I took the opportunity to read his biographical work on not only his own life up to about the time of his release from being a prisoner of war during the Vietnam War but also on his father, Admiral McCain, and his grandfather, Admiral McCain. The book, quite elegantly, is called Faith of My Fathers. I recommend it to Senator Bartlett and any other good senators who want to read of the first phase of an incredibly important American life and of someone who is touted as a potential Republican candidate for the next presidency.
He is an awesome character whom it was a great privilege to meet, not to exaggerate too much. But his importance in the context of this debate is that Senator McCain has been a leader of political activity in the United States to ensure that that country upholds all of its conventions and policies in relation to its abhorrence of torture. He has also had particular personal experience, having been subjected to endless years of torture as a prisoner of war during the Vietnam War. The book goes through the impact of that, and anyone who reads that story could not be other than affected and would share the passion that Senator Bartlett has in relation to this issue.
If the government thought that accepting these amendments would in fact add anything to or reinforce in any way the significant layers of not only international law but Australia’s commitment to all of the relevant international conventions that prohibit torture—and which are in fact domestic law that, in the case of this particular statute, is built in through the Jervis Bay territory criminal laws which contain all of the relevant offences appertaining to torture and specifically assault and malicious wounding—we would have no hesitation in doing so. But I am assured by the best advice available to the Commonwealth that the legal framework that is in place achieves everything that Senator Bartlett quite properly wants us to achieve and that these are entirely redundant or unnecessary, although the motivation behind them is absolutely correct.
The Greens support the amendments. The minister has turned around the argument. If the amendments do not interfere with the government’s view of the protection in the legislation then he should have no worry in accepting them.
I understand what the minister is saying and I appreciate his at least putting on the record the clear-cut position of the government’s abhorrence of torture in any circumstances. I think that in itself is valuable to have on the record. As he pointed out, the fact that Senator McCain has had to undertake some admirable work in recent times to make this crystal clear in a US context is a sign that that total and absolute abhorrence of torture is at risk of becoming less than absolute amongst some of our allies. Obviously, if the minister is as strongly and categorically advised as he has said, he would take that advice, as I would in his circumstance. I will just repeat that this was specifically raised as a concern in one of the submissions to the Senate committee inquiry by a person on behalf of a couple of bodies that I believe have quite strong reputations as well. If, as the minister says, it is redundant then it certainly will not do any harm. As I said, I think the broader value of making this categorical statement should not be completely dismissed either. I think it is appropriate to re-emphasise that. It is not just a whim to make a point; it is in response to a specific concern raised in the Senate committee inquiry.
On the wider point, which goes to the next amendment, the Human Rights and Equal Opportunity Commission’s submission, whilst not referring to the torture issue, also referred to the International Covenant on Civil and Political Rights. The fact that we are a signatory and have ratified these conventions does not make them automatically applicable under Australian law. However, I accept and acknowledge what the minister said about existing law and other wider laws covering the matter the Democrats have raised. It is not particularly unusual for things to be inserted into legislation for the purposes of removing doubt. In fact, one of the clauses in this amending bill does that in a few places where, for the purposes of avoiding any doubt, something is spelt out. I believe this would have been a good opportunity to do the same in this circumstance.
The Greens oppose schedules 2 and 3 in the following terms:
(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.
The assertions made by Senator Brown simply cannot go unanswered. Senator Brown says that the Australian people are not aware that this is happening and that there is some sort of secret conspiracy between the two major parties to slip this through under the noses of the Australian public. Quite frankly, it is an insult to the Australian public to make such an absurd assertion in one of the most democratic institutions in the world—that is, in this parliament—on a day when the broadcasting lights are on and anyone anywhere in Australia who has any interest in this issue and access to a wireless, a transistor radio, a car radio or the internet can hear the debate.
Senator Brown says that it is a conspiracy between the big parties. The big parties are big parties because most of those Australian citizens that you referred to vote for them, for the coalition parties—that is, the Liberal Party and the National Party—or the Australian Labor Party. These people are not silly; they are well informed. We have a vigorous media in this country, including the Australian Broadcasting Corporation, who are represented behind the glass screen at the back of this chamber. We have a vigorous print media, a vigorous electronic media, who report actively and vigorously on the issues that affect the communities and people of this nation. To say that there is some sort of conspiracy between the big parties—parties who happened to have won the hearts and minds of millions of Australians at successive elections and significantly outweigh the relatively few who choose, for their own good reasons, to vote for Senator Brown’s party—is false. That is why you should not insult the intelligence of Australians by suggesting that there is some sort of slight going on.
I think it is also very sad that a senator who has been elected to this place would so comprehensively misrepresent what the law before this chamber and the changes to that law would do, by saying that it is about killing Australians and trying with a rhetorical device to link the actions of this government to what occurred at the Nuremberg trials in the aftermath of World War II and the atrocities committed by Adolf Hitler. They are outrageous linkages. What is outrageous is that Senator Brown would seek to mislead the Australian people in such an obvious way by saying that the legal defence of following orders would be overturned by this legislation, when in fact the absolute opposite is true.
We are here in the parliament trying to put in place the legal framework that exists with police forces. We are trying to put in place clarity around the use of the Australian Defence Force in circumstances that are constitutional. If they were unconstitutional, they would be illegal regardless of this law. Senator Brown is actually right about that. Out of the 10 things he said, he was probably right on one of them. The circumstances that Senator Brown described in which the defence forces would be called out would be illegal regardless of this legislation. That is the constitutional position. You cannot change that. What we are trying to do is put clarity around that by putting a legal framework around it which upholds all of those conventions and which upholds the Australian Constitution.
What does the Australian government seek to do? With the support of the Australian Labor Party, for which we are thankful, we seek to protect Australians. What is at the core of this legislation? The basis of this legislation is that, in the event that a civilian authority has been overwhelmed and critical infrastructure is at risk, potentially through a terrorist threat or any other threat, Australians’ lives would be put at risk. The real reason that the Australian Defence Force would be called up under this law is to save the lives of Australians that would be put at risk because that infrastructure was under attack and the civilian authorities could not defend it. It is constitutional now; it will be constitutional if it ever occurs. God help us if it does. Let us hope it never does but, if it does, it will be constitutional. It will be legal, and nothing in this law will change that. For Senator Brown to seek to do what can only be regarded as very pathetic political point-scoring on such an issue and to misrepresent what we are seeking to do in such a flagrant way is beneath him. I think he is trying to score points in a way that is beneath him and is quite contemptible. He should really think carefully about the way he handles this issue. If he were telling the truth about the intent of this law, it would be a different matter, but what he has said is a misrepresentation of what we are seeking to do and a misleading of the Australian people by doing so.
Clause 51WB, ‘Defence of superior orders in certain circumstances’, states:
- It is a defence to a criminal act done, or purported to be done, by a member of the Defence Force under this Part that:
- the criminal act was done by the member under an order of a superior ...
At the outset, I had not intended to engage in this discussion, but I do believe it is appropriate to respond to the somewhat provocative points made and perspective taken by Senator Brown in the amendments before the chair and to place on the public record the longstanding interest and involvement of the opposition—the Australian Labor Party—in this matter so that people who are listening to this broadcast, firstly, are not misled and, secondly, do have a proper, sound and accurate appreciation of the real detail and the real intent behind this bill. The issues under discussion are critical, they are important and they bear great consequence. They have been before this chamber on many occasions, in more recent years arising out of the events of September 11. More particularly, they have been under intensive, repeated and detailed discussion by my forebears in this portfolio over the last three or four years. The issues have been regularly addressed in detail, and the complaints and criticisms raised by fair-minded people have in substance been addressed.
One of the interesting matters in that regard is that, when I agreed to attend the Senate Legal and Constitutional Legislation Committee inquiry into this bill, I was very surprised at the relatively small number of submissions to this inquiry. I was surprised at the day of hearing by the fact that there were only half-a-dozen representatives of various groups who attended to give evidence. Their evidence of course was of value and of assistance to those of us who were involved in that hearing.
I recall that when the predecessors to this bill were before the parliament—essentially in the period from 2002 through to the middle of 2005—there was intensive ongoing discussion. In the relevant House and Senate inquiries into the bills at that time hundreds of submissions were made. The inquiries conducted by my predecessors in this portfolio and other members of various parties involved days and days of intensive hearings. And there were days and days of intensive negotiations between the non-government parties, and days and days of intensive negotiations between government and non-government parties before resolution of the matters in dispute was achieved. With the current bill, most of those issues, if not all of those issues, have been addressed and resolved and are not challenged in this bill. Those who made submissions to the inquiry have not revisited those issues. By and large, the principal matters are resolved and are accepted in our community.
What concerned me about the submission by Senator Brown was the almost deliberate use of Orwellian doublespeak language. He repeatedly said words to the effect that the Australian defence forces were going to be called out at the whim of the Prime Minister and used against the Australian people in the defence of property—as I understand the general proposition that he put. A number of things need to be put on the record in explanation of that set of propositions advanced by Senator Brown. The first is that it is not at the whim of the Prime Minister, as the previous amendment demonstrated. There is essentially a three-tiered approach to the use of power in this bill. Firstly, the Prime Minister may substitute for the Governor-General. Secondly, in the absence of the ability to have the Prime Minister substitute for the Governor-General, you have to have the consent of two ministers: the Minister for Defence and the Attorney-General. Thirdly, if the Prime Minister and one or other of the other two ministers are absent or not contactable for whatever reason, there is a third tier of protection inserted into the bill whereby another senior minister of the government, chosen from the National Security Committee of cabinet, is entitled to participate with, from memory, either the Minister for Defence or the Attorney-General in signing off on the critical infrastructure order.
There is a three-tiered, staged process of descending authority from the Prime Minister to members of the National Security Committee. As far as the opposition is concerned, in all instances affecting this type of threat or matter of urgency, they are the appropriate people who should be informed and should be making the decision. The Prime Minister—the head of government; the Deputy Prime Minister in his absence; the first legal officer of the Crown; the Minister for Defence; and the Minister for Foreign Affairs all participate in that committee. That would certainly be the case if Labor were in power and, as I understand it, that is the case with the government as well. They would be regularly briefed, be fully on top of the issues and be able to participate in the deliberations on such an important matter.
The next point I want to address is this argument that it is the Australian defence forces—some outside, evil, Machiavellian agency—that are going to be used against the Australian people. One makes the obvious point in response, as I made at the relevant Senate committee hearing: the Australian defence forces come from and are part of our community. They are one and the whole of us. They are not some agency that is different, distinct, remote and separate from us. When they sign up, they act according to law and only according to law and are under the direction of lawful authority, under the chain of command or at the lawful direction of the relevant minister through the chain of command in operational matters.
That is entirely proper, and I have never seen an instance where that has not occurred, or if it did occur was not the subject of the appropriate disciplinary proceedings within the ADF. To suggest that there is a conspiracy on behalf of or on the part of the Australian Defence Force to engage in some sort of untoward activity is simply an outrageous suggestion that needs to be rebutted by the opposition, simply because the Australian Defence Force come from and are part of us and act on our behalf in these most terrible of occasions.
Another point I should make in response is that my memory is that the word ‘collusion’ was used and that there was an allegation that the government and the opposition, the two big parties, had engaged in some form of collusive activity or conspiracy—unstated but by implication underhanded, secret and untoward—to mislead, cover up or hoodwink the Australian public as to the content and intent of this bill. Let me say on the record: there has been no such activity participated in or entered into by the opposition or by the government, as the minister at the table said. All of our deliberations have been on the public record. We are properly critical of the government’s short time frame for allocation of timings prior to the Commonwealth Games. Nonetheless, the content of the bill, arising out of the report by the three eminent persons, has been publicly available since March of 2004. This bill was introduced into the parliament last November or December. It has been the subject of public hearings, and it has been the subject of discussion via receipt of public submissions, as Senator Bartlett referred to in two or three matters he picked out from submissions he thought had not received sufficient attention.
In terms of the content of the bill that Senator Brown finds particularly offensive, we do accept—and I repeat what I said in my second reading contribution—that it makes sense all round for the extent of the powers in this area to be both codified and regulated from three points of view: firstly, training; secondly, effective operation; and, thirdly, subsequent accountability and responsibility when the powers are exercised in the field.
In respect to the issue of critical infrastructure, which is really the matter behind Senator Brown’s comment—he used the emotive word ‘property’—his criticism has been advanced that on a reading of the proposed section 51T there is empowerment for a member of the ADF to use force potentially causing death or injury to another. That power is taken to protect against a threat concerning the designated critical infrastructure. As I said at the outset, that argument ignores the fact that, before infrastructure can be designated as critical infrastructure under section 51CB of the act, the authorising minister or ministers must believe on reasonable grounds that there is a threat of damage or destruction to that infrastructure. In addition, the minister must believe that damage or disruption would directly or indirectly endanger the lives of or cause serious injury to other persons. In other words, the decision on advice that the destruction or damage of that infrastructure would result in the endangerment of life or serious injury is a decision that is appropriately taken by the minister or the different level of ministers, as I outlined before. In those circumstances, we are of the view that the empowerment to use reasonable force is one that is both necessary and appropriate, that the safeguards in place are necessary and appropriate and that the accountability provisions after the activity are necessary and appropriate.
Those points were addressed in my second reading contribution. It is worthwhile in the committee debate to again put them on the record to some way go to rebut the misleading argument that was advanced earlier by Senator Brown.
As many speakers from all sides have said, this is an important issue. It goes right to the heart of some key traditions certainly of Australia and, I would argue, of wider Western liberal democracies. I need to put a few things on the record to make clear the Democrats’ position, as we will be supporting the Greens’ amendments, for reasons that I will outline, but in doing that I am probably going to spend most of my time disagreeing with most of what Senator Brown has said. I want to indicate why we are supporting his amendments whilst not wanting to suggest that we agree with some of his analysis.
The amendments, to bring the chamber back to the specific amendments before us, relate to the use of force. They relate to when the ADF are called out, what type of force they are able to use under what circumstances and the protections around that. Obviously, that includes the use of force that could involve the death or grievous bodily harm of somebody. The protections around that need to be as strong as possible. That is where the Democrats’ concerns lie—that the protections around that are not as strong as possible.
That does not mean that I agree with a lot of the analysis put forward by Senator Brown. I want to clarify a few of those matters. I do not believe it is accurate, as he suggests, that the legislation subverts the Nuremberg defence or anything like that. He read out a section about it being a defence to a criminal act by a member of the Defence Force if it was done under the order of a superior. He did not read what was written underneath that section, which in addition refers to the order not being manifestly unlawful. If a superior officer—and this has already been established—gives an order to ‘go and shoot that person in the head because he’s annoying me’, that is manifestly unlawful. Clearly, this is part of the training of defence personnel now. As is always the case, you can argue at the margins, but the Nuremberg trials, as we all know, were about manifestly appalling abuses of human rights at the highest level; they were not about a judgment made in the heat of a particular incident regarding what type of force to utilise. So the Nuremberg context is completely inappropriate because any orders that might in any way lead to actions that would be placed in a Nuremberg type context would be manifestly unlawful and that defence would not be available.
The issue of constitutionality is another one that needs to be emphasised a bit more. A lot of these arguments were examined in more detail back in 2000, when the primary aid to civilian authorities legislation was passed. People who are interested in exploring the detail of this matter should read the transcript of the Senate debate and especially the Senate committee report on that legislation. That report details the history of this whole area of calling out the troops in certain circumstances. It details circumstances where that has occurred in the past in Australia. On a few occasions troops have been called out with authorisation to use force, and at other times they have been called out in other civil circumstances but that authorisation to use force has not been involved.
It is an important part of our tradition that the military is clearly seen as being for the defence of the nation, not as an arm of government to be used against its own civilians. It is also a key part of our tradition that the military is seen as being clearly distinct from the sorts of civil order activities of the police. The point was appropriately made during the Senate committee inquiry that too much movement of our military towards involvement in civil activities would constitute a danger. The flip side of that must be recognised—that if we seek to rely solely on our police in circumstances which really start getting into attacks on the nation, we also run the risk of militarising the police, which is also something that we want to guard against. So we need to operate within all of those contexts.
With respect to the federal government’s use of such constitutional powers, there are still genuine questions about how wide-ranging the constitutional power is. Those questions were already there having regard to the existing legislation. Indeed, they were already there before the legislation came into force in 2000. The fact that troops had been called out in the past, before 2000, demonstrated clearly that the power was there. Section 119 of the Constitution has been quoted. It says that the Commonwealth shall protect every state against invasion and, on the application of the states, against domestic violence. But there are other sections of the Constitution apart from 119.
One could also argue about how you would define ‘invasion’ under section 119. Certainly, some could say, in some sorts of terrorist incidents, that that could be equivalent to invasion, particularly when one keeps in mind what would have been difficult to envision when the Constitution was being pulled together in the 1890s. The founding fathers probably would not have envisioned jet airliners flying into 60-storey buildings. They would have had enough trouble envisioning a 60-storey-high building, let alone a jet airliner. So that section alone is open to interpretation.
Apart from that, clearly there are a number of aspects under section 51 of the Constitution that the federal government could rely on in certain circumstances in order to call out the troops. One that is perhaps most germane is the external affairs power. In recent years the federal government has entered into a range of international agreements to deal with terrorism. That, in itself, could be relied upon. That is the same power, as Senator Brown would know, that was relied on, thankfully, to prevent the Franklin dam from being built. The majority in the High Court case was only four votes to three. At the time it was seen as potentially subverting the intent of the Constitution. I am glad that the High Court at that time had the wisdom to see that the federal law was being appropriately applied with respect to the external affairs power.
In certain circumstances that could also be applied in this regard, as could other sections, such as section 51(vi), section 51(xxxix) and the general executive power under section 61. To say that it is a massive attempt to completely subvert the Constitution is to overstate things. That is not to say there are not still question marks about how far those powers go. But that is really a debate for constitutional lawyers and there will always be different opinions on such matters. Unless there is a definitive High Court ruling, we will not know. Clearly, there are other grounds here. That is not to say that it is not desirable to involve the states, to consult with the states and ideally to get the cooperation of and an invitation from the states. Concerns have been raised by the states—specifically by the New South Wales government in this inquiry—that the level of consultation in putting this legislation together was less than ideal. That is of concern.
I turn again to the issue of the use of force and those powers, because this was touched on in the committee report, and it is the reason why the Democrats are of a mind to support the amendments and why we are concerned about the totality of the bill if it is not amended. The use of force is obviously at the pointy end, if you like, of these situations. The committee made a couple of recommendations. We have already touched on one of the recommendations, which was to clarify quite clearly, as a statement of intent, that this section should only be used when all other avenues have been considered and rejected. It appears that the government has chosen not to go down that path.
Perhaps more important to the specific matter before us is the issue that was raised in evidence given by the Human Rights and Equal Opportunity Commission about what test would be used in determining a decision to make an order that could potentially lead to the loss of life. The human rights commission proposed the addition of what is called a proportionality test. They were doing this in the context of ensuring that the legislation clearly complied with article 6 of the International Covenant on Civil and Political Rights which deals with the right to life—clearly, they were raising a fundamental issue. Their view was that the safeguards in this legislation needed to be strengthened or clarified. As stated in their evidence before the committee:
The commission’s submission is that in view of the fact that these orders authorise measures that may well lead to the loss of life—
the test of—
‘reasonable and necessary’ is not a stringent enough condition to reflect the international law requirement of proportionality.
I am not suggesting we should adhere to international law for the sake of it or have our decisions tugged around unthinkingly by international law, but this area of international law has been developed over time specifically because of the need to get these sorts of powers and the limits on them as precise as possible. We should take great heed of and rely on how those are developed, because they are developed as a result of experience in the extreme circumstances that this legislation envisages.
The Senate committee did recommend that a stronger proportionality test should be included—what they have called ‘the least restrictive means test’. I will not go into what that means, but it basically gives a better sense of proportion to the situation than just a general overview of what is reasonable or necessary. That was a recommendation by the committee. It does not seem to me that the government has taken up that recommendation, and I think, in the absence of that, the powers for the use of force here are not framed as tightly and as safely as would be desirable, and that is a significant concern.
That is not to say that this is going to happen tomorrow or that the more extreme circumstances that have been suggested are likely to happen. As I said at the start, this legislation is dealing with a pivotal and fundamental area. That is why I think you do need to try and approach it with as forensic and precise an examination as possible, because you are putting something in place potentially for a long time. As has been said, the powers will only be used in extreme circumstances, and it is when you are in those extreme circumstances that you will need to have the most precise definitions and proscriptions as possible in place.
That is why the general concept of putting in place legislation is desirable—because otherwise it is not confined, it is not defined and you just have general, open-ended executive power, and I do not think that is desirable at all. In putting the legislation forward, I think it has to be codified as tightly as possible, particularly given the government’s refusal to adopt even the quite mild recommendations of the committee. I think that indicates genuine grounds for concern.
by leave—I move Greens amendments (3) and (4) on sheet 4816 together:
(3) Schedule 4, item 1, page 37 (after line 11), after section 51CA, insert:
51CB Parliamentary disallowance of call outs
An order made in accordance with section 51A, 51AA, 51AB, 51B, 51C or 51CA is a disallowable legislative instrument for the purposes of the Legislative Instrument Act 2003.
(4) Schedule 4, page 37 (after line 11), after section 51CA, insert:
51CC Parliament to sit following making of a call out order
If an order is made in accordance with section 51A, 51AA, 51AB, 51B, 51C or 51CA, each House of the Parliament must sit within 6 days of the order being made.
These amendments effectively mean that, if there is a call-out of troops by the Prime Minister of the day against the Australian people for some reason involving a threat to public order and property, parliament must be recalled within six days, and either house of parliament has the ability to make that prime ministerial call null and void. This is a democratic safeguard being built in against some future abuse of this power by a Prime Minister, a Treasurer or a Minister for Defence. It is an absolutely important safeguard being brought in here. You can only vote against this safeguard if you do not think the parliament has primacy, and if you think the executive and indeed the Prime Minister, who is not even mentioned in the Constitution, should have primacy in our federation, a century after the Constitution was written. It is a very, very important Greens amendment. It is a safeguard against the abuse of power. I cannot see that there could be any reasonable argument that the parliament should not be brought in in such an extraordinary circumstance as a call-out of the troops by a national executive to prevent some domestic threat arising in Australia.
The Democrats support these two amendments. We have made a longstanding attempt in this parliament via many amendments and, indeed, a private senator’s bill currently on the Notice Paper to require the parliament to approve the use of the military overseas. Obviously, this legislation deals with emergency situations, so the practicality of the parliament authorising in advance the call-out is nonsensical, but the principle of being able to debate and vote on that call-out after the fact, particularly if it is an order of continuing effect, is appropriate and consistent with that principle.
I will not detour totally down the side path of whether it is appropriate for the parliament to authorise the sending of troops to battle overseas or to keep that power with the executive, but our position has been longstanding that it is appropriate, except in an emergency, for the parliament to make those decisions. I note in passing that the new leader of the Conservative Party in the UK has floated as a potentially desirable reform—as I might say have a number of members of the governing Labour Party as well—that parliamentary approval of the use of troops overseas is an appropriate approach for that country to take, as it is, at least in technical terms, in the United States.
This legislation obviously does not involve the use of troops overseas but it does involve the use of the Defence Force. After the fact, it still would be appropriate, firstly, to require the parliament to sit and, secondly, for the parliament to have the opportunity should it wish to make such an order disallowable. The reality is such that it probably is a measure that is unlikely to mean a lot in the vast majority of circumstances because the call-out, in most circumstances, would be in response to a specific incident and an immediate incident. It is not likely to be one that would be stretching out over six days or more but, nonetheless, there is the power there for the order to have continuing effect for longer than six days, as I understand it. So, for consistency of principle, it is appropriate for that power to be there. I will also just emphasise that this is a matter of sufficient significance and sufficient import that it should be automatic that the parliament have the opportunity to be informed about it and to debate it if it so chooses.
I move opposition amendment (1) on sheet 4827:
(1) Schedule 6, item 13, page 47 (line 13), after subsection 51WA(4), insert:
Note: It is not intended that this section or Act restrict or limit the power of State or Territory police to investigate any criminal acts done, or purported to be done, by Defence Force members when operating under Part IIIAAA of this Act.
I will speak very briefly to this amendment. On 7 February, the shadow minister for defence, Mr McClelland, wrote to the new Minister for Defence, Dr Nelson, requesting government consideration of an ALP amendment which seeks the insertion of a note in the bill in relation to the investigation of ADF members who commit an offence when operating under part IIIAAA of the act. We sought the inclusion of a note stating:
It is not intended that this section or Act restrict or limit the power of State or Territory police to investigate any criminal acts done, or purported to be done, by Defence Force members when operating under Part IIIAAA of this Act.
Dr Nelson responded: ‘As this note reflects the government’s intent and would be seen to state explicitly what is already implicit in the legislation, I agree.’ My understanding is that the amendment moved by the opposition is acceptable to the government. It is self-explanatory.
In my second reading contribution, I foreshadowed that I had a question or two to ask of the minister. I might ask those questions now and seek a formal response from the minister, as I understand he has spoken to his advisers. Firstly, what law applies to members of the Australian Defence Force who are travelling to a designated area for an operation? Secondly, what law applies to members of the public who are involved in an accident or incident with members of the Australian Defence Force who are travelling to a designated area for an operation?
I hope this answer will cover Senator Bishop’s question. It may fall short in relation to members of the public. If I cannot get that answer while I am on my feet, perhaps I could take the question on notice and ensure that the answer is tabled so that all of the Australians who are tuned to the Parliamentary News Network, and who are absolutely riveted to this debate, will also be able to access it. Of course, we all would hope that these laws are never required to be utilised; that is the reality that we would all hope and pray for.
The answer is that, prior to call-out, the ADF personnel in Australia are subject to the laws within the relevant jurisdiction—which may include a state or territory—Commonwealth law and the Defence Force Discipline Act. Therefore, prior to being called out and force assigned by the CDF to a part IIIAAA tasking operation, they will be subject to state and territory criminal laws. So prior to tasking and prior to the call-out, the existing state, territory, Commonwealth and Defence Force Discipline Act laws apply. Once the ADF personnel are called out and force assigned from CDF to a part IIIAAA tasking or operation, they will be subject to the criminal laws of the Jervis Bay Territory and will no longer be subject to the criminal laws of the relevant state or territory. Of course, that takes us back to the debate we had in relation to torture on the amendment moved by Senator Bartlett.
With respect to the relevant civil laws, a civil action could be brought against an ADF member in relation to actions done in the course of a part IIIAAA call-out. It is normal practice for the Commonwealth to indemnify its officers and members of the ADF where their actions are reasonable and consistent with their duties. Normal state and territory laws apply to members of the public. They are not affected at all by this bill. The existing state, territory and Commonwealth laws that apply to members of the public will not change.
The minister used the word ‘call-out’. My question was in the context of travel. Does that mean when the part IIIAAA order is signed off by CDF or his delegate the act of travelling to the call-out area to engage in the operation is comprehended by the meaning of ‘call-out’?
The answer is that once they are assigned, and that is a word I did use in the answer, by the CDF, those forces that are assigned—and they would be a defined unit, a defined group of people or even a defined person or persons—will be the subject of this law and it would not matter where they are. They could be travelling from a defence base to the site of the action from anywhere, potentially.
Bill, as amended, agreed to.
Bill reported with amendments; report adopted.