Mike Kelly (Eden-Monaro, Australian Labor Party, Shadow Assistant Minister for Defence Industry and Support) Share this | Hansard source

I'm pleased to rise to speak to the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 because it does address a lot of issues I've been concerned with over many decades. I see over there in the advisers' box a colleague of mine who has been at my side through a lot of these issues over the years—it's good to see you here.

This bill comes at the intersection of critical issues that this parliament must deal with in terms of, as we heard, the safety of our citizens, but also the preservation of our essential democratic values and structures. So this is serious business. It also reflects the changing nature of the threats that our nation faces over the years and the need to remain agile and flexible in dealing with them and to give our agencies the ability to respond effectively. Obviously, the preservation of life is always at the forefront of that, but there's also the management framework within which force is applied in our democracy. In my own service, in places like Somalia, Bosnia, Iraq and Timor, and in the time I spent in Afghanistan, one thing that was very much brought home to me was that democracy is not so much about laws and instruments and elections but about a culture of democracy. So the signals we send when we take these measures are very important.

To reassure the public in understanding what's being attempted here, I want to put it within context. Our modern story of dealing with domestic terrorism threats began predominantly following the Hilton bombing in February 1978. That led to the death of three people, a police officer and two garbage collectors. Eleven people were injured. It was in the context of a regional Commonwealth Heads of Government Meeting. There were 12 heads of state staying at the Hilton at the time. It was really the first significant act of terrorism of that nature, but it came in the context of what had been building up through the sixties and seventies elsewhere in the world. There had been the development of organisations like Baader-Meinhof, or the Red Army, and Middle Eastern terrorism activities had grown in scope and nature around the world. So the bombing was something in the context of those things happening, when Australia had to wake up and say: we need to be ready to respond more effectively in these situations.

At the time, Prime Minister Fraser called out the Army to secure the town of Bowral, where the further meetings for the Commonwealth Heads of Government Meeting occurred. He did that as a direct Commonwealth interest call-out mechanism, which is distinct from responding to a state request for assistance. It did raise questions of how we were prepared, structured and legally provided for in dealing with the terrorist threats we may face. That led to the Hope royal commission which followed. The Hope royal commission canvassed a whole range of issues, including whether Australia needed a paramilitary force, a third force, to deal with terrorism and who should be responsible, whether it be police, military or a paramilitary force. At the end of the day, having duly considered this in detail, looking at experiences from the UK and elsewhere, the decision was made that we shouldn't go down the road of creating a third, paramilitary force and that the close-quarter-combat role should be handed off to the Army in dealing with hostage recovery or confrontations with heavily armed terrorists. That was the decision that was made.

The Special Air Service Regiment was handed that mission. My joining the Army was at the time of that actually taking place—the putting into effect of the raising of the black squadron, as they called it, the sabre squadron responsible for counterterrorism response within the SAS, and training and skilling it up to deal with those issues. That was the time I first entered the Army. Most of the early work I did in the operation space was in working with the regiment on building up its capacity, conducting exercises and working with state law enforcement authorities.

It raised a whole range of issues. One of the things that hit me in the face straightaway was just how archaic the legal framework was for call-out of the Defence Force at the time. A lot of people may not appreciate this, but effectively the old model was built on an 18th century construct. The British Army was responsible for responding to acts of domestic violence; there were no police forces at the time. The framework within the legislation that we had involved the blowing of bugles, the reading of proclamations—which I'm not sure many terrorists would have been too impressed by—and the forming of troops into formations, possibly to conduct firing on crowds, et cetera. It was a terrible construct which didn't have a proper democratic framework around it.

Something really needed to be done. There'd been various attempts to try and do that, but people were always very sensitive to the ability to explain what had to be done and to create the right legal framework. Several stalled attempts followed, and various governments tried to move forward and failed. It was one of the things that I made a particular mission of mine to try and cure. We had the opportunity emerge in the context of the 2000 Olympics. I thought, 'This is it; if we don't use the 2000 Olympics to get this fixed, we may never get it done properly.'

I could also see the rise of growing and escalating threats moving into more dangerous spaces, such as weapons of mass destruction. That also informed how we approached the reform to the framework. In particular, we'd had the experience of the Aum Shinrikyo attack in Tokyo in 1995. Using the Tokyo subway, this extremist cult group used the sarin agent to attack the general population of Tokyo in several coordinated incidents within the Tokyo subway, and 5,500 people were severely injured or killed. The injured ran off in all different directions, approaching hospitals in Tokyo, spreading contamination as they went. This raised the spectre of having to contain events like this of a widespread nature. This event actually had a tie to Australia, in that Aum Shinrikyo had come to Perth in Australia to set up chemical-processing facilities. At the time they even looked at acquiring uranium deposits in Western Australia to facilitate the development of so-called dirty bombs or even nuclear devices because of the capabilities of some of the Aum Shinrikyo personnel. This informed how we would approach dealing with the reform of this framework in the lead-up to the Olympics.

It was difficult at the time. There was a lot of misinformation and, frankly, some reprehensible politics played by the Greens at the time. We took them through what we were attempting to do, and I think they were attempting to play politics around it, because they obviously could not see—or would not see—the threats that were coming down the pipe towards this nation. But, in the end, good common sense prevailed, because what we were doing was putting a proper democratic framework around this issue.

It was meant to deal with not only the problem of hostage recovery in stronghold situations but also recovery of vessels, protection of offshore platforms and containment of incidents of weapons of mass destruction. It would mean that we would be able to bring to bear all of the skills and assets that the Australian Defence Force had, which went way beyond what the civil infrastructure and assets were capable of. They included some very refined capabilities; some in technologies that I won't talk about. But obviously that close-quarters-combat role is something that the Australian Army is particularly adept at. There were also other capabilities, such as being able to have large-scale deployments of troops wearing nuclear, biological and chemical clothing and equipment to be able to do decontamination, to contain an area, to prevent what happened in Tokyo, for example. All of that informed what we did. We put boundaries around how we could set up controlled areas to provide for searching for dangerous items and authorising Defence personnel to do particular things.

But all of this, and all of what's still at the heart of this legislation, is encapsulated around fundamental legal standards within this country. The same principles in the use of force apply to members of the Defence Force as apply to our civil law enforcement agencies. Underpinning all of that is the principle that members of the Defence Force, if called out in these situations, are still there at the request of civil authorities. The civil authorities have primacy, and Defence will only be used if it's necessary.

This bill is slightly expanding that concept to where we can look at particular skill sets and assets and capabilities that also might be better used. When I talk about new incidents and new issues emerging, a couple of our recent challenges that have informed these amendments include the Lindt Cafe siege and of course the rise of ISIS and its highly networked global operations using new methods of communication and encryption et cetera—more sophistication in that space—but there are also new styles of attack, which are there not necessarily to take hostages but to immediately cause casualties of any scale they can. So being rapid in your response and being able to deal with situations of hostage recovery or sieges is still a requirement, but there are also these other, wide-scale issues.

The Lindt Cafe situation in particular brought home to me quite a few deficiencies in our response regime. Some of those are definitely in the public space now. There were issues around the communications insufficiencies in the New South Wales Police situation at the time. We had our TAG East team, who were doing constant rehearsals, who were there to be called on to resolve the siege. But we had a problem with the lack of numbers of personnel in New South Wales Police, so doing a rotation meant they were going to have to reach out to Queensland Police to do the backup rotation that was necessary, when we had TAG East sitting out there, doing their rehearsals, ready to go, in Sydney. The other component of that force structure of course was TAG West in Western Australia. TAG East in Sydney was ready to go, ready to deliver that assault, if called upon.

The standard of training is difficult in civil police forces; they are not often called upon to do a lot of actual operational activity, which is different from the 2nd Commando or SAS regiment which the TAG teams are based upon. So it is almost certain that the actual assault that had to take place in the end would not have resulted in the civilian casualties that we saw and would've been done more effectively. Also, our Sierra teams are more sophisticated in terms of sniper capabilities and have the ability to deal with certain other types of threat as well.

It is important that we create this flexibility for the situation where Defence assets are more appropriate to be used in a given situation or where you have a longer-term situation which needs a lot of redundancy built into it and you need the supplementary capacity that the Defence Force can provide. This is an important step forward in helping to deal with that.

We also saw, obviously, a lot of lessons learned out of the Man Haron Monis situation. He came in as an asylum seeker under the Howard government and then the Howard government denied an extradition request from Iran and granted him citizenship. Then of course there was a failure of passage of information between the Attorney-General and the state authorities, and the state coalition government let him out on bail et cetera. There were a lot of issues that emerged out of that about passage of intelligence, communication and tracking and proper vetting of people in this country, which we've been dealing with on several levels through the Parliamentary Joint Committee on Intelligence and Security and proposals that have been put before it.

The essential nature of this legislation was also building on the experience we have with 9/11. There were changes made to the framework then because of the demonstration of those types of aerial mass casualty attacks as well. Already steps were taken at that time to facilitate the pre-emptive employment of air power to be on standby for major events like APEC meetings and heads of government meetings in our region, to provide that support across the region and in that Australian context to have that ability to respond quickly and effectively to deal with those kinds of air threats.

The essential nature of the fine-tuning of this legislation, as we've heard, in dealing with multijurisdictional call-outs, is simplifying, expanding and clarifying the ADF's powers in these situations, particularly in relation to searching, so that it's no longer just confined to dangerous items but also extends to detain persons who pose a threat to life, public health or safety generally, and also to detain people in certain circumstances beyond what had previously been catered for. Giving more flexibility to the call-out regime, in terms of extra ministerial backup, was also a logical step to take.

Obviously this nation's going to continue to need to respond and react as circumstances change. The essence of this type of legislation and the processes which we engage in through the IS committee—I note the chair is here today, and he has personal experience of the sabre squadron I was referring to—this is a situation where we must continue to work together in a bipartisan way. (Time expired)

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