Keith Wolahan (Menzies, Liberal Party) Share this | Hansard source

I know that time is of the essence in passing and processing these bills, so in that spirit I flag that I won't be using my full time, for those who are preparing to come next.

The most important and fundamental factor in conflict is the will to fight, and that is because war and conflict are fundamentally a human endeavour. Humans are not computers or robots. We have emotions. We are part of groups, tribes, families, units, formations, divisions and nations. In that aspect, the will to fight is so fundamental. If executed properly it means—hopefully—we don't actually have to fight, and that's at the heart of AUKUS. AUKUS isn't about preparing this nation for an actual conflict. It is designed to prevent conflict. It is designed to get inside the heads of potential foes when they are war gaming and lead them to say 'not today'.

As technology evolves, that question of 'not today' is one that has to continuously be asked, and one of the reasons it has to continuously be asked is that technology evolves. AUKUS is a huge, multigenerational, nation-building task in advancing our technology and equipment, and we can't do that if we don't have the mechanisms to protect the secrets that underpin it. But we must never forget that what we are doing here also affects the humans that we rely upon to take great risks and fight in our name. I acknowledge the member for Hunter here. I was in his electorate on Monday to say farewell to the former member for Hunter's son, Jack Fitzgibbon, someone who put on our uniform and was prepared to sacrifice his life—and lost his life—in the service of our nation.

In this nation we have 581,000 veterans, just under 60,000 full-time members of the Defence Force and 32,000 reserves. The SAMS part of this bill puts an anvil over their heads and says, 'If you don't comply with certain requirements, you'll go from being a hero to a criminal.' That's an important but really serious thing that we should acknowledge. The headline offence in SAMS is 20 years in prison—20 years. What we're doing here is important, but we should do it conscious of the regime that we are imposing on current and future ADF members. I hope we never see a prosecution here.

On many other occasions and in many other legislative instruments, particularly in criminal law, we might all furiously agree on what's intended to be captured here, but there will be a future department, a future Director of Public Prosecutions and a future AFP that will have to actually apply what we're passing here. I was given comfort that this doesn't appear to be an offence that is of absolute liability. It still has, on my reading of it, the defence of honest and reasonable mistake. That is a common law defence that also exists in the Commonwealth Criminal Code, in section 9.2. That's fundamental because, again—and acknowledging the human in all of us—sometimes someone might miss the email, or they were sick when the brief was given, or they didn't fill the form in or they didn't pay their mobile bill and receive the confirmation of what they had asked for. Ignorance of the law is not a defence, but the defence of honest and reasonable mistake is more than that. The defence of honest and reasonable mistake is really explained in the words: it's 'honest', and that honesty is subjective to the person who is potentially being accused; and it's 'reasonable'—in an objective standard, a reasonable person would accept that excuse. And I'm glad that defence exists here.

The member for Fisher, quite rightly, said at the end of his address that we really need to make sure that the processing of these forms and the paperwork is done in a timely fashion, and I'll just give an example. Let's say someone has served for 10 years in the ADF and they want to apply to a consulting firm or a defence contractor, but that company or firm does engage in some capacity with a country or nation that has an ambiguity about whether this applies. To be on the safe side, their policy is to go get this approval. And if that approval take eight, 12 or 18 months, that person won't get hired. Eventually, they won't get asked, and we'll have the scenario where, through delay, veterans won't be employed in areas that they're highly suitable for. That's why the defence committee which is going to have oversight of this is so important.

I thank the PJCIS and the corresponding defence committee for the work they do; I know there's a lot of work put on the committee and I thank those who have cooperated to push this forward. I'm grateful that the defence of honest and reasonable mistake is in here; I think that's important, and I urge, as the member for Fisher did, for the future defence committee's oversight of the implementation of this scheme. Our 581,000 veterans are heroes; anyone who signs up to be a member risks having their family stand next to their coffin, as the Fitzgibbons did on Monday. For that, we owe them an enormous debt of gratitude. To then say that some of them will become criminals with an offence that's liable for 20 years, we had better be sure that it's right. We had better be sure. I commend the bill to the House.

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