Russell Trood (Queensland, Liberal Party) Share this | Hansard source

It is a good opportunity to participate in this debate—the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 [2006] is an important piece of legislation—particularly after Senator Brown’s rather incendiary contribution to the discussion. The legislation does raise important issues. It is certainly true that, in relation to the evidence before the Legal and Constitutional Legislation Committee, some concerns were expressed about the general direction of the legislation—in particular, the anxiety that some witnesses expressed that it would result in an increasing militarisation of Australian society or that the boundaries between civilian and military authority in Australia would become increasingly blurred and that that was an undesirable development in Australian political culture. I agree with that. I think that, if that were to be the case, it would be an undesirable development in Australian political culture because that has not been our tradition. It has been our tradition in Australia to keep, generally speaking, some separation between the use of our military forces and indeed the use of our policing forces for essentially domestic situations where police forces are of course uniquely well trained.

But I have to say that I think that the fears that have been expressed on this subject have been overstated. Over the 100 years since Federation, there have been many occasions on which the Australian defence forces have been called out. They have been called out, of course, in response to natural disasters, in support of government agencies. They have been asked to provide essential services in the event of strikes—in 1949, in 1953, in 1981 and in 1989. They have been asked to come out in support of the protection of Commonwealth facilities in relation to the possible hijacking of aircraft. Of course, contingency arrangements were made in relation to the Olympic Games in Sydney. I think the one occasion when the Australian defence forces were called out in support of a particular danger of the kind that is envisaged in this bill was in relation to the Hilton bombing in 1978. There is certainly a history of the Australian defence forces being called out in support of civilian needs.

But what is significant about these numerous precedents is that there has been not one occasion in over a century of these call-outs when the soldiers have ever fired upon an Australian citizen. I think that tells us something about the way in which governments since Federation have looked upon this particular power. They see it as a power which is only to be used in particular dire and difficult circumstances. It is not a power that is used, generally speaking, when a Prime Minister has a whim that he wants to suppress some kind of civilian disturbance or something of that kind, as Senator Brown has intimated; it is a power which is used only in very direct circumstances.

The important thing about this bill is that it constrains the circumstances in which that power can be used. It does not give a general authority on behalf of the government to be able to go out and use this power when it seeks to do so; it actually sets down criteria and establishes thresholds. It establishes circumstances in which the power can be used. It is appropriate that the bill should do that. I think many of the fears that have been raised by the witnesses to the legislation committee and also in some of the contributions to the debate this morning have overstated the anxiety that perhaps follows from parts of this bill.

My colleague Senator Payne has been through many of the provisions and matters which were discussed before the Legal and Constitutional Legislation Committee of the Senate. I do not want to spend a great deal of time on them. I just want to make a quick point on the criminal questions which arise in relation to this bill. The bill in fact seeks to plug a shortcoming which exists in the legislation with regard to accountability. I think we are all agreed that there ought to be a measure of accountability when force is used in Australia, whether it is on behalf of the police force or whether it is calling out the Australian defence forces. Those Australian defence forces, when they are called out, ought to be accountable, and they ought to be accountable to some kind of criminal jurisdiction—as indeed defence forces are if they are called out in relation to defending Australian interests overseas, where of course we have the law of armed conflict which applies and which is expanding as time goes on.

It is entirely appropriate that there should be a measure of accountability within the context of the call-out of these forces. Some suggestions have been made in the evidence—and Senator Brown has reiterated them, as has Senator Bartlett—that these provisions do not actually go far enough. They want a rather more restrictive regime, one which actually gives a greater degree of accountability in relation to the call-out of forces. I want to make two quick points about that.

The first point is that the call-out of Australian forces is an exercise of the executive power of the Commonwealth. It may be that that power is being used in support of the states and territories and in particular with regard to certain threats that states and territories see but, in fact, it is the executive power of the Commonwealth which is being used, and it is being used in support of those states and territories where that particular circumstance arises. So the use of executive power puts the use of these forces in a unique position. Because they are in a unique position, it is desirable that they are subject to a unique arrangement. That unique arrangement is that they should be accountable to the Commonwealth rather than to the states and territories. So the bill provides that the Director of Public Prosecutions should be the prosecutorial authority should a prosecution actually be needed.

The second point is that the bill also provides that the laws of the Jervis Bay Territory, which I understand essentially means the criminal laws of the ACT, will apply. It also requires that the Director of Public Prosecutions will at some juncture make a judgment about whether or not a prosecution should take place. Before the Senate Legal and Constitutional Legislation Committee, there was some suggestion that there was an inclination on the part of directors of public prosecutions to be somewhat biased and that we needed a further measure of protection against the bias of the DPPs. I must say, I find that a curious challenge given the fact that most federal and state DPPs around the country jealously guard the particular powers which they have. They regard themselves as independent. DPPs in Queensland and, indeed, New South Wales notoriously are offended by any suggestion that they take a partisan view. There is no reason that I can see that, in relation to this particular piece of legislation, a federal DPP might not equally take an unbalanced view as to whether or not a prosecution should be launched. So there are anxieties here but, to my mind, they are anxieties which can be eased by a close examination of the bill.

I commend the bill to the Senate. I congratulate the chair of the Senate Legal and Constitutional Legislation Committee, Senator Payne, for her conscientious leadership of the discussion on the matter and, in particular, I congratulate the committee staff who worked under tight deadlines and who were required to produce a report in a very short time. They did a very good job, as usual.