Mark Bishop (WA, Australian Labor Party, Shadow Minister for Defence Industry, Procurement and Personnel) Share this | Hansard source

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.