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

The amendments in the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 [2006] arise from recommendations from a statutory review of part IIIAAA conducted by Mr Blunn AO and General John Baker AC, DSM. This was tabled in the parliament on 2 March 2004 after having been delivered to the government, I am advised, in January of that year. The Senate might recall that the provisions of part IIIAAA, which were enacted in September 2000, at that time were quite controversial within the community and equally within the parliament but, judged in the light of unfortunate experience, were a necessary extension of the powers of the military to assist domestic policing authorities in the event of a civil emergency.

In summary, those existing laws enable the Governor-General to make a written order to call out the defence forces, they direct the Chief of the Defence Force to utilise members of the Defence Force to assist civilian policing authorities to protect Commonwealth interests against what is termed domestic violence and they also assist states in circumstances where the domestic violence is such that it is beyond the capacity of the states to deal with.

Significantly, the laws were passed prior to the September 11 2001 attacks on New York and Washington. The statutory review examined the laws in light of the lessons learnt from that event and unfortunate subsequent terrorist events. The statutory review made a number of observations which are quite pertinent: firstly, the processes involved in the civil call-out arrangement were time consuming, complex and limited the effectiveness of any eventual call-out; secondly, the current provisions are unsafely restrictive in being focused primarily on a siege or a hostage concept; thirdly, as experience has shown, security threats may be more mobile or occur at several different geographic locations within a limited time frame; fourthly, the current laws do not provide for anticipatory operations such as might be necessary to protect infrastructure or actually disrupt a terrorist event in its planning stages, prior to it coming to fruition; fifthly, restrictions imposed on the use of reserve forces are unjustified, particularly in light of the changing nature of operational requirements of the defence forces; sixthly, there is an unsatisfactory lack of clarity regarding the legal responsibilities of ADF personnel who can be called upon to undertake tasks in the various jurisdictions and territories in Australia.

Recommendations arising from the review provided the framework for the development of the amendments that we are now considering. I note, however, that the review was tabled in March 2004 and we are under time pressure to consider and pass these amendments some five weeks before the opening of the Commonwealth Games. The current minister cannot be held responsible for that situation, but by any objective assessment it is quite unsatisfactory.

By way of an aside, I note that the opposition has been criticised for insisting on mandatory review of national security legislation after a period of operation. I note that, in respect of the civil call-out provisions, that review has resulted in proposals being brought forward that will make the provisions more effective. Most notably, the review found that the existing laws do not reflect the evolving threat environment, including the unfortunate reality learnt by experience.

This was outlined in the Defence submission to the Senate Legal and Constitutional Committee. Those lessons include: terrorist techniques now commonly use innocent bystanders as targets rather than simply as hostages; mass civilian casualties are often a particular terrorist objective; suicide is now a common method of attack by terrorists; warning times of impending action might be extremely short or indeed nonexistent; the normal concept of deterrence arising from criminal law is not a realistic concept against terrorist groups or individuals who might be more intent on taking their own life to support their own particular cause; cooperation between agencies is essential in order to obtain better intelligence and conduct more sophisticated surveillance and border controls to provide adequate warning to the appropriate authorities; there is likely to be a greater call for anticipatory action possibly involving the ADF in order to respond to intelligence and secure potential targets indicated in those intelligence assessments; incidents may go beyond a single site and consist of a series of situations or involve rapid movement rather than one strategic location—and clearly the London bombings were an example of that; the potential use of chemical, biological, radiological or nuclear agents must be recognised as a reality; the totality of expertise that can be marshalled should be made available under the civil call-out regime; and a terrorist attack at one site might prompt the need for protective action to be taken at other geographic locations.

In addressing those realities broadly, the amendments can be broken down into three categories. The first category extends the call-out measures to new domains, the second category relates to improvements of procedural aspects and the third category relates to response to operational activities. In respect of the first group of amendments, which relate to extending into new domains, it can be regarded as an oversight that the original amendments to part IIIAAA did not extend to the maritime environment. Nor did they apply to aviation or to critical infrastructure, even in circumstances in which damage or destruction of that critical infrastructure would or could result in loss of life.

For those who are critical of the codification of Commonwealth powers in respect of these new domains, it should be recognised that advice is that power to utilise the military, particularly in respect of the aviation and maritime environment, is available under the general executive powers of the Commonwealth under sections 61 and 68 of the Constitution—and that is right on the point. It makes sense all round for the extent of those powers to be both codified and regulated from the point of view of training, effective operation and subsequent accountability.

In respect of the issue of critical infrastructure, some criticism has been advanced that, on a reading of proposed section 51T, there is empowerment for a member of the ADF to use force potentially causing death or injury to another. Further, that power extends to taking action to ‘protect against a threat to designated critical infrastructure’. In other words, the argument is based on questioning the extent to which members of the ADF should be empowered to use force to protect infrastructure. That argument, however, ignores the fact that before infrastructure can be designated as critical infrastructure under section 51C(b) of the act the authorising minister must believe, on reasonable grounds, that there is a threat of damage or destruction to that infrastructure. As well, the minister must believe that damage or destruction would directly or indirectly endanger life or cause serious injury to other persons. In other words, the decision, on advice, that the destruction of or damage to that infrastructure would result in the endangerment of life or serious injury is a decision that is appropriately made by two ministers.

It would be unrealistic, for instance, to expect individual members of the ADF to know the chemical dissipation rate of a particular poison dumped into a water supply system or the end consequence of termination of a power supply to an emergency ward in a hospital. Their job is to undertake orders in light of the decision made at ministerial level that the infrastructure is critical because the damage or destruction would directly or indirectly endanger life or cause serious injury to others. As such, the empowerment to use reasonable force is, we believe, one that is necessary and appropriate.

In respect of the creation of the aviation division within part IIIAAA, the existing provisions were enacted prior to the September 11 attacks on the United States, which clearly showed that threats from aircraft have the capacity to cause mass casualties. Currently, there are not provisions within the legislation to enable the ADF to conduct operations against air threats, but action has been taken under a broad interpretation of the extent of underlying executive powers—during the Commonwealth Heads of Government Meeting in 2002, for instance. We believe this is an unsatisfactory situation, because it has meant that ADF personnel involved in dealing with aerial threats have not been covered by specific statutory authorities and protections that currently apply to members of the ADF who might be called out in a land based civil call-out situation.

In essence, the proposed legislation would provide a mechanism whereby an aerial threat scenario could be identified, and members of the ADF called out as a preventative measure in anticipation of such a potential event. Examples could be the 2002 Commonwealth Heads of Government Meeting or, potentially, the forthcoming Commonwealth Games. The practical reality is that the existing mechanisms for call-outs are too cumbersome to address the speed of response required in respect of a potential aerial threat, and the new provisions effectively pre-authorise the Chief of the Defence Force to use the ADF to counter those threats if such were to materialise. With respect to those who have voiced concern about these provisions, I note that the proposed amendments essentially reflect the current practice of calling out the ADF under section 61 of the Australian Constitution but, by codification of those powers, provide a far more satisfactory regime for training, operation and accountability measures.

In respect of the creation of an offshore division within part IIIAAA, the amendments recognise the reality that the ADF is likely to be the principal agency equipped to conduct maritime counter-terrorism in related operations. It makes sense to ensure a consistent legislative approach for both land based and offshore activities. The significance of empowering the ADF to be called out in the maritime environment is, we believe, self-evident. Critical infrastructure such as oil and gas rigs, pipelines and shipping—including dangerous shipping that could be commandeered by terrorists before entering our ports—all arise as potential issues that it would be unwise and, indeed, irresponsible not to be addressed by government.

As mentioned, the second group of amendments seek to improve several procedural aspects of the current operation of the act. The first is known as the expedited call-out, which would apply in urgent and unforeseen circumstances and, in particular, in circumstances in which it would be inefficient and ineffective to undertake the comprehensive call-out procedures. An example that comes to mind is intelligence indicating that a tanker carrying petrochemicals or even ammonium nitrate had been commandeered by terrorists and that vessel was shortly to enter an Australian port. It is an example in which expedited call-out of special forces to board the vessel would be necessary.

The second area relates to having a common base for dealing with any possible breach of criminal law during the conduct of civil call-out by the ADF and having a standardised approach to prosecution. It is currently the case that members of the ADF who are called out to assist civilian policing authorities are required to comply with eight separate and distinct state and territory codes in respect of criminal conduct. This situation was acknowledged as an area that required attention by the Leader of the Opposition when releasing Labor’s national security blueprint.

In the blueprint the Leader of the Opposition noted the fact that Black Hawk helicopters to support counter-terrorism operations by Sydney based special forces units will be moved to Holsworthy in Sydney. Mr Beazley made this point:

If those soldiers had to fly in those Blackhawks to respond to a terrorist incident or the threat of a terrorist incident tonight, the powers of the state police they co-operate with would be different depending on whether they were flying north to Brisbane, south to Melbourne, or east to Sydney’s CBD ...

This, we believe, is a significant issue because the practical reality is that members of the ADF called out to assist civilian authorities might be involved in a situation where the use of force results in damage to property, injury and even potentially death. Clearly we would expect that in undertaking their duties members of the ADF would comply with relevant criminal law. The question is how to make that accountability operate in practice. This bill will ensure that a uniform set of criminal laws, being the laws of the territory of Jervis Bay, will apply to members of the ADF in the event of a prosecution resulting from their participation in a domestic security operation. That position will, of course, apply uniformly across Australia.

While the provisions will create a far better regime under which the ADF will be able to prepare and train for potential security operations, there are equally uncertainties that have been created. For instance, what law will apply to members of the ADF from the point in time that a call-out order is made and until they reach their designated post? I ask the minister to respond to that point in the committee stage of the bill.

Further complications arise in the context of where the scheme of the act is to preserve the authority of state and territory commissioners of police in respect of a situation of domestic violence. Questions arise as to whether that authority is dissipated by Commonwealth override of state criminal laws and the role of the state directors of public prosecution in respect of enforcing applicable criminal law. In short, while it is quite unrealistic to expect members of the ADF to become sufficiently familiar with the eight differing criminal justice systems that exist in the Australian states and territories, it must be questioned whether lack of consultation with the states and territories has actually complicated issues of accountability and authority.

The third category of amendments responds to the actual operational activity of members of the ADF who might be called out. In this category the amendments recognise that reserves have a vital role to play in civil call-out and that the present restriction on calling out reserves to assist civilian authorities cannot be justified. In particular, it might be the case that reservists have particular chemical, biological or other expertise that is not available, or not available to the required standard, within the regular defence forces. The proposed amendments also clarify appropriate methods of identification of members of the ADF, particularly those who might be special forces. In particular, the current legislation requires all ADF members to wear appropriate uniform and name identification. In respect of the special forces, it is recognised that another form of identification is appropriate to protect their anonymity but to enable appropriate accountability. It is therefore proposed that alternative identification such as a number might be utilised in those situations.

The amendments in this category also recognise that modern threats can sometimes be mobile and not fixed in terms of location. Again, the London bombings is a recent unfortunate example of how the current legislative provisions may be too restrictive insofar as they are very location specific. Finally, in respect of this category of amendments concerning operational activities, the proposed amendments recognise that, in certain circumstances, as a matter of tactics and operational procedure, it may be prejudicial to broadcast in advance the areas where military action might be taken. Obviously, notification of an area where military action might be taken is desirable from the point of view of informing the public, if only so that the public can avoid the area. Equally, however, it has to be recognised that such notification may alert potential terrorists to the nature of protective and preventive activity, diminishing the success of that operation and its ability to protect the public. In that context, the legislation appropriately imposes constraints on where and when that procedure can be utilised.

In conclusion, the opposition supports these national security measures but believes the pressure of time has prevented appropriate analysis of the interaction between state and territory laws. Accordingly, the opposition reserves our position in respect of recommendations of the Senate Legal and Constitutional Legislation Committee and proposes to move a second reading amendment. I understand that a second reading amendment has been circulated in my name. I will briefly speak to that now. It is an amendment to schedule 6, item 13 after subsection 51WA(4).