Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

The incorporated speech read as follows—

The Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 will amend Part IIIAAA of the Defence Act 1903, which deals with the use of the defence force, including reservists, to protect Commonwealth interests, the states and self-governing territories, against domestic violence.

This amendment comes on the back of the legislative change that was put in place prior to the Sydney 2000 Olympic Games, but it is also designed to cater for emerging circumstances which may present themselves in the future.

The amendments enacted by the Parliament in 2000 reflected several recommendations from Justice Hope’s Protective Security Review (AGPS 1979), which found that assistance to civil authorities lacked accountability, was anachronistic and unsuited to the current environment. However, it was the potential for terrorist attacks at the Sydney Games which was a major catalyst for the legislation.

Section 51XA of the amended Act provided for a review of orders made under Part IIIAAA within three years of commencement. This review was completed by Mr Anthony Blunn AO, General John Baker AC DSM (retired) and Mr John Johnson AO APM QPM. The report was presented to the Minister for Defence in January 2004 and it is the recommendations from that review which form the basis for the current amendments.

Among items of note to come out of the report were:

• Part IIIAAA recognised only a narrow set of circumstances in which domestic violence might be likely to occur. While this was suited to the environment at the time of the original amendments, the Part does not reflect the current environment nor does it reflect the 2002 Leaders’ summit arrangements for Terrorism and Trans-national crime.
• Experience in application of the legislation has been gained only through planning and exercise activities, which revealed flaws that could inhibit the resolution of anticipated crises.
• Part IIIAAA is essentially based on siege and hostage concepts and does not cater for a wide range of possible terrorist scenarios, including that of a fast moving terrorist incident, of which now, unfortunately, we are all too aware can happen.
• Currently there is no provision for anticipatory operations by the Australian Defence Force, which may be required to protect Commonwealth assets. There are also several issues relating to the use of Reservists.
• Finally, there are still issues surrounding the rationality of actions in a military context and the consequent legal responsibility borne by the military.

The Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 seeks to correct the problems and anomalies that exist in the current legislation by making nine key changes to Part IIIAAA.

These are:

• ensure that any ADF elements (including the Reserves) can be employed effectively in operations in support of domestic security;
• provide for the Commonwealth to assume all responsibility regarding criminal offences committed by ADF personnel when operating under Part IIIAAA;
• allow the use of reasonable and necessary force when protecting critical infrastructure designated by the authorising Ministers;
• enable a response to incidents or threats to Commonwealth interests in the air;
• enable a response to incidents or threats to Commonwealth off-shore interests;
• provide for numerical identification of ADF personnel rather than name identification in certain circumstances;
• allow the broadcast provisions (which come under subsection 5 1K(2), and require a declaration of a general security area to be published) not to apply in circumstances which would jeopardise an operation;
• ensure that the powers under Part IIIAAA can be invoked in a mobile terrorist incident as well as in a range of threats to Australia’s security;
• provide expedited call-out arrangements where the authorised call-out is for a sudden and extraordinary emergency.

Among the submissions that were received by the committee for the inquiry into this bill, many were concerned with the provisions which would allow for increased use of the military in civilian settings, the so-called ‘militarisation of society’ and the accountability of the military in criminal offences which could occur under the legislation.

These are all fair concerns, but were dealt with in detail by members of the committee as part of the inquiry. The Greens would have us all believe that this Bill will lead to our troops running loose on our streets, but this is certainly not the intention of this Bill.

This Bill is a sensible change which would ensure that, should any circumstance emerge when a defence force response to domestic violence or a terrorist attack is required, the correct provisions are in place to enable this to occur.

Current restrictions on the use of Reserve Forces in domestic security procedures do not reflect the integrated nature of the defence force. In some situations, specialist skills may be required such that the Reserves or ADF personnel provide the best response.

At the moment, ADF personnel are required to wear surname identification while operating in an official capacity. This does not preserve the anonymity of specialist forces, which in some cases may be an operational imperative. A suitable numerical or other form of identification would ensure the identity of Special

Forces members is protected but ascertainable should the need arise.

Likewise, the requirement for radio or television broadcasts of a General Security Area or Designated Area could jeopardise a covert siege or hostage recovery operation. The Bill would reduce the notification requirement in such circumstances but otherwise appropriate public notification would remain a requirement.

In regards to concerns over the responsibility of ADF personnel involved in allegations of illegal activity, this Bill will provide that the CDPP will assume jurisdiction of any personnel when operating under Part IIIAAA. This ensures the ADF can prepare and train for potential security operations under a consistent legal framework and will allow for a uniform set of criminal laws to be applied in multiple jurisdictions in which ADF personnel may operate.

Creating a uniform criminal regime that applies to members of the ADF in a call out situation is consistent with Labor’s National Security Blue Print. This approach recognises that the ADF will need to be trained to operate in all State and Territory jurisdictions and it is not possible for serving members to become sufficiently familiar with the varying requirements of each jurisdiction’s criminal law. It is also probable that such domestic security operations could be cross jurisdictional.

While the explanatory memorandum of the Bill states that State or Territory Police would investigate criminal acts done or alleged to be done by ADF personnel, he Police Federation of Australia made a submission to the Se ate Legal and Constitutional Committee inquiry that this provision should be expressly stated in the legislation. It is intended to write to the Minister for Defence to request the Government agree to an amendment to include a note reflecting the terms of the Explanatory Memorandum.

The amendments do not change the Defence Act, or those provisions enacted in 2000 in relation to Part IIIAAA concerning the preclusion of these powers in industrial disputes or legitimate political dissent. To those who believe this Bill may infringe the rights of the average person, section 51G of the current Act provides that the Chief of the Defence Force must not stop or restrict any protest, dissent, assembly or industrial action, except where there is a reasonable likelihood of death or serious injury to persons or serious damage to property. This Bill, if enacted, would sit within the regime of the current Act and would be subject to the same protection.

In conclusion, the amendments contained within this Bill retain the existing processes provided in Part IIIAAA but provide greater transparency for the role of the ADF in domestic security operations. Labor’s concern is that the Government’s delay in bringing forward these reforms to Civil Call Out processes have resulted in these measures being; unavailable in the lead-up to the Commonwealth Games. If enacted, by the time these measures are in place the ADF will have around 40 days to train and prepare under the amendments.

Like everything this Government does, this amendment is overdue and has left our defence forces behind the ball in their preparations for protecting the community during the up-coming Commonwealth Games.

However, Labor welcomes the fact that the Government has finally recognised the problem and acted accordingly. Labor supports the amendments contained in the Defence Legislation Amendment (Aid to Civilian Authorities) Bill.