Marise Payne (NSW, Liberal Party) Share this | Hansard source

I want to make some brief remarks in relation to the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 [2006] which the Senate Legal and Constitutional Legislation Committee had the opportunity to consider in inquiry and hearings last week. The committee tabled its report on the bill yesterday. The bill is intended to amend part IIIAAA of the Defence Act 1903. It makes consequential amendments to both that act and other defence legislation. As Senator Bishop alluded to, and was alluded to in the second reading speech by Senator Coonan towards the end of last year, these amendments proposed for the Defence Act 1903 are drawn from recommendations made in the Blunn report which was undertaken as a statutory review of part IIIAAA.

The intention is to improve the responsiveness of the Australian Defence Force to domestic security incidents, in particular in the current threat environment. I think it is fair to say that that was the context in which the Legal and Constitutional Legislation Committee, in its consideration of the proposed amendments in the bill, held its hearings, received its submissions and made its report. Broadly speaking, the amendments will permit the utilisation of the Defence Force to protect the states and the self-governing territories against domestic violence—as it is referred to in the Constitution—and to protect Commonwealth interests. The amendments have a number of provisions. I would like to go through those, firstly, and then come to the committee’s report.

The amendment bill provides that the Commonwealth assume all power with respect to criminal offences committed by ADF personnel when they are operating under part IIIAAA of the act. It ensures that any ADF elements—and that includes the reserve forces—can be employed effectively in operations in support of domestic security. It allows the use of reasonable and necessary force when protecting critical infrastructure which is designated such by the authorising ministers. It enables the call-out of the ADF to respond to incidents or threats to Commonwealth interests in the air environment. Similarly, it enables the call-out to respond to incidents or threats to Commonwealth interests in the offshore areas. It ensures that ADF members who are acting under division 2 are not required to wear a surname and identification if those same members are also called upon to act under division 3. It provides that, in the event that the broadcast of acts under division 3 would jeopardise an operation, the broadcast provisions which are outlined in section 51K(2) of the act do not apply. It ensures that the powers conferred to the ADF under part IIIAAA can be accorded to the ADF in the course of dealing with a mobile terrorist incident and a range of threats to Australia’s security. It also provides expedited call-out arrangements where the Prime Minister or the other two authorising ministers authorise call-out and the CDF utilises the ADF in the event of a sudden and extraordinary emergency. I understand that government amendments to that particular component of the bill have been flagged and were certainly discussed in the process of hearing with officers of the Department of Defence.

The committee did not receive a large number of submissions on the bill, but many were, as ever, very learned and helpful to the committee in its consideration of the provisions. In relation to the observations the committee made in its report, I want to refer particularly to some of these new call-out provisions. The existing legislation, as we heard and as was observed by a number of submitters, has been criticised for its ‘static approach’, as I think it has been described. I understand that the departments and agencies who were consulted by Mr Blunn and his colleagues for the review universally agreed that the current application of part IIIAAA is very narrowly focused, and so narrowly focused in fact that it is not of great use in any situation but that of a limited siege-hostage situation—and even then it has constraints which make it cumbersome.

What this amendment bill will assist in, it is envisaged, is a far more flexible and responsive capacity for the ADF and for the protection of Australia. As I indicated in my earlier remarks, it does provide for four additional call-out mechanisms: in relation to critical infrastructure, incidents offshore, aviation incidents and, of course, the question of an expedited call-out.

The committee received a number of submissions raising concerns about what could be described as a blurring of a police and military function. Whilst we considered those—and in fact made specific reference to them in our report—I think the weight of evidence and the view of the committee was that those concerns now need to be weighed against the reality of quite changed security circumstances, not just for Australia but for a number of countries around the world, and that, on balance, the initiatives contained in the bill are an appropriate response to ensuring we are best prepared to meet those changed circumstances.

There was some discussion, both at the committee and in submissions, about references in the department’s submission, in the second reading speech and in other discussions about whether the call-out powers are indeed a last resort. That reference was made but it is not specifically referred to as such in the bill. That discussion led the committee to recommend in its report that the amendments to part IIIAAA should indeed include a statement of intent: that the part should only apply when all other avenues of response have been considered and rejected. I wait to hear the government’s response on that matter.

As Senator Bishop alluded to, there are extensive amendments in relation to the application of criminal laws which will come into effect when the ADF is engaged in such a call-out. After taking evidence on this particular issue and after considering the responses provided to the committee by the Department of Defence and at the hearing itself, we did consider that it is important for there to be a consistent framework for the application of criminal laws to members of the ADF when they are participating in such a call-out. That is not possible if members of the ADF have to contend with the differing criminal laws of all of the jurisdictions in Australia, and so the application of the laws of the Jervis Bay territory, as provided for in this bill, address a number of those concerns.

I want to make a couple of brief points in relation to the use of the reserve forces, because it was a matter considered at some length during the committee’s hearing. One observation I would make is that the changed nature of the reserve forces in Australia—a change in their capacity, in their skilling and in their engagement in military activities—is perhaps not appreciated as fully as it might be by some of those who made submissions to the committee. This is an area to which this government has paid a great deal of attention in recent years and, as the witnesses from the department observed on the day of the hearing, it is in fact the case that the reserves now are very much integrated into certain parts of the force structure, and that does fit them adequately for participation in call-outs such as those envisaged in the bill.

As the report notes, the key issues here are about training and capability of both the units and the individuals concerned. That is not just a matter for the reserves; it is a matter common to the permanent force as well and one which, in the committee’s view, is appropriately left, in the bill and under the act, to the discretion of the Chief of the Defence Force. That person is, after all, best placed to determine the most appropriate deployment of members of the ADF.

To conclude: the underlying principles that inform the operation of part IIIAAA remain the same as they were under the original Defence Act. The first principle is that the ADF should only be called out as a last resort where civilian authorities are unable to deal with an incident. That matter was also discussed in consultation with the states and territories. It was raised with us by the Police Federation and by other submitters. The second of the principles is that, where the ADF is called out, civil power remains paramount. The third principle is that ADF members remain under military command. The fourth principle is that, if called out, ADF members can only use force that is reasonable and necessary in the circumstances, and the fifth principle is that ADF personnel remain subject to the law and are accountable for their actions.

In making our report, the committee resolved that we believe that the bill does meet an identified need for legislation that effectively clarifies the rules for the call-out of the ADF in the current security environment and extends the provisions for that call-out to such events as aviation incidents and offshore incidents to reflect that security environment. The proper application of these powers, which are indeed considerable—and that has been acknowledged along the way by the committee and members of the committee—will continue to require a high degree of training for ADF personnel and, indeed, the support of a well-crafted military doctrine, as the report says.

One issue which I did raise in the hearing process concerns the training of members of the ADF to exercise what are largely regarded in this country as police powers, particularly in relation to search and seizure. I think it is important that that training process be a high priority and be made explicit and not left to the mystery and fog of some activities of the ADF so that we in both the parliament and the general public can be confident that the training has been carried out effectively and comprehensively. Other than those caveats to which I have referred, the committee recommended that the bill proceed.