Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

The Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 [2006] deals with important matters. For that reason, I think it needs to be said up front that it has been brought forward in too hasty a manner and has not had the sort of scrutiny that I think it should have had, notwithstanding the consistently fine efforts of the Senate Legal and Constitutional Legislation Committee. I think there has also been a less than desirable amount of consultation with the states because, on the rare occasions that defence personnel are called out, it is likely to be in situations where there has been or probably still is police involvement as well. That is less than desirable and that needs to be stated up front.

The legislation is amending powers that already exist, particularly powers that were codified under legislation of the same name from 2000. That legislation was also put through rather hastily, on that occasion with the rationale of the upcoming Sydney Olympic Games. On this occasion, I think one of the rationales given is the upcoming Commonwealth Games in Melbourne. I am not sure if there is a pattern emerging whereby every time we have a major international sporting event we slip in some major legislation regarding this sort of issue on its coat-tails as a way of pushing it through quickly. Whatever that pattern might be, I think it is not desirable to have that haste occur on issues as important as this.

The reason that that haste is not desirable is not just because of the risk that inadvertent consequences may occur, that the legislation may not be drafted as precisely as it should be or that there may be flaws within it but also because it does leave the issue open to different understandings, to misinterpretations and to greater apprehensions than there might otherwise be. I think it is important that, when we are dealing with a matter such as the potential call-out of our defence forces for use within Australia, we do so in a very measured way. It is a very serious matter, and there is a very long history, which I will not go into today, about why there is such an apprehension about using defence forces in your own country.

There is apprehension in the community about the threats from terrorism. Balanced against that, there is apprehension in the community about whether the legislative responses to those threats should give government and government officials and agencies undue power or power that could potentially be misused, down the track, against Australians and people living in Australia. We have had that debate as well, more particularly with regard to the security laws. As I said a few times with regard to that—and it did come up during the Senate committee inquiry—there is apprehension, particularly amongst Australia’s Muslim communities, that they are the target of or are potentially open to being targeted by some of these extra powers in a way that would be unjust and they have inadequate protections against that. When that fear exists, as it does—and that was mentioned in evidence, in passing but nonetheless mentioned, by one of the witnesses from the Muslim Civil Rights Advocacy Network—I think it is important that, in discussing legislation like this, we do it in as measured and sober a way as possible, because we do not want the misapprehension developing in the community that the Defence Force may be called out at the drop of a hat at any civil disturbance at all and have guns trained on Australians. That is not the reality of what this legislation allows, and the prospects of it happening are remote in the extreme.

That is one of the reasons why rushing legislation like this is less than desirable, because it can enable undue concerns to arise. There are nonetheless legitimate concerns about the legislation and they are touched on to some extent in the committee report, and Senator Payne, the chair of that committee, has mentioned them. In raising those concerns on behalf of the Democrats, I want to make it very clear that that should not be misinterpreted as our saying that we do not believe these powers might be needed and should therefore not be considered for legislation. But we do say that we need to make sure that there are protections against those powers being misused. They are some of the concerns that we have.

The Democrats do not dispute that there are dangers—new dangers and new situations that we need to respond to—and codifying how those responses might occur is wise, but I believe there are flaws in how it is being done. Part of the key debate with the major legislation back in 2000 was about the importance of putting in place some form of legislative framework. There is no doubt that the powers already existed. Of course, prior to 2000 there had been call-outs of the Defence Force on rare occasions within Australia. The powers already existed under the Constitution, but they were not codified in any way. Using the Defence Force in any situation like this and having to rely on the vagaries of common law to determine where the boundaries might be for the power they can use, I think, would be far from satisfactory. Putting in place a legislative framework actually can contain those powers, potentially, rather than expand them.

In raising those concerns, it is not saying that these sorts of issues should not be put in legislation but more that there are inadequate protections. Senator Payne referred to one of them, which is the recommendation of the committee that it be made explicit in the legislation that these powers only be used as a matter of last resort when all other matters had been considered. That was the assurance given in the second reading speech by the government, but it does not appear in the legislation. I am concerned that it also does not appear that the government has responded positively to that recommendation because it does not appear that that has been addressed in the government amendments that have been circulated. That is certainly a concern.

The Labor Party amendment that Senator Bishop has foreshadowed also goes to a perceived inadequacy in the legislation. The amendments that Senator Brown has circulated again go to looking to address potential inadequacies in the scrutiny of the use of these powers, particularly around the issue of use of force—naturally enough the most controversial area. It is not the fact so much that troops might be called out; it is what they might be able to do. Obviously, that issue of their ability to use force where necessary is always going to be the most contentious. The amendment that I have had circulated goes to that issue as well. It does not seek to prohibit the use of force but seeks to make it absolutely beyond doubt that, if force is used, it does not include anything that could be seen as torture. The current wording in the legislation is:

... in exercising powers ... a member of the Defence Force must not ...

(b)

subject the person to greater indignity than is reasonable and necessary in the circumstances.

I believe—and indeed similar views were raised by the Human Rights and Equal Opportunity Commission and also in the submission from Dr Ben Saul—that that wording does not offer sufficient protection. The Human Rights and Equal Opportunity Commission also drew attention to a repeated use of the phrase ‘in the use of these powers that consideration must be given to our international obligations’.

Giving consideration or having regard to our international obligations, particularly under the International Covenant on Civil and Political Rights, is not the same as ensuring that we comply with those obligations. Certainly it is the Democrats’ view that it should be made crystal clear that these powers will only be used in a way that is consistent with that convention, particularly article 6, which deals with the right to life. Rather than saying that we will have regard to or give consideration to that convention and that obligation, it has to be consistent with it. That is the rationale behind the Democrat amendment, which tries to tighten up the wording so it does not simply say, ‘must not subject the person to greater indignity than is reasonable and necessary in the circumstances’, but says that people will not be forced to endure any form of treatment which contravenes the convention against torture.

I think that is particularly important given the debate around the world at the moment about whether torture is now being seen as a legitimate weapon in the battle against terrorism. In raising this matter, I do not in any way suggest that members of the ADF are likely to or have a mind to in any circumstance inflict torture on people. I am saying that, when we are putting forward legislation that allows the use of force in these extreme circumstances, it sends an important signal if we put it in that legislation and affirm it in a crystal clear way that we reject, as a parliament and as a country, the use of torture under any circumstances. I think that is particularly important given the wider global debate.

In all of the explorations of these issues by this Senate and by Senate committees about the potential use of torture in places like Iraq by coalition forces in recent times, clearly there has not been a single scrap of evidence that Australians have been involved in that. Indeed the evidence, such as there is, is that Australians have raised concern about the potential use of torture by others, as have British authorities in some circumstances.

But the fact is that Western nations, particularly the United States, are being seen to toy with the idea, to put it politely, that torture may be appropriate in some circumstances. There is an obvious concern that that raises with many people around the world, and there is the obvious counterproductive and destructive aspect of such an approach. In my view, it makes it much more difficult to address and overcome some of the challenges presented by the terrorism threat. If democratic governments are going to be seen to acquiesce to or accept activities like torture, all you do is increase the spiral and cycle of violence. I believe it would be a very positive move of wider value to specify Australia’s rejection of such an approach when we define what is an acceptable use of force by our defence personnel in exceptional circumstances. I ask the Senate and the government to give serious consideration to the amendments that the Democrats have circulated.

There are wider issues about where the constitutional limits are on the ability of the federal government to call out our defence forces domestically. Clearly, there are powers under the Constitution for that to be done if it is requested by the states. In those circumstances, there is no dispute, and one would hope that there is always the opportunity for consultation and cooperation in that regard. Where it becomes a less clear situation is when there is not a specific request from the states and the Commonwealth is using its executive powers in the more general sense. As with these areas, I do not think you could ever be definitive about what fits in and sits outside the constitutional powers.

Concerns were raised by people with some expertise during the Senate committee process about this matter. There is an obvious risk that, if troops are used in a situation and harm is caused to somebody and it is later found that the call-out of those troops was unconstitutional, that raises a very serious potential problem. Those concerns and debate about that were also raised with the legislation in 2000. There is nothing new in this legislation that expands that concern. Inasmuch as there were unresolved questions about the constitutional limits or constraints of this power and where they might lie, I do not believe there is anything new in this bill that expands that concern any further.

Obviously this bill expands powers, or the scope for call-out in certain circumstances, but those that say that this bill expands the opportunity to circumvent constitutional protections I think are misunderstanding the situation. Where there are clear constitutional protections, legislation of course cannot override the Constitution. The issue is around the uncertainty of where the limits lie. I do not think anyone can ever categorically establish that until, and if, one gets a High Court case to consider that matter, and hopefully there will not be a circumstance where we need to define that.

In summary, there are concerns with the legislation, but not with the fact that it exists. The Democrats do not dispute the fact that powers could be needed in extreme circumstances, nor do we dispute the desirability of codifying those powers. We do have concerns about whether or not that is done adequately on this occasion.

I emphasise, to put it clearly on the record, that there are specific aspects of the legislation that I believe are desirable. The decision to remove the restriction on the use of reserve forces, on balance, is appropriate. There has been a change in the way the reserves are used, and assuming the powers are being used appropriately in the rare circumstance of calling out the troops then calling out reserves as part of that should at least be an option. That aspect is not something that I believe is a problem. On balance it is an appropriate move, although there were some concerns raised about it in submissions to the committee.

The enabling of the call-out of the ADF to respond to incidents or threats to Commonwealth interests in the air and offshore is in itself a wise move. Again, one could say the power was there but was not codified, but I think to codify it is appropriate. The issue is how those powers are defined, but the clarifying of the ability for the call-out powers to apply to activities in the air and offshore is appropriate.

But concerns remain, and we will expand on them further in the committee stage, about some less than tight wording of some aspects of these powers. Those are in the context that one of the other changes in this legislation enables the Prime Minister alone in certain circumstances to make written or verbal call-out orders. There is the issue of rapid response that can apply in the sorts of incidences that may arise in the modern era, and I acknowledge those, but to enable just one person to make a verbal call-out order is a very big power. It is quite a significant change, and I do not think that the circumstance and the issues surrounding it have been given as much scrutiny as they should have—it brings me back to where I started—because of this being more rushed than it needed to be. That is always a danger in any situation when we are setting the laws, let alone in areas as important as this.